EXHIBIT 4.11
EXECUTION COPY
MDP ACQUISITIONS PLC
and
DEUTSCHE BANK AG LONDON
As Book-Entry Depositary,
DEUTSCHE BANK AG LONDON
As Note Custodian
and
THE OWNERS OF BOOK-ENTRY INTERESTS
in
EURO 100,000,000 15.5% Subordinated Notes due 2013
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EURO DEPOSIT AND CUSTODY AGREEMENT
DATED AS OF OCTOBER 2, 2002
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EURO DEPOSIT AND CUSTODY AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of this 2nd day of
October, 2002 by and among MDP Acquisitions plc, a public limited company
incorporated and existing under the laws of Ireland (the "Issuer"), which is
party hereto for the limited purposes referred to herein, Deutsche Bank AG
London, as the "Book-Entry Depositary" (as defined below), Deutsche Bank AG
London, as the "Note Custodian" (as defined below), and owners from time to time
of Book-Entry Interests.
ARTICLE ONE
DEFINITIONS AND OTHER GENERAL PROVISIONS
SECTION 1.01 DEFINITIONS.
The following terms, as used herein, have the following meanings:
"Additional Amounts" shall have the meaning ascribed to it in
Section 2.15 hereof.
"Affiliate" shall have the meaning ascribed to it in the Indenture.
"Applicable Procedures" means, with respect to any transfer or
transactions involving a Global Note or beneficial interests therein, the rules
and procedures for any Depositary for such Note, to the extent applicable to
such transfer or transaction and as in effect at the time of such transfer or
transaction.
"Board Resolution" shall have the meaning ascribed to it in the
Indenture.
"Book-Entry Depositary" means the party named as such in this
Agreement or its nominee or the custodian for either until a successor shall
have become such pursuant to Section 3.08 hereof, and thereafter "Book-Entry
Depositary" shall mean its successor or its nominee or the custodian for either.
"Book-Entry Interests" means beneficial interests in any
Certificated Depositary Interests issued pursuant to this Agreement and
reflected on the records maintained by the Book-Entry Depositary, which are
eligible for trading through the book-entry system of a Depositary. References
to Book-Entry Interests in a Global Note should be understood to mean Book-Entry
Interests in the Certificated Depositary Interest issued with respect to such
Global Note.
"Business Day" shall have the meaning ascribed to it in the
Indenture.
"Certificated Depositary Interest" means a certificate (in
substantially the form of Annex A hereto) representing an interest in a Global
Note held by the Book-Entry Depositary that (i) shall at all times prior to the
issuance of Definitive Notes in respect thereof represent the right to receive
100% of the principal, premium (if any), interest, Additional Amounts (if any)
of, and Liquidated Damages (if any) in respect of, the underlying Global Note
and the right to
require the Book-Entry Depositary to procure the issue of one or more Definitive
Notes representing up to 100% of the principal amount represented by such Global
Note and (ii) is issued by the Book-Entry Depositary to a Depositary or its
nominee.
"Clearstream" means Clearstream Banking, SOCIETE ANONYME.
"Common Depositary" means Deutsche Bank AG London or its successor,
as common depositary for Euro clear and Clearstream, their successors or
nominees.
"Company Order" shall have the meaning ascribed to it in the
Indenture.
"Corporate Trust Office" means the offices of the Book-Entry
Depositary in London, England, at which any particular time its corporate trust
business shall be principally administered, which at the date hereof is located
at Xxxxxxxxxx Xxxxx, 0 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX. The Corporate
Trust Office will at all times be outside Ireland.
"Definitive Notes" shall have the meaning ascribed to them in the
Indenture.
"Depositaries" means, Euro clear and Clearstream or, as appropriate,
the Common Depositary for Euro clear and Clearstream and the nominee of any of
these, and any successor of any of these as the owner of the Certificated
Depositary Interests and indicated as such in the records of the Book-Entry
Depositary.
"Event of Default" shall have the meaning ascribed to it in the
Indenture.
"Exchange Offer" shall have the meaning ascribed to it in the
Indenture.
"Euroclear" means Euro clear Bank S.A./N.V.
"Global Notes" shall have the meaning ascribed to them in the
Indenture. References to the "Global Notes" shall mean each of the Regulation S
Global Notes and the Rule 144A Global Notes.
"Holder" shall have the meaning ascribed to it in the Indenture.
"Indenture" means the Euro Indenture of even date among the Issuer,
Deutsche Bank Trust Company Americas, as Trustee, Deutsche Bank Luxembourg S.A.,
as Paying Agent and transfer agent, and Deutsche Bank AG London as Principal
Paying Agent and transfer agent, relating to 15.5% Subordinated Notes due 2013
of the Issuer as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental thereto entered
into pursuant to the applicable provisions thereof, including for all purposes
the provisions of the TIA that are deemed to be a part of and govern such
instrument.
"Issuer" means the party named as such in this Agreement until a
successor replaces it pursuant to the applicable provisions of the Indenture
and, thereafter, means the successor.
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"Note Custodian" means Deutsche Bank AG London at its corporate
trust offices at Xxxxxxxxxx Xxxxx, 0 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX,
in its capacity as custodian of the Global Notes and its successors.
"Notes" shall have the meaning ascribed to them in the Indenture.
"Officers' Certificate" shall have the meaning ascribed to it in the
Indenture.
"Opinion of Counsel" means a written opinion from legal counsel, who
may be counsel to the Issuer and who shall otherwise be reasonably satisfactory
to the Book-Entry Depositary.
"Participants" shall have the meaning ascribed to them in Section
2.02.
"Person" shall have the meaning ascribed to it in the Indenture.
"Regulation S Global Notes" shall have the meaning ascribed to them
in the Indenture.
"Responsible Officer" means, with respect to the Book-Entry
Depositary, any director, managing director, vice president, assistant vice
president, corporate trust officer, assistant corporate trust officer,
secretary, assistant secretary, treasurer, assistant treasurer, associate or any
other officer or assistant officer of the Book-Entry Depositary customarily
performing functions similar to those performed by the persons who at that time
shall be such officers having direct responsibility for the administration of
this Agreement, and also means, with respect to a particular corporate trust
matter, any other officer to whom such trust matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"Restricted Period" means the period of 41 consecutive days
beginning on and including the later of (i) the day on which Notes are first
offered to persons other than distributors (as defined in Regulation S under the
Securities Act) in reliance on Regulation S and (ii) the day on which the
closing of the offering of the Notes occurs.
"Rule 144A Global Notes" shall have the meaning ascribed to them in
the Indenture.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"TIA" shall have the meaning ascribed to it in the Indenture.
"Trustee" means the Person acting as Trustee under the Indenture
until a successor Trustee shall have become such pursuant to the applicable
provisions of the Indenture, and thereafter "Trustee" shall mean such successor
Trustee.
"Unrestricted Global Note" means a Global Note other than a Rule
144A Global Note (but which may be a Regulation S Global Note), with respect to
which Book-Entry Interests therein may be transferable without material
restriction under the Securities Act.
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SECTION 1.02 RULES OF CONSTRUCTION.
Unless the context otherwise requires: (1) a term has the meaning
assigned to it; (2) any capitalized term not otherwise defined herein shall have
the meaning ascribed to it in the Indenture; (3) "or" is not exclusive; (4)
"including" means including without limitation; (5) words in the singular
include the plural and words in the plural include the singular; and (6) the
words "herein," "hereof" and "hereunder" and other words of similar import refer
to this Agreement as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE TWO
BOOK-ENTRY INTERESTS
SECTION 2.01 DEPOSIT OF THE GLOBAL NOTE.
The Note Custodian hereby accepts custody of the Global Notes for
and on behalf of the Book-Entry Depositary and shall act as custodian thereof
for and on behalf of the Book-Entry Depositary in accordance with the terms of
this Agreement. The Note Custodian shall hold such Global Notes at its corporate
trust office in London, England or at such other place or places outside Ireland
as the Book-Entry Depositary may determine with the prior written consent of the
Issuer and the Book-Entry Depositary shall issue a Certificated Depositary
Interest with respect to each Global Note in accordance with the Applicable
Procedures. For the avoidance of doubt, the Book-Entry Depositary shall not act
out of or through any branch in Ireland in connection with any of the functions
contemplated by this Agreement. The Certificated Depositary Interests shall be
issuable only to a Depositary. Nothing in this Agreement shall affect the legal
rights of the Holder of any Global Note or the obligations of the Issuer or the
Trustee to such Holder.
SECTION 2.02 BOOK-ENTRY SYSTEM.
(a) Upon acceptance by the Depositaries of the Certificated
Depositary Interests representing interests in the Global Notes for entry into
their book-entry settlement system in accordance with the Applicable Procedures,
Book-Entry Interests will be issued by the Depositaries and traded through the
book-entry systems of the Depositaries, and ownership of such Book-Entry
Interests shall be shown in, and the transfer of such ownership shall be
effected only through, records maintained by (i) the Depositaries or (ii)
institutions that have accounts with the Depositaries ("Participants").
Book-Entry Interests shall be transferable only as units representing authorized
denominations of the Notes and in the manner contemplated by the Indenture.
(b) Except as provided in Section 2.05, no owner of Book-Entry
Interests shall be entitled to receive a Definitive Note on account of such
ownership or in exchange for beneficial interests in Global Notes and such
owner's interest therein shall be shown only in accordance with the Applicable
Procedures.
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SECTION 2.03 PROCEDURES IN THE EVENT OF AN EXCHANGE OFFER.
Upon receipt by the Book-Entry Depositary or the Note Custodian as
holder of the Global Notes for on behalf of the Book-Entry Depositary of notice
of either the commencement of an Exchange Offer or the implementation of
arrangements permitting the resale by holders of Notes pursuant to the
registration provisions of the Securities Act, the Book-Entry Depositary or the
Note Custodian will forward to the Depositaries materials relating to such
Exchange Offer or other arrangements with any additional instructions applicable
to owners of Book-Entry Interests. In the case of an Exchange Offer, upon notice
by the Depositaries of the principal amount of Book-Entry Interests in the
Regulation S Global Note or the Rule 144A Global Note (as applicable) tendered
in response to the Exchange Offer, the Book-Entry Depositary or the Note
Custodian shall (i) deliver to the Trustee that portion of each Global Note with
respect to which Book-Entry Interests have been tendered and received in
exchange therefor (to the extent such portions of such Global Note are accepted
pursuant to the Exchange Offer) and shall receive from the Trustee a new
Unrestricted Global Note in like principal amount as the Book-Entry Interests
tendered in respect of such Global Notes which such new Unrestricted Global Note
shall be substantially in the form of the Global Note set out in Exhibit C of
the Indenture, (ii) issue to the applicable Depositaries a new Certificated
Depositary Interest representing an interest in the new Unrestricted Global
Note, (iii) record any changes in the principal amount of the Certificated
Depositary Interests representing interests in each of the Regulation S Global
Note, the Rule 144A Global Note and the Unrestricted Global Note and (iv) notify
the Depositaries of any such changes. Book-Entry Interests in each Unrestricted
Global Note shall be assigned a Common Code and ISIN number different from those
assigned to Book-Entry Interests in the Rule 144A Global Notes or the Regulation
S Global Notes (if such Unrestricted Global Note is not a Regulation S Global
Note).
SECTION 2.04 RECORD OF TRANSFER OF THE CERTIFICATED DEPOSITARY INTERESTS.
The Issuer hereby appoints the Book-Entry Depositary as its agent
for the sole purpose of maintaining at its Corporate Trust Office records in
which it shall (i) record the Depositaries as the initial owners of the
Certificated Depositary Interests, (ii) record the transfer of any Certificated
Depositary Interests and (iii) record the increases and decreases in the
principal amount represented by Certificated Depositary Interests. The
Certificated Depositary Interests shall not be transferred (i) except as a whole
and only to a Depositary, (ii) unless such transfer is noted in the records of
the Book-Entry Depositary and (iii) unless such transfer is confirmed by the
applicable Depositary and ownership of the Certificated Depositary Interests are
transferred to and registered in the name of a Depositary, authorized by the
transferor Depositary and approved by the Issuer. The Book-Entry Depositary
shall not recognize any transfer or exchange of ownership of the Certificated
Depositary Interests that does not comply with the provisions of this Section
2.04. The Book-Entry Depositary shall treat the Person in whose name a
Certificated Depositary Interest is recorded in its records as the owner thereof
for all purposes whatsoever and shall not be bound or affected by any notice to
the contrary, other than an order of a court having jurisdiction over the
Book-Entry Depositary.
The foregoing paragraph shall not (i) impose an obligation on the
Book-Entry Depositary or the Note Custodian to record the interests in or
transfers of Book-Entry Interests held by Participants in a Depositary or
Persons that may hold Book-Entry Interests through
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Participants in a Depositary or (ii) restrict transfers of such Book-Entry
Interests held by Participants in a Depositary or such Persons.
In connection with the Book-Entry Depositary's appointment as the
Issuer's agent under this Section 2.04, the Issuer shall have such rights and
obligations as regards removal of the Book-Entry Depositary and appointment of a
successor as are specified in Section 3.06 hereof.
SECTION 2.05 TRANSFER OF THE GLOBAL NOTES.
The Note Custodian shall hold each Global Note in custody for and on
behalf of the Book-Entry Depositary. Neither the Note Custodian nor the
Book-Entry Depositary shall transfer or lend any Global Note or any interest
therein except (i) as provided by Section 2.7 of the Indenture or Section 2.03
of this Agreement, (ii) a Global Note may be exchanged or replaced pursuant to
Section 2.8 of the Indenture, (iii) any Global Note may be delivered to the
Trustee for cancellation pursuant to Section 2.12 of the Indenture and (iv) that
Global Notes may be transferred as a whole (A) by the Book-Entry Depositary to a
nominee or custodian of the Book-Entry Depositary or (B) by a nominee or
custodian of the Book-Entry Depositary to the Book-Entry Depositary or, in the
case of each (A) and (B), to another successor of the Book-Entry Depositary or a
nominee or custodian of such successor, located outside Ireland who becomes such
a successor in accordance with the provisions of Sections 3.06 and 3.07 hereof
(and, in the case of clause (iv), who is acceptable to the Issuer).
Notwithstanding the foregoing, the Note Custodian and the Book-Entry Depositary
shall not under any circumstances surrender or deliver any Global Notes to a
Depositary. If (i) a Depositary notifies the Issuer at any time that it is
unwilling or unable to continue as depositary for Certificated Depositary
Interests representing the Global Notes and a successor depositary is not
appointed within 90 days of such notification, (b) the Book-Entry Depositary
notifies the Issuer at any time that it is unwilling or unable to continue as
book-entry depositary and a successor book-entry depositary is not appointed by
issuer within 90 days, (c) a Depositary requests the issuance of Definitive
Notes following an Event of Default under the Indenture, (d) at any time if the
Issuer in its sole discretion determines and notifies the Trustee that it elects
to cause the issuance of Definitive Notes (in whole (but not in part)) or (e) an
Event of Default occurs and is continuing and the Issuer is required pursuant to
the terms of the Indenture to exchange all or part of a Global Note for one or
more Definitive Notes, then the Book-Entry Depositary shall promptly notify the
Note Custodian and the Trustee and request the Trustee to issue Definitive Notes
in such names and denominations as the Holder shall specify in accordance with
Article Two of the Indenture and the Book-Entry Depositary agrees that in such
event it will promptly surrender, or cause the Note Custodian to surrender, the
Global Notes held by it to the Trustee in connection with such exchange and that
such Global Notes will be cancelled upon issuance of such Definitive Notes. In
no event will Definitive Notes be issued in bearer form.
Delivery of Definitive Notes pursuant to this Section 2.05 shall be
made free of any fees of the Book-Entry Depositary to a Depositary or the
beneficial owner thereof.
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SECTION 2.06 CANCELLATION.
If any Global Note is surrendered for payment or for redemption or
purchase by the Issuer of Notes evidenced thereby or for exchange for Definitive
Notes to any Person other than the Trustee, then such Global Note shall, subject
to the provisions of this Article II, become void and be delivered to the
Trustee for cancellation in whole or in part.
SECTION 2.07 PAYMENTS IN RESPECT OF THE CERTIFICATED DEPOSITARY INTERESTS AND
GLOBAL NOTES.
(a) Whenever the Book-Entry Depositary shall receive from the
Trustee (or other paying agent appointed under the Indenture) any payment on any
Global Note, the amount so received shall be distributed promptly to the
Depositary entitled thereto on the corresponding payment date for such Global
Note. So long as Euro clear or Clearstream is the Depositary, such payments
shall be made in accordance with the Applicable Procedures.
(b) The Book-Entry Depositary shall forward to the Issuer or its
agents such information from its records as the Issuer may reasonably request to
enable the Issuer or its agents to file necessary reports with governmental
agencies and the Book-Entry Depositary, the Issuer may (but shall not be
required to) file any such reports necessary to obtain benefits under any
applicable tax treaties for the Depositaries or beneficial owners of Book-Entry
Interests.
(c) None of the Issuer, the Trustee, the Book-Entry Depositary,
the Note Custodian or any agent of the Issuer, the Trustee or the Book-Entry
Depositary shall have any responsibility or liability for any aspect of the
records relating to payments made by a Depositary (or its direct or indirect
Participants) on account of Book-Entry Interests or for maintaining, supervising
or reviewing any records relating to such Book-Entry Interests.
(d) Notwithstanding any other provision of this Agreement, the
Book-Entry Depositary shall be required to pay to any Depositary only amounts
(including Additional Amounts) received by the Book-Entry Depositary under a
Global Note in which such Depositary holds an interest.
SECTION 2.08 CHANGE IN PRINCIPAL AMOUNT OF GLOBAL NOTES.
(a) Upon transfer or exchange of a beneficial interest in one
Global Note for another Global Note as provided in Section 2.7 of the Indenture
or upon the issuance of Definitive Notes in accordance with Section 2.6 of the
Indenture, the Book-Entry Depositary shall adjust accordingly the principal
amounts of the Certificated Depositary Interests and shall confirm such
adjustments with the applicable Depositary. The Book-Entry Depositary shall
present the Global Notes to the Trustee or its agent to reduce or increase the
principal amount thereof in accordance with Section 2.7 of the Indenture.
(b) In the event that the Issuer exercises any right of
redemption in respect of any Notes constituting all or any part of a Global Note
or purchases any Notes constituting all or any part of a Global Note pursuant to
an offer to purchase Notes pursuant to the Indenture, the Book-Entry Depositary
shall promptly cause the Note Custodian to request the Trustee to adjust its
records and request the Trustee to endorse the applicable Schedule to such
Global Note, in each case to reflect the reduction in the principal amount of
such Global Note as a result of such
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redemption or purchase. The redemption price or purchase price payable in
connection with the redemption or purchase of a portion of such Global Note
shall be equal to the amount received by the Book-Entry Depositary in respect of
the aggregate principal amount of the Notes so redeemed or purchased. In
addition, the Book-Entry Depositary shall cause the Note Custodian to notify the
applicable Depositary of the principal amount redeemed and of a corresponding
reduction of the same principal amount of the applicable Certificated Depositary
Interest. The Book-Entry Depositary shall pay all such amounts received by it in
connection with such redemption to such Depositary.
(c) Whenever the principal amount at maturity of a Global Note
is changed by the Trustee, the Book-Entry Depositary shall cause the Note
Custodian to notify the applicable Depositary in each case of the corresponding
change in the principal amount of the related Certificated Depositary Interest.
SECTION 2.09 OFFER TO PURCHASE NOTES AND BOOK-ENTRY INTERESTS.
Upon receipt by the Book-Entry Depositary as Holder of the Global
Note of a notice of redemption of the Notes pursuant to the Indenture, the
Book-Entry Depositary will forward such notice of redemption to the applicable
Depositary with any additional instructions applicable to owners of Book-Entry
Interests. Upon notice by the applicable Depositary of the principal amount of
Book-Entry Interests tendered for purchase in response to such notice of
redemption, the Book-Entry Depositary will cause the Note Custodian to surrender
the applicable Global Note in accordance with the instructions set forth in the
notice of redemption, indicating the portion of the principal amount of the
Global Note that is being tendered for purchase pursuant to the notice of
redemption. Upon receipt of any payment resulting from the notice of redemption,
the Book-Entry Depositary shall pay any amounts received to the applicable
Depositary, indicate the principal amount of the Global Note reduced by the
Trustee in connection with the notice of redemption and notify such Depositary
of a corresponding reduction in the principal amount of the applicable
Certificated Depositary Interest.
SECTION 2.10 TRANSFERS AND TRANSFER RESTRICTIONS.
Transfers and exchanges of Book-Entry Interests of the kinds
specified in Section 2.7 of the Indenture shall be made only in accordance with
said Section 2.7 and the Applicable Procedures.
The parties hereto acknowledge that pursuant to arrangements with
the Depositaries, during the Restricted Period, any trades in Book-Entry
Interests in a Regulation S Global Note shall only occur in or through accounts
maintained at Euro clear and Clearstream.
Each owner of Book-Entry Interests in the Rule 144A Global Note
understands that such Book-Entry Interests have not been registered under the
Securities Act and may not be offered, resold, pledged or otherwise transferred
by such owner except (a)(i) to a person who such owner reasonably believes is a
qualified institutional buyer acquiring for its own account or the account of a
qualified institutional buyer in a transaction meeting the requirements of Rule
144A, (ii) in an offshore transaction meeting the requirements of Rule 903 or
Rule 904 of Regulation S, (iii) pursuant to an exemption from registration under
the Securities Act provided
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by Rule 144 thereunder (if available) or (iv) pursuant to an effective
registration statement under the Securities Act and (b) in accordance with all
applicable securities laws of the states of the United States and other
jurisdictions.
SECTION 2.11 RECORD DATE.
Whenever any payment is to be made in respect of the Global Notes,
the Book-Entry Depositary or the Note Custodian shall receive notice of any
action to be taken by the Depositaries or holders of Book-Entry Interests (such
notice to be given only through the Depositaries), or whenever the Issuer
otherwise deems it appropriate in respect of any other matter, the Issuer shall
fix a record date for the determination of the aggregate principal amount of
Global Notes represented by Certificated Depositary Interests or the holder who
shall be entitled to receive payment in respect of Certificated Depositary
Interests or to take any such action or to act in respect of any such matter,
which record date shall at all times be the record date for the Global Notes.
Subject to the provisions of this Agreement, only the Depositaries in whose
names the Certificated Depositary Interests are recorded on the records of the
Book-Entry Depositary at the close of business on such record date shall be
entitled to receive any such payment, to give instructions as to such action or
to act in respect of any such matter.
SECTION 2.12 ACTION IN RESPECT OF THE CERTIFICATED DEPOSITARY INTERESTS OR THE
GLOBAL NOTES.
As soon as practicable, but not later than 10 days after receipt by
the Book-Entry Depositary or the Note Custodian of notice of any solicitation of
consents or request for a waiver or other action by the Depositaries or owners
of Book-Entry Interests or by the Book-Entry Depositary under this Agreement,
the Book-Entry Depositary shall mail to the Depositaries a notice containing (a)
such information as is contained in the notice received, (b) a statement that
the Depositary at the close of business on a specified record date (established
in accordance with Section 2.11 hereof) will be entitled, subject to the
provisions of or governing the Certificated Depositary Interests or Global
Notes, as the case may be, to instruct the Book-Entry Depositary as to the
consent, waiver or other action, if any, pertaining to the Certificated
Depositary Interests or Global Notes, as the case may be, and (c) a statement as
to the manner in which such instructions may be given. Upon the written request
of the Depositaries received on or before the date established by the Issuer for
such purpose, the Book-Entry Depositary shall, or if applicable, shall cause the
Note Custodian to, endeavor insofar as practicable and permitted under the
provisions governing the Certificated Depositary Interests or Global Notes, as
the case may be, to take such action regarding the requested consent, waiver or
other action in respect of such Certificated Depositary Interest or Global Note,
as the case may be, in accordance with any instructions set forth in such
request. The Book-Entry Depositary and the Note Custodian shall not themselves
exercise any discretion in the granting of consents or waivers or the taking of
any other action in respect of the Certificated Depositary Interests, the
Book-Entry Interests or Global Notes.
SECTION 2.13 CHANGES AFFECTING THE GLOBAL NOTES.
Upon any reclassification of the Global Notes or upon any merger or
consolidation or sale of substantially all the assets affecting the Issuer or to
which the Issuer is a party, any securities that shall be received by the
Book-Entry Depositary or the Note Custodian
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in exchange for or in respect of a Global Note shall be treated as a new Global
Note or as part of the Global Note under this Agreement and any corresponding
Certificated Depositary Interest shall thenceforth represent such Global Note,
including such new securities so received.
SECTION 2.14 REPORTS.
The Book-Entry Depositary and the Note Custodian will as soon as
practicable (and in no event later than 10 days from receipt) send to the
Depositaries a copy of any notices, reports and other communications received
relating to the Issuer, the Global Notes or the Book-Entry Interests.
SECTION 2.15 ADDITIONAL AMOUNTS.
At least 10 days prior to the first date on which payment of
principal, premium, if any, or interest on the Notes is to be made, and at least
10 days prior to any subsequent such date if there has been any change with
respect to the matters set forth in the Officers' Certificate described in
Section 4.20 of the Indenture, the Issuer will furnish the Book-Entry Depositary
with an Officers' Certificate specifying whether such payment of principal,
premium, if any, or interest on the Notes shall be made without withholding or
deduction for, or on account of, any Taxes and the amount, if any, required to
be withheld on such payments and the amount, if any, of additional amounts
payable, net of amounts to which the Depositaries or owner of Book-Entry
Interests is not entitled. The Book-Entry Depositary shall have no
responsibility for determining whether a Depositary or any owner of a Book-Entry
Interest is entitled to the payment of Additional Amounts, but shall be entitled
to rely conclusively for this purpose on the Officers' Certificate or on
certifications from any Depositary. The Issuer shall, prior to the date on which
the Book-Entry Depositary is required to make such payment, pay to the
Book-Entry Depositary amounts equal to any Additional Amounts payable on such
date by the Book-Entry Depositary under this Agreement. The Issuer shall
indemnify the Book-Entry Depositary for, and hold it harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by it
in reliance on any Officers' Certificate furnished to them pursuant to this
Section 2.15 or failure to furnish any such Officers' Certificate.
Notwithstanding anything to the contrary provided above, the Book-Entry
Depositary shall pay or cause to be paid Additional Amounts only out of funds
that shall be received by it from the Issuer for that purpose.
ARTICLE THREE
THE BOOK-ENTRY DEPOSITARY AND THE NOTE CUSTODIAN
SECTION 3.01 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Book-Entry Depositary and the Note Custodian undertake
to perform such duties and only such duties as are specifically set forth in
this Agreement. The Book-Entry Depositary may perform or execute any of its
duties or powers hereunder either directly or through its agents.
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The Book-Entry Depositary and the Note Custodian shall not incur any
liability to any Depositary with respect to any Certificated Depositary
Interest, any owner of Book-Entry Interests or any other Person hereunder or in
connection herewith if, by reason of any provision of any present or future law
or regulation of any governmental or regulatory authority or securities
exchange, or by reason of any act of God or war or other circumstance beyond the
control of the Book-Entry Depositary and the Note Custodian, the Book-Entry
Depositary and the Note Custodian shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Agreement provide shall be
done or performed.
The Book-Entry Depositary and the Note Custodian shall not be liable
under this Agreement other than by reason of their own bad faith, willful
misconduct or negligence in the performance of such duties as are specifically
set forth in this Agreement. The Book-Entry Depositary and the Note Custodian
shall not be liable for any damages resulting from the transfer or delivery of
the Book-Entry Interests in accordance with the terms of this Agreement. The
Book-Entry Depositary and the Note Custodian shall not be liable for any action
or inaction by them done in good faith reliance upon the written advice of legal
counsel. The Book-Entry Depositary and the Note Custodian may rely upon any
written notice, request, direction or other document believed by them in good
faith to be genuine and to have been signed or presented by the proper party or
parties.
The Book-Entry Depositary and the Note Custodian assume no
obligation nor shall they be subject to any liability under this Agreement to
any Depositary or any owner of Book-Entry Interests or any other Person
(including, without limitation, liability with respect to the validity or worth
of the Notes), other than that they agree to use their good faith and reasonable
care in the performance of such duties as are specifically set forth in this
Agreement.
The Book-Entry Depositary and the Note Custodian make no
representation or warranty and shall at no time have any responsibility for, or
liability or obligation in respect of, the legality, validity, binding effect,
adequacy or enforceability of the Notes, the performance and observance by the
Issuer of its obligations under the Notes or the recoverability of any sum of
interest and principal due or to become due from the Issuer in respect of the
Notes.
The Book-Entry Depositary and the Note Custodian shall at no time
have any responsibility for, or obligation or liability in respect of, the
financial condition, creditworthiness, affairs, status or nature of the Issuer.
The Book-Entry Depositary and the Note Custodian shall not be under
any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Note or in respect of the Book-Entry Interests, or
take any other action or omit to take any action under this Agreement, which in
their opinion may involve them in expense or liability, unless reasonable
security or indemnity against the cost, expenses and liabilities which may be
incurred by them in connection therewith is furnished.
The Book-Entry Depositary and the Note Custodian shall not be liable
for any acts or omissions made by a successor depositary or successor note
custodian whether in connection with a previous act or omission of the
Book-Entry Depositary or Note Custodian or in connection with a matter arising
wholly after the removal or resignation of the Book-Entry
11
Depositary or Note Custodian, provided that the Book-Entry Depositary or Note
Custodian, exercised its good faith and reasonable care while it acted as
Book-Entry Depositary or Note Custodian, as the case may be.
The Book-Entry Depositary and the Note Custodian may own and deal in
any class of securities of the Issuer and its affiliates and in interests in the
Book-Entry Interests. The Book-Entry Depositary and the Note Custodian may enter
into other dealings with the Issuer or any of its Affiliates of any nature
whatsoever.
SECTION 3.02 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained in the Indenture and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer and the Book-Entry Depositary and the Note Custodian do not assume
responsibility for their correctness. The Book-Entry Depositary and the Note
Custodian do not make representations as to the validity or sufficiency of this
Agreement or of the Notes or of any offering materials. The Book-Entry
Depositary and the Note Custodian shall not be accountable for the use or
application by the Issuer of the proceeds with respect to the Notes.
SECTION 3.03 MONEY HELD IN TRUST.
Money held by the Book-Entry Depositary or the Note Custodian in
trust hereunder need not be segregated from other funds held by the Book-Entry
Depositary or the Note Custodian, except to the extent required by law. The
Book-Entry Depositary and the Note Custodian shall not be under any obligation
to invest or pay interest on any money received by it hereunder, except as
otherwise agreed with the applicable Depositary (or in the absence of such an
agreement, with the Issuer).
SECTION 3.04 COMPENSATION AND REIMBURSEMENT.
The Issuer agrees:
(a) to pay to the Book-Entry Depositary and the Note Custodian
from time to time such compensation as agreed between the Issuer and them
in writing for all services tendered by the Book-Entry Depositary or the
Note Custodian, as the case may be, hereunder (which compensation shall not
be limited by any provision of law with regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Book-Entry Depositary and the Note
Custodian and any predecessor Book-Entry Depositary or predecessor Note
Custodian upon their request for all reasonable expenses, disbursements and
advances incurred or made by the Book-Entry Depositary or by the Note
Custodian in accordance with any provision of this Agreement (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its gross negligence or bad faith; and
(c) to indemnify the Book-Entry Depositary and its agents and
the Note Custodian and any predecessor Book-Entry Depositary or predecessor
Note Custodian
12
for, and to hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on their part, arising out of or
in connection with the acceptance or administration of this Agreement and
its duties hereunder, including the costs and expenses of defending
themselves against or investigating any claim of liability in connection
with the exercise or performance of any of their powers or duties
hereunder.
The obligations of the Issuer under this Section 3.04 to compensate
and indemnify the Book-Entry Depositary and the Note Custodian and any
predecessor Book-Entry Depositary or predecessor Note Custodian and to pay or
reimburse the Book-Entry Depositary and the Note Custodian and any predecessor
Book-Entry Depositary or predecessor Note Custodian for expenses, disbursements
and advances shall survive the payment of the Global Notes, resignation or
removal of the Book-Entry Depositary or the Note Custodian and satisfaction,
discharge or other termination of this Agreement.
The Book-Entry Depositary and the Note Custodian shall not be
responsible for (1) taxes and other governmental charges or (2) such
registration fees as may from time to time be in effect for the registration of
transfers of interests in the certificated depositary interests.
SECTION 3.05 GLOBAL DEPOSITARIES REQUIRED; ELIGIBILITY.
At all times when there is a Book-Entry Depositary and a Note
Custodian hereunder, each of them shall be a corporation organized and doing
business under the laws of a jurisdiction other than Ireland having, together
with its parent, a combined capital and surplus of at least EURO 250,000,000,
subject to supervision or examination by the relevant governmental or regulatory
authority, and willing to act on reasonable terms. Such corporation will have
its principal place of business in London, England if there be such a
corporation in such location willing to act upon reasonable and customary terms
and conditions. If such corporation, or its parent, publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 3.05, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Book-Entry Depositary or
the Note Custodian shall cease to be eligible in accordance with the provisions
of this Section 3.05, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 3.06 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Book-Entry Depositary or
the Note Custodian and no appointment of a successor Book-Entry Depositary or a
successor Note Custodian pursuant to this Article Three shall become effective
until (i) the acceptance of appointment by the successor Book-Entry Depositary
or the successor Note Custodian, as the case may be, in accordance with the
applicable requirements of Section 3.07 hereof or (ii) the issuance of
Definitive Notes in accordance with Sections 2.05 and 2.08 hereof.
(b) The Book-Entry Depositary or the Note Custodian may resign
with respect to the Global Notes by giving written notice thereof to the Issuer
and the Depositaries and the Trustee, in accordance with Section 4.01 and
Section 4.02 hereof, 60 days prior to the effective
13
date of such resignation. The Book-Entry Depositary or the Note Custodian may be
removed at any time upon 90 days' notice by the filing with it and the Trustee
of an instrument in writing signed on behalf of the Issuer and specifying such
removal and the date when it is intended to become effective. If the instrument
of acceptance by a successor Book-Entry Depositary required by Section 3.08
hereof shall not have been delivered to the Book-Entry Depositary within 30 days
after the giving of such notice of resignation, the resigning Book-Entry
Depositary or the resigning Note Custodian may petition any court of competent
jurisdiction for the appointment of a successor Book-Entry Depositary or a
successor Note Custodian, as applicable. If, at the end of 90 days after the
delivery of such notice, no successor depositary has been appointed and has
accepted such appointment, the Book-Entry Depositary may terminate this
Agreement.
(c) If at any time:
(1) the Book-Entry Depositary or the Note Custodian shall cease
to be eligible under Section 3.05 hereof, and shall fail to resign after
written request therefor by the Issuer or by any Depositary; or
(2) the Book-Entry Depositary or the Note Custodian shall become
incapable of acting with respect to the Certificated Depositary Interests
or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator
of the Book-Entry Depositary or the Note Custodian or of their respective
property shall be appointed or any public officer shall take charge or
control of the Book-Entry Depositary or the Note Custodian or of their
respective property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Issuer, by Board Resolution, may immediately
remove the Book-Entry Depositary or the Note Custodian and appoint a successor
Book-Entry Depositary or a successor Note Custodian or (ii) any Depositary, the
Book-Entry Depositary or the Note Custodian may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Book-Entry Depositary or the Note Custodian and the appointment
of a successor Book-Entry Depositary or a successor Note Custodian unless the
Definitive Notes have been issued in accordance with the Indenture. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Book-Entry Depositary or the Note Custodian and appoint a successor
Book-Entry Depositary or a successor Note Custodian.
(d) If the Book-Entry Depositary or the Note Custodian shall
resign, be removed or become incapable of acting, or if a vacancy shall occur in
the office of the Book-Entry Depositary or the Note Custodian for any cause, the
Issuer, by Board Resolution, shall promptly appoint a successor Book-Entry
Depositary or a successor Note Custodian (other than the Issuer) for the
Book-Entry Depositary or the Note Custodian and shall comply with the applicable
requirements of Section 3.07 hereof. If no successor Book-Entry Depositary or
successor Note Custodian with respect to the Global Notes shall have been so
appointed by the Issuer and accepted appointment in the manner required by
Section 3.07, any Holder may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for
14
the appointment of a successor Book-Entry Depositary or a successor Note
Custodian unless Definitive Notes have been issued in accordance with the
Indenture.
(e) The Issuer shall give, or shall cause such successor
Book-Entry Depositary or successor Note Custodian to give, notice of each
resignation and each removal of a Book-Entry Depositary or a Note Custodian and
each appointment of a successor Book-Entry Depositary or a successor Note
Custodian to the applicable Holder in accordance with Section 4.02 hereof. Each
notice shall include the name of the successor Book-Entry Depositary or the
successor Note Custodian, as the case may be, and the address of its corporate
trust office.
SECTION 3.07 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Book-Entry Depositary or a successor Note Custodian, every such successor
Book-Entry Depositary or successor Note Custodian so appointed shall execute,
acknowledge and deliver to the Issuer and to the retiring Book-Entry Depositary
or the retiring Note Custodian an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Book-Entry Depositary or
the retiring Note Custodian shall become effective and such successor Book-Entry
Depositary or such successor Note Custodian, without any further act, deed or
conveyance, shall become vested with all the rights, powers, agencies and duties
of the retiring Book-Entry Depositary or the retiring Note Custodian, with like
effect as if originally named as the Book-Entry Depositary hereunder or the Note
Custodian hereunder but, on the request of the Issuer or a successor Book-Entry
Depositary or a successor Note Custodian, the retiring Book-Entry Depositary or
the retiring Note Custodian shall, upon payment of all amounts due and payable
to it pursuant to Section 3.04 hereof, execute and deliver an instrument
transferring to the successor Book-Entry Depositary or the successor Note
Custodian, as the case may be, all the rights and powers of the retiring
Book-Entry Depositary or the Note Custodian and shall duly assign, transfer and
deliver to the successor Book-Entry Depositary or the successor Note Custodian
all property and money held by the retiring Book-Entry Depositary hereunder or
the retiring Note Custodian hereunder and shall deliver the Global Notes to the
successor.
(b) Upon request of any such successor Book-entry Depositary or
the successor Note Custodian, the Issuer shall execute any and all instruments
for more fully and certainly vesting in and confirming to the successor
Book-Entry Depositary or the successor Note Custodian, as the case may be, all
such rights, powers and agencies referred to in paragraph (a) of this Section
3.07.
(c) No successor Book-Entry Depositary or successor Note
Custodian shall accept its appointment unless at the time of such acceptance
such successor Book-Entry Depositary or successor Note Custodian shall be
eligible under this Article Three.
(d) Upon acceptance of appointment by any successor Book-Entry
Depositary or successor Note Custodian as provided in this Section 3.07, the
Issuer shall give notice thereof to the Depositaries in accordance with Section
4.02 hereof. If the acceptance of appointment is substantially contemporaneous
with the resignation of the Book-Entry Depositary or the Note Custodian, then
the notice called for by the preceding sentence may be combined with the notice
called for the Section 3.06 hereof. If the Issuer fails to give such notice
within 15 days after
15
acceptance of appointment by a successor Book-Entry Depositary or a successor
Note Custodian, the successor Book-Entry Depositary or the successor Note
Custodian shall promptly cause such notice to be given at the expense of the
Issuer.
SECTION 3.08 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Book-Entry Depositary or the Note
Custodian may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Book-Entry Depositary or the Note Custodian shall be a party, or any
corporation succeeding to all or substantially all the agency business of the
Book-Entry Depositary or the Note Custodian, shall be the successor of the
Book-Entry Depositary hereunder or the Custodian hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation shall be otherwise eligible under
this Article Three.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 NOTICES TO BOOK-ENTRY DEPOSITARY, NOTE CUSTODIAN OR ISSUER.
Any request, demand, authorization, direction, notice, consent,
waiver or other document provided or permitted by this Agreement to be made
upon, given or furnished to, or filed with,
(a) the Book-Entry Depositary by any Depositary, the Trustee or
the Issuer shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or filed in writing and
delivered (which may be by facsimile), couriered or mailed and received,
first-class postage prepaid, to the Book-Entry Depositary at its Corporate Trust
Office, Attention: Corporate Trust and Agency Services, Xxxxxxxxxx Xxxxx, 0
Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, England, Attention: Corporate Trust
and Agency Services (facsimile: x00 000 000 0000) or at any other address
previously furnished in writing by the Book-Entry Depositary to any Depositary,
the Trustee and the Issuer,
(b) the Issuer by the Book-Entry Depositary shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and delivered (which may be by
facsimile), couriered or mailed and received, first-class postage prepaid to MDP
Acquisitions plc, Xxxxxx Xxx Xxxxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxx 0, Xxxxxxx,
Attention: Secretary (facsimile x000-0-000-0000) (with a copy (such copy not
constituting notice) to Xxxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx, 00000, Attention: Xxxxxx Xxxxx (facsimile: x0-000-000-0000)) or at any
other address previously furnished in writing to such Book-Entry Depositary by
the Issuer or
(c) the Note Custodian by the Book-Entry Depositary at its
corporate trust office, Attention: Corporate Trust and Agency Services,
Xxxxxxxxxx Xxxxx, 0 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX.
16
SECTION 4.02 NOTICE TO DEPOSITARY AND OWNERS; WAIVER.
Where this Agreement provides for notice to a Depositary or owners
of Book-Entry Interests of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided), if in writing and sent by
facsimile transmission or personally delivered, couriered or mailed, first-class
postage prepaid, to the Depositary at the address notified to the Book-Entry
Depositary, in each case not later than the latest date, and not earlier that
the earliest date, prescribed for the giving of such notice. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by the Depositary shall be filed with the Book-Entry Depositary, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. So long as the Notes are listed on the Luxembourg
Stock Exchange and the rules of that stock exchange so require, notices shall be
also published in a leading newspaper having general circulation in Luxembourg
(which is expected to be the LUXEMBURGER WORT) and such notice shall be deemed
to have been given on the date of such publication or, if published more than
once on different dates, on the first date on which publication is made.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Book-Entry
Depositary shall constitute a sufficient notification for every purpose
hereunder.
SECTION 4.03 EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 4.04 SUCCESSORS AND ASSIGNS.
All covenants and agreements of the Issuer in this Agreement and the
Notes shall bind the Issuer's successors and assigns, whether so expressed or
not.
SECTION 4.05 SEPARABILITY CLAUSE.
In case any provision in this Agreement or in the Notes shall be
deemed invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in any
way be affected or impaired thereby.
SECTION 4.06 BENEFITS OF AGREEMENT.
Nothing in this Agreement, the Notes or the Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any benefits or any legal or equitable right, remedy or
claim under this Agreement. The owners from time to time of the Book-Entry
Interests shall be parties to this Agreement and, by their acceptance of
delivery of the Book-Entry Interests, shall be deemed to be bound by all of the
terms and conditions hereof and of the Indenture and the Notes.
17
SECTION 4.07 GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
SECTION 4.08 JURISDICTION.
By the execution and delivery of this Agreement, the Issuer (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed National Registered Agents, Inc. as its authorized agent upon
which process may be serviced in any suit or proceeding by either Book-Entry
Depositary or the Note Custodian arising out of this Agreement that may be
instituted in any federal or state court in the Borough of Manhattan, the City
of New York, and acknowledges that National Registered Agents, Inc. has accepted
such designation, (ii) submits to the jurisdiction of any such court in any such
suit or proceeding, and waives any objection which it may now or hereafter have
to the laying of venue of any such proceeding or any claim of inconvenient forum
and (iii) agrees that service of process upon National Registered Agents, Inc.
and written notice of said service to it (couriered, mailed or delivered to its
Secretary at its principal office) shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. The Issuer further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
appointment of National Registered Agents, Inc. in full force and effect so long
as this Agreement shall be in full force and effect and so long as any Global
Note shall be outstanding.
To the extent that the Issuer has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution or otherwise) with respect to itself or its property, hereby
irrevocably waives such immunity in respect of its respective obligations under
this Agreement to the fullest extent permitted by law.
SECTION 4.09 COUNTERPARTS.
This Agreement may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
SECTION 4.10 INSPECTION OF AGREEMENT.
A copy of this Agreement shall be available at all reasonable times
during normal business hours at the Corporate Trust Office of the Book-Entry
Depositary for inspection upon reasonable prior written notice by any owner of
Book-Entry Interests.
SECTION 4.11 SATISFACTION AND DISCHARGE.
This Agreement upon a Company Order shall cease to be of further
effect, and the Book-Entry Depositary and the Note Custodian, at the expense of
the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Agreement, when (i) the Indenture has been satisfied and
discharged pursuant to the provisions thereof or Definitive Notes have
18
been issued and the Global Notes have been cancelled in accordance with the
provisions of Sections 2.05 or 2.06 hereof and the Indenture, (ii) the Issuer
has paid or caused to be paid all sums payable hereunder by the Issuer and (iii)
the Issuer has delivered to the Book-Entry Depositary an Officers' Certificate
and an Opinion of Counsel, stating that all conditions precedent herein provided
relating to the satisfaction and discharge of this Agreement have been complied
with.
SECTION 4.12 AMENDMENTS
The Issuer, the Book-Entry Depositary and the Note Custodian may
amend this Agreement without the consent of any Depositary or the owners of
Book-Entry Interests:
(a) to cure any ambiguity, omissions, defect or inconsistency;
(b) to add to the covenants and agreements of the Book-Entry
Depositary or the Note Custodian or the Issuer;
(c) to effectuate the assignment of the rights and duties of the
Book-Entry Depositary or the Note Custodian to a qualified successor, as
provided herein;
(d) to comply with any requirements of the Securities and
Exchange Commission and the TIA; or
(e) to modify, alter, amend or supplement this Agreement in any
other manner that is not adverse to any Depositary or the owners of Book-Entry
Interests.
Except as set forth in this Section 4.12, no amendment that
adversely affects any Depositary or the owners of Book-Entry Interests may be
made to this Agreement or the Book-Entry Interests without the consent of the
applicable Depositary or the owners of Book-Entry Interests.
SECTION 4.13 BOOK-ENTRY DEPOSITARY AND THE NOTE CUSTODIAN TO SIGN AMENDMENTS.
The Book-Entry Depositary and the Note Custodian shall sign any
amendment authorized pursuant to Section 4.12 hereof if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Book-Entry
Depositary and the Note Custodian. If it does, the Book-Entry Depositary and the
Note Custodian may, but need not, sign it. In signing such amendment, the
Book-Entry Depositary and the Note Custodian shall be entitled to receive
indemnity reasonably satisfactory to it and to receive, and shall be fully
protected in reasonably relying upon, an Officers' Certificate (which need only
cover the matters set forth in clause (a) below) and an Opinion of Counsel
stating that:
(a) such amendment is authorized or permitted by this Agreement;
(b) the Issuer has all necessary corporate power and authority
to execute and deliver the amendment and that the execution, delivery and
performance of such amendment has been duly authorized by all necessary
corporate action; and
19
(c) such amendment has been duly and validly executed and
delivered by the Issuer, and this Agreement together with such amendment
constitutes a legal, valid and binding obligation of the Issuer enforceable
against the Issuer in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and general equitable principles.
20
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the date first written above.
MDP ACQUISITIONS PLC
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Director
By: /s/ XXXXXX X. XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title: Director
21
DEUTSCHE BANK AG LONDON
as Book-Entry Depositary
By: /s/ C.A. XXXXXX /s/ XXXXX XXXXX
Name: C.A. Xxxxxx Xxxxx Xxxxx
Title: Vice President Vice President
DEUTSCHE BANK AG LONDON
as Note Custodian
By: /s/ C.A. XXXXXX /s/ XXXXX XXXXX
Name: C.A. Xxxxxx Xxxxx Xxxxx
Title: Vice President Vice President
22
ANNEX A - Form of Certificated
Depositary Interest
CERTIFICATED DEPOSITARY INTEREST
[(REGULATION S)] [(RULE 144A)]
15.5% Subordinated Notes due 2013
THIS CERTIFICATED DEPOSITARY INTEREST HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, OR DELIVERED OTHER THAN IN COMPLIANCE WITH THE NOTES DEPOSIT AND
CUSTODY AGREEMENT REFERRED TO BELOW.
Unless presented to Deutsche Bank AG London, as Book-Entry Depositary, or its
custodian, for registration of transfer, exchange or payment, and any security
is issued as authorized by the holder, any transfer, exchange, pledge or payment
under this Certificated Depositary Interest will be wrongful.
The holder of this Certificated Depositary Interest is subject to, and entitled
to the benefit of, (A) the Euro Indenture dated as of October 2, 2002, among MDP
Acquisitions plc, a public limited company incorporated under the laws of
Ireland and having its registered office at Xxxxxx Xxx Building, Earlsfort
Center, Xxxxxxxxx Xxxxxxx, Xxxxxx 0, Xxxxxxx (the "Issuer"), Deutsche Bank Trust
Company Americas, as Trustee, Registrar and Paying Agent, Deutsche Bank
Luxembourg S.A. as Paying Agent and transfer agent, and Deutsche Bank AG London
as Principal Paying Agent and transfer agent, and (B) the Deposit and Custody
Agreement (the "Deposit and Custody Agreement") dated as of October 2, 2002,
among the Issuer, the Book-Entry Depositary, the Note Custodian (as defined
therein) and owners from time to time of Book-Entry interests (as defined
therein).
The Book-Entry Depositary hereby certifies that Deutsche Bank AG London, as
Common Depositary for Euroclear and Clearstream is recorded in the records of
the Book-Entry Depositary as the owner of a certificated depositary interest
representing initially EURO ___________ in aggregate principal amount of 15.5%
Subordinated Notes due 2013 of the Issuer, or such greater or lesser amount as
shall be shown by the most recent entry in the schedule hereto.
This Certificated Depositary Interest shall be transferable only in accordance
with the Deposit and Custody Agreement.
UNLESS PRESENTED BY A DEPOSITARY TO THE BOOK-ENTRY DEPOSITARY FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATED DEPOSITARY INTEREST
ISSUED IS REGISTERED TO THE DEPOSITARY (OR AS OTHERWISE AUTHORIZED BY THE
DEPOSITARY), ANY TRANSFER, EXCHANGE, PLEDGE OR PAYMENT OF THIS CERTIFICATED
DEPOSITARY INTEREST SHALL BE WRONGFUL. THE BOOK-ENTRY DEPOSITARY SHALL NOT
RECOGNIZE ANY TRANSFER, EXCHANGE, PLEDGE OR PAYMENT OF THIS CERTIFICATED
DEPOSITARY INTEREST THAT DOES NOT COMPLY WITH THESE REQUIREMENTS.
A-1
IN WITNESS whereof the Book-Entry Depositary has caused this Certificated
Depositary Interest to be duly executed.
Dated:_________________________, 2002
DEUTSCHE BANK AG LONDON
By:
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Duly Authorized Signatory
Title:
A-2
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Certificated Depositary
Interest shall be EURO ______. The following decreases/increases in the
principal amount of this Certificated Depositary Interest have been made.
TOTAL PRINCIPAL NOTATION MADE BY
AMOUNT FOLLOWING OR ON BEHALF OF
DATE OF DECREASE IN INCREASE IN SUCH BOOK-ENTRY
DECREASE/INCREASE PRINCIPAL AMOUNT PRINCIPAL AMOUNT DECREASE/INCREASE DEPOSITARY
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