ANNEX A
GENERAL CONFIRMATIONS, WARRANTIES AND UNDERTAKINGS
1. The Existing Notes Scheme Creditor confirms to NN2 and Trafigura and its Affiliates that:
(a) it has complied with all laws and regulations applicable to it in any jurisdiction with respect to the Scheme and this Account Holder Letter;
(b) no Nominated Recipient is a Disqualified Person;
(c) it will retain no beneficial interest in any Scheme Creditor Entitlements nominated to be held by any Nominated Recipient(s) if it is itself a Disqualified Person;
(d) it has received and reviewed the Scheme Document and Explanatory Statement;
(e) it acknowledges that all authority conferred or agreed to be conferred pursuant to this Account Holder Letter and each obligation and the authorisations, instructions and agreements given by it shall be binding upon its successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives and shall not be affected by, and shall survive, its death or incapacity and that all of the information in this Account Holder Letter is true, complete and accurate as at the date of this Account Holder Letter;
(f) it acknowledges and agrees that NN2 may, between the date on which the Explanatory Statement is issued and the Scheme Effective Date, make any modifications of, or additions to, the Scheme and/or the Restructuring Documents which would not have or reasonably be expected, directly or indirectly, to have a material or disproportionate adverse effect on the interests of one or more of the Scheme Creditors (taking into account for this purpose only its interests as a Scheme Creditor) and provided that NN2 draws all such modifications or additions to the attention of the Court at the Scheme Sanction Hearing;
(g) it authorises the execution and the taking of all steps as are required to give effect to: the (i) Existing Notes Transfer; and (ii) the release of NN2 as co-obligor under the Existing Notes;
(h) with effect on and from the Restructuring Effective Date and in accordance with the Restructuring Implementation Deed, each Scheme Creditor (in its capacity as such and on behalf of its Nominated Recipient(s) and Affiliates), irrevocably and unconditionally, fully and finally waives and releases and forever discharges to the fullest extent permitted by applicable law any and all actions, Proceedings, claims, damages, counterclaims, complaints, liabilities, liens, rights, demands and set-offs, whether present or future, prospective or contingent, whether in this jurisdiction or any other or under any law, of whatsoever nature and howsoever arising, whether in law or in equity, in contract (including but not limited to breaches or non-performances of contract), statute or in tort (including but not limited to negligence and misrepresentation) or any other manner whatsoever, breaches of statutory duty, for contribution, or for interest and/or costs and/or disbursements, whether or not for a fixed or unliquidated amount, whether filed or unfiled, whether asserted or unasserted, whether or not presently known to the parties or to the law, in each case that it ever had, may have or hereafter can, shall or may have, against each of the following (in each case, in its or their capacity as such): (i) NN2; (ii) the Original Existing Notes Issuer; (iii) the Original Existing Convertible Bonds Issuer; (iv) the Guarantors; (v) the Advisers; (vi) the Information Agent; (vii) the Existing Convertible Bonds Trustee; (viii) the 2019 Notes Trustee; (ix) the 2024 Notes Trustee; (x) Trafigura and its Affiliates; (xi) Trafigura Group Pte. Ltd.; (xii) the Directors and Former Directors; and (xiii) any other Scheme Creditor (or Nominated Recipient(s)), and (in each case) their Affiliates, investment managers or investment advisers and all of their respective present or past officers, directors, employees, agents, representatives and advisers (in each case excluding, for the avoidance of doubt, any past or present auditors of the Group and any liability of any Adviser arising under or relating to a duty of care to such Adviser’s client or arising under a duty of care to another person which has been specifically accepted or acknowledged in writing by the relevant Adviser), (each person referred to above in this confirmation a “Restructuring Released Party”, and together the “Restructuring Released Parties”), whatsoever and howsoever arising, in connection with or by reason of or resulting directly or indirectly from a Restructuring Released Party’s: (i) participation in the Restructuring prior to the Restructuring Effective Date; and/or (ii) actions or omissions prior to the Restructuring Effective Date in relation to any member of the Group or the management or conduct of its business. This release shall not have the effect of waiving, releasing or discharging any rights of any Scheme Creditor arising under: (i) this Scheme or any Scheme Restructuring Documents; (ii) any report or advice provided by any Adviser, on which report or advice such Scheme Creditor is entitled to rely; (iii) any claims arising as a result of any breach of any Scheme Restructuring Document that remains in effect following the Restructuring Effective Date, (iv) or any remedy in respect of any such rights arising under the documents described at (i) to (iv) hereof; or (v) apply to any claim or Liability in respect of fraud, wilful misconduct, gross negligence, or dishonesty by any Restructuring Released Party;
(i) it (and, as applicable, each of its Nominated Recipient(s)) forthwith upon the Scheme Effective Date irrevocably authorises NN2 to enter into, execute and deliver as a deed (or otherwise) on behalf of each Existing Notes Scheme Creditor (and, as applicable, each of its Nominated Recipient(s)) the Restructuring Documents (in accordance with the terms of the Scheme);
(j) in respect of Existing Notes Scheme Creditors, it shall take whatever action is necessary to ensure that the books and records of the Clearing Systems are updated to reflect the terms of this Scheme, in accordance with the terms of the Scheme:
(i) instruct the Information Agent and the Clearing Systems to debit the Book Entry Interests relating to the Existing Notes from the custody account of each Existing Notes Scheme Creditor (or its Account Holder, as applicable), and credit the Book Entry Interests relating to the Existing Notes to the custody account of NN2; and
(ii) take or carry out any other step or procedure reasonably required to effect the settlement of this Scheme;
(k) it accepts and acknowledges the statement made in the “Important Notice” and “Important Securities Law Notice” contained in the Explanatory Statement;
(l) it declares and acknowledges that none of the 2019 Notes Trustee, the 2024 Notes Trustee, the Holding Trustee, the Directors or the Advisers will be held responsible for any liabilities or consequences arising as a result of acts taken by it or pursuant to the terms of the Scheme or the Existing Notes Transfer and it further declares that the 2019 Notes Trustee, the 2024 Notes Trustee, the Holding Trustee, the Directors and the Advisers do not have any responsibility for the terms of the Scheme or the Existing Notes Transfer;
(m) it acknowledges that neither of the Scheme or the Existing Notes Transfer and the transactions contemplated by the Explanatory Statement shall be deemed to be investment advice or a recommendation as to a course of conduct by any of the 2019 Notes Trustee, the 2024 Notes Trustee, the Holding Trustee, the Directors or the Advisers or any of their officers, directors, employees or agents, and that, in directing the execution and delivery of this Account Holder Letter, it has made an independent decision in consultation with its agents and professional advisers to the extent that it considers it necessary;
(n) it acknowledges that no information has been provided to it by the 2019 Notes Trustee, the 2024 Notes Trustee, the Holding Trustee, the Directors or the Advisers with regard to the tax consequences arising from the receipt of Scheme Creditor Entitlements or the participation in the Scheme or the Existing Notes Transfer and acknowledges that it is solely liable for any taxes and similar or related payments imposed on it under the laws of any applicable jurisdiction as a result of its participation in the Scheme and agrees that it will not and does not have any right of recourse (whether by way of reimbursements, indemnity or otherwise) against the 2019 Notes Trustee, the 2024 Notes Trustee, the Holding Trustee, the Directors, the Advisers or any other person in respect of such taxes and payments; and
(o) it empowers, authorises, requests and instructs the 2019 Notes Trustee, the 2024 Notes Trustee, the Holding Trustee, the Directors and the Advisers to do all such other things as may be necessary or expedient to carry out and give effect to the Scheme, the Existing Notes Transfer and the Restructuring (including, without limitation, the Restructuring Steps).
ANNEX B
SECURITIES LAW CONFIRMATIONS AND UNDERTAKINGS
1. The Existing Notes Scheme Creditor or, if the Existing Notes Scheme Creditor has appointed a Nominated Recipient, the Nominated Recipient, confirms to NN2 and Trafigura and its Affiliates:
(a) it has complied with all laws and regulations applicable to it in any jurisdiction with respect to the Scheme and this Account Holder Letter;
(b) it will accept Scheme Creditor Entitlements on the terms set out in the Scheme and/or the Existing Notes Transfer and agrees to be irrevocably and unconditionally bound by the Scheme (including in respect of the releases, waivers and undertakings provided by the Existing Notes Scheme Creditors under clause 9 of the Scheme Document, as if it were an Existing Notes Scheme Creditor) and/or the Existing Notes Transfer (as the case may be);
(c) it is not a Disqualified Person;
(d) it has obtained all necessary governmental and regulatory approvals with respect to the Scheme and this Account Holder Letter with respect to the Scheme and this Account Holder Letter; and
(e) it acknowledges that no information has been provided to it by the 2019 Notes Trustee, the 2024 Notes Trustee, the Holding Trustee, the Directors or the Advisers with regard to the tax consequences arising from the receipt of Scheme Creditor Entitlements or the participation in the Scheme or the Existing Notes Transfer and acknowledges that it is solely liable for any taxes and similar or related payments imposed on it under the laws of any applicable jurisdiction as a result of its participation in the Scheme or the Existing Notes Transfer and agrees that it will not and does not have any right of recourse (whether by way of reimbursements, indemnity or otherwise) against the 2019 Notes Trustee, the 2024 Notes Trustee, the Holding Trustee, the Directors or the Advisers in respect of such taxes and payments.
2. The Existing Notes Scheme Creditor or, if applicable, its Nominated Recipient, further confirms to NN2 that:
(a) it is either: (i) incorporated or situated in the European Economic Area and is a “qualified investor” within the meaning of the EU Prospectus Directive and a “professional investor” or “eligible counterparty” (and not a “retail investor”), each for the purposes of, and as defined in, Directive 2014/65/EU; or (ii) is not incorporated or situated in any member state of the European Economic Area;
(b) it is not located or resident in the United Kingdom or, if it is a resident of or located in the United Kingdom, it is a person within the definition of Investment Professionals (as defined in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the Order)) or within Article 43(2) of the Order or is a person to whom the solicitation may lawfully be communicated in accordance with the Order;
(c) it is not located or resident in Italy or, if it is located or resident in Italy it is: (i) a qualified investor (investitori qualificati), as defined under Article 100 of the Legislative Decree No. 58 of February 24, 1998, as amended (the Italian Financial Act), as implemented in Italy; or (ii) in other circumstances which are exempted from the rules on public offerings pursuant to Article 100 of the Italian Financial Act and its implementing regulations in Italy;
(d) it is not located in or resident in Germany or, if it is located in Germany, it is a qualified investor (qualifizierte Anleger) within the meaning of Section 2 No. 6 of the Securities Prospectus Act of the Federal Republic of Germany (Wertpapierprospektgesetz, WpPG) or it is subject to another exemption in accordance with Section 3 paragraph 2 of the same Securities Prospectus Act;
(e) it is not located or resident in France or, if it is located or resident in France, it is a (i) person providing investment services relating to portfolio management for the account of third parties (personnes fournissant le service d’investissement de gestion de portefeuille pour compte de tiers), and/or (ii) a qualified investor (investisseurs qualifiés) acting for their own account, in accordance with, the French Code monétaire et financier;
(f) it is not located or resident in Luxembourg or, if it is located or resident in Luxembourg, it is considered a qualified investor within the meaning of the law of 10 July 2005 on prospectus for securities;
(g) it is not located in the Netherlands or, if it is located in the Netherlands, it is a qualified investor (gekwalificeerde beleggers) within the meaning of the Dutch Financial Supervision Act (Wet op het financieel toezicht);
(h) it is not located or resident in the Cayman Islands or, if it is located in the Cayman Islands, it will not receive any Scheme Creditor Entitlements pursuant to any invitation to the public in the Cayman Islands to subscribe for any Scheme Creditor Entitlements and acknowledges that the invitation to subscribe for the Scheme Creditor Entitlements is not a public offering in the Cayman Islands;
(i) it is not located or resident in Hungary or, if it is located or resident in Hungary, it is considered a qualified investor (minsített befektet) within the meaning of the Hungarian Act 120 of 2011 on Capital Markets;
(j) it (i) is not a US Person (as defined in Regulation S of the United States Securities Act of 1933, as amended (the US Securities Act) (Regulation S)), and will receive the Scheme Creditor Entitlements in an offshore transaction as that term is defined in Regulation S and will not acquire Scheme Creditor Entitlements for the account or benefit of a US Person (other than fully-managed accounts); or (ii) is a US Person;
(k) if it is a US Person, it is an institutional “accredited investor” (IAI) within the meaning of Rule 501(a)(1), (2), (3) or (7) under the US Securities Act;
(l) it understands that the New Perpetual Notes, New 2023 MTNs and New CLIs are “restricted securities” as defined in Rule 144(a)(3) under the US Securities Act. In addition, it agrees that it will only transfer such New Perpetual Notes, New 2023 MTNs and New CLIs before the date that is: (1) in the case of the New Perpetual Notes, New 2023 MTNs and New CLIs issued in reliance on Regulation S, 40 days; and (2) otherwise, one year after the original issue date or such later date, if any, as may be required by applicable law if:
(i) there is an effective registration statement under the US Securities Act;
(ii) the transfer is made to an IAI that is purchasing for its own account or for the account of another IAI and if requested, the issuer of the relevant securities receives an opinion of counsel from the holder of these securities to such effect, reasonably satisfactory to it;
(iii) the transfer is made in accordance with Rule 144 (Rule 144) under the US Securities Act, and the issuer of the relevant securities receives evidence satisfactory to it that the provisions of Rule 144 have been complied with;
(iv) the transfer is made in accordance with another exemption from registration under the US Securities Act and if requested, the issuer of the relevant securities receives an opinion of counsel from the holder of these securities to such effect, reasonably satisfactory to it;
(v) the transfer is made in an offshore transaction in accordance with Regulation S (and not in a pre-arranged transaction resulting in the resale of such New Perpetual Notes, New 2023 MTNs or New CLIs into the United States); or
(vi) the transfer is made to Trafigura and its Affiliates,
in each case in accordance with any applicable securities laws of any State of the United States;
(m) it understands and acknowledges that NN2, Trafigura and its Affiliates and their respective agents shall not be obligated to recognise any resale or other transfer of the New Perpetual Notes, New 2023 MTNs and/or New CLIs represented thereby made other than in compliance with the restrictions set forth in this Account Holder Letter;
(n) it understands that unless NN2 and Trafigura and its Affiliates determine otherwise in accordance with applicable law, the New Perpetual Notes, New 2023 MTNs and New CLIs will bear a legend substantially in the following form:
“THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO TRAFIGURA AND ITS AFFILIATES, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, REGISTRATION UNDER RULE 144 UNDER THE SECURITIES ACT (“RULE 144”), IF AVAILABLE, AND TRAFIGURA AND ITS AFFILIATES RECEIVE EVIDENCE SATISFACTORY TO IT THAT THE PROVISIONS OF RULE 144 HAVE BEEN COMPLIED WITH, (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (5) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF THE SECURITY. EACH HOLDER OR OWNER OF A BENEFICIAL INTEREST IN THE NEW PERPETUAL NOTES, NEW 2023 MTNS AND/OR NEW CLIS UNDERSTANDS AND ACKNOWLEDGES THAT NN2, TRAFIGURA AND ITS AFFILIATES AND THEIR RESPECTIVE AGENTS SHALL NOT BE OBLIGATED TO RECOGNIZE ANY RESALE OR OTHER TRANSFER OF THE NEW PERPETUAL NOTES, NEW 2023 MTNS AND NEW CLIS REPRESENTED THEREBY MADE OTHER THAN IN COMPLIANCE WITH THE RESTRICTIONS SET FORTH ABOVE OR AS OTHERWISE INCORPORATED INTO THE NEW PERPETUAL NOTES, NEW 2023 MTNS AND/OR NEW CLIS.”
(o) it and any subsequent holder of the New Perpetual Notes, New 2023 MTNs and/or New CLIs, will notify any person to whom it subsequently re-offers, resells, pledges, transfers or otherwise disposes of the New Perpetual Notes, New 2023 MTNs and/or New CLIs of the foregoing restrictions on transfer and any certificates evidencing such securities shall contain a legend referring to such restrictions on transferability;
(p) it confirms that it will acquire an interest in its Scheme Creditor Entitlements for its own account as principal, or for the account of one or more other persons who are able to and who shall be deemed to make all of the representations and agreements in this Account Holder Letter and for whom it exercises sole investment discretion;
(q) it is not a participant-directed employee plan described in subsection (a)(1)(i)(D), (E) or (F) of Rule 144A;
(r) it will not acquire its Scheme Creditor Entitlements with a view to distribution thereof or with any present intention of offering or selling any of its Scheme Creditor Entitlements, except as permitted above, provided that the disposition of its property and property of any accounts for which it is acting as fiduciary will remain at all times within its control;
(s) the receipt of Scheme Creditor Entitlements by such person is not part of a plan or scheme to evade the registration requirements of the US Securities Act;
(t) it understands that any subsequent transfer of the New Perpetual Notes, New 2023 MTNs or New CLIs by it, is subject to the restrictions and conditions set forth in the contractual and constitutional documents constituting the New Perpetual Notes, New 2023 MTNs and New CLIs and it agrees to be bound by, and not to resell, pledge or otherwise transfer the New Perpetual Notes, New 2023 MTNs or New CLIs except in compliance with such restrictions;
(u) it understands that the offer to it of the New Perpetual Notes, New 2023 MTNs and New CLIs has not been, and will not be, registered under the US Securities Act or under the securities laws of any state or other jurisdiction of the United States and that such offer is being made to it or a Nominated Recipient in reliance on an exemption from, or in transactions not subject to, the registration requirements of the US Securities Act;
(v) it has not and will not solicit offers for, or offer or sell, New Perpetual Notes, New 2023 MTNs and/or New CLIs by any form of general solicitation or general advertising (as those terms are used in Regulation D under the US Securities Act) or in any manner involving a public offering within the meaning of Section 4(a)(2) of the US Securities Act;
(w) it understands that is not purchasing the New Perpetual Notes, New 2023 MTNs and/or New CLIs as a result of general solicitation or general advertising (as defined in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act, in each case with respect to the United States;
(x) it has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of investing in its Scheme Creditor Entitlements, and is experienced in investing in capital markets and is able to bear the economic risk of investing in its Scheme Creditor Entitlements, and has adequate means of providing for its current and contingent needs, and has no need for liquidity with respect to its investment in its Scheme Creditor Entitlements, and is able to sustain a complete loss of its investment in its Scheme Creditor Entitlements;
(y) it has or has access to all information that such person believes is necessary, sufficient or appropriate in connection with its acquisition of its Scheme Creditor Entitlements. Such person has made an independent decision to acquire its Scheme Creditor Entitlements based on the information concerning the business and financial condition of Trafigura and its Affiliates and the other members of the Group and other information available to such person, which it has determined is adequate for that purpose;
(z) in making its decision to acquire its Scheme Creditor Entitlements, it has made its own investment decision regarding its Scheme Creditor Entitlements (including, without limitation, the income tax consequences of purchasing, owning or disposing of its Scheme Creditor Entitlements in light of its particular situation and tax residence(s) as well as any consequences arising under the laws of any taxing jurisdiction) based on its own knowledge (and information such person may have or which is publicly available) with respect to Trafigura and its Affiliates and the Scheme Creditor Entitlements;
(aa) it acknowledges that NN2, Trafigura and its Affiliates and the other members of the Group and their respective agents and affiliates may possess material non-public information not known to such person regarding or relating to the Scheme Creditor Entitlements, Trafigura and its Affiliates, including, but not limited to, information concerning the business, financial condition, results of operations, prospects or restructuring plans of Trafigura and its Affiliates;
(bb) either: (i) it is the beneficial owner of, and has full power to vote in respect of and to dispose of (free and clear of any and all encumbrances of whatsoever nature) (or is able to direct the legal and beneficial owner of) the principal amount of the Existing Notes set forth in Part 1 (Existing Notes Scheme Creditor and Holding Details) of this Account Holder Letter; or (ii) it has been engaged to perform investment management services on behalf of the beneficial owner of, and has full power to vote in respect of and to dispose of (free and clear of any and all encumbrances of whatsoever nature) that principal amount of Existing Notes set forth in Part 1 (Existing Notes Scheme Creditor and Holding Details) of this Account Holder Letter;
(cc) it satisfies any and all standards for investors making an investment in the Scheme Creditor Entitlements imposed by the jurisdiction of its residence or otherwise;
(dd) it is empowered, authorised and qualified to elect to receive Scheme Creditor Entitlements;
(ee) it understands that the foregoing representations, warranties and agreements are required in connection with United States securities laws and that NN2, Trafigura and its Affiliates and others will rely upon the truth and accuracy of the foregoing acknowledgements, representations and agreements. It agrees that, if any of the acknowledgements, representations and warranties made in connection with its receipt of its Scheme Creditor Entitlements are no longer accurate, it will promptly, and in any event prior to the issuance of its Scheme Creditor Entitlements, notify NN2 and Trafigura and its Affiliates in writing;
(ff) it will comply with all securities laws of any state or any other applicable jurisdiction, including, without limitation, “blue sky” laws, and acceptance of its Scheme Creditor Entitlements will not violate any applicable law;
(gg) it will comply with all laws that apply to it in any place in which it accepts, holds or sells any of its New Perpetual Notes, New 2023 MTNs or New CLIs. Such person or Nominated Recipient has obtained all consents or approvals that it needs in order to receive its Scheme Creditor Entitlements, and neither NN2 nor Trafigura and its Affiliates are responsible for compliance with these legal requirements;
(hh) the allocation, allotment or issue and delivery to it will not give rise to a liability under any of sections 67, 70, 93 or 96 of the UK Finance Act 1986 (depositary receipts and clearance services) and it is not acting as nominee or agent for any person or persons to whom the allocation, allotment, issue or delivery of New Perpetual Notes, New 2023 MTNs or New CLIs would give rise to such a liability;
(ii) it has complied with all of its obligations in connection with money laundering and terrorist financing, including, without limitation under the UK Proceeds of Crime Act 2002, the UK Terrorism Act 2000, the UK Criminal Justice Act 1993, the UK Money Laundering Regulations 2007 and, if it is making payment on behalf of a third party, satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the regulations; it complies with the UK Bribery Act 2010; and it is not currently subject to any US sanctions administered by the Office of Foreign Assets Control of the US Treasury Department;
(jj) if it is a financial intermediary, as that term is used in Article 3(2) of the EU Prospectus Directive, it has not elected for its Scheme Creditor Entitlements on a non-discretionary basis on behalf of, nor will its Scheme Creditor Entitlements be acquired with a view to their offer or resale to, persons in circumstances which may give rise to an offer of shares to the public, other than their offer or resale in a member state of the European Economic Area which has implemented the EU Prospectus Directive, to Qualified Investors;
(kk) it has not offered or sold and, prior to the expiry of a period of six months from the Restructuring Effective Date, will not offer or sell any New Perpetual Notes, New 2023 MTNs or New CLIs to persons in the United Kingdom except to Qualified Investors (as defined in Section 86(7) of FSMA) or otherwise in circumstances which have not resulted and which will not result in an offer of transferable securities to the public in the United Kingdom within the meaning of Section 85(1) of FSMA;
(ll) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of Section 21 of FSMA) relating to the Scheme Creditor Entitlements in circumstances in which Section 21(1) of FSMA does not require approval of the communication by an authorised person;
(mm) it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Scheme Creditor Entitlements in, from or otherwise involving the United Kingdom;
(nn) it is entitled to subscribe for or otherwise acquire its Scheme Creditor Entitlements under the laws of all relevant jurisdictions which apply to it and it has fully observed such laws and obtained all such governmental and other guarantees and other consents which may be required thereunder and complied with all necessary formalities;
(oo) its Scheme Creditor Entitlements are not being acquired in connection with arrangements to issue depositary receipts or to transfer its New Perpetual Notes, New 2023 MTNs or New CLIs into a clearance service;
(pp) it acknowledges that the New Perpetual Notes, New 2023 MTNs and New CLIs have not been and will not be registered under the securities legislation of Australia, Canada or Japan and, subject to certain exceptions, may not be offered, sold, taken up, renounced or delivered or transferred, directly or indirectly, within Australia, Canada or Japan;
(qq) it is not, or at the time the New Perpetual Notes, New 2023 MTNs and New CLIs are subscribed, will not be subscribing on behalf of a resident of Australia, Canada or Japan;
(rr) it acknowledges that to the extent permitted by law, all representations, warranties and conditions, express or implied and whether statutory or otherwise (including, without limitation, pre-contractual representations but excluding any fraudulent representations), are expressly excluded in relation to the Scheme Creditor Entitlements;
(ss) it acknowledges that any rights and remedies of NN2 hereunder are in addition to any rights and remedies which would otherwise be available to it, and the exercise or partial exercise of one will not prevent the exercise of others;
(tt) it authorises NN2 or any person authorised by it, as its agent, to do all things necessary to effect registration of any New Perpetual Notes, New 2023 MTNs or New CLIs subscribed by it into its name(s) and authorise any representative of NN2 to execute and/or complete any document required for that purpose; and
(uu) it is able to bear the economic risk of an investment for an indefinite period and is able to sustain a complete loss on its investment in its Scheme Creditor Entitlements and it has concluded on the basis of the information available to it that it is able to bear the risks associated with such investment.