PART 6
SECURITIES CONFIRMATION DEED
To be completed by the Existing SSN Holder and, if applicable, each of its Nominated Recipients.
To receive the New 1L Notes, New 2L Notes, and/or Class A Preference Shares, a validly completed Account Holder Letter, including a validly completed Securities Confirmation Deed, must be submitted to and received by the Information Agent. For the avoidance of doubt, an Existing SSN Holder does not have to complete a Securities Confirmation Deed in order to vote on the Scheme. However, if no Securities Confirmation Deed is validly completed and submitted, the Existing SSN Holder or its Nominated Recipient will not receive any Scheme Creditor Entitlements on the Restructuring Effective Date.
THIS DEED IS MADE BY WAY OF DEED POLL BY (I) THE EXISTING SSN HOLDER WHOSE DETAILS ARE SET OUT IN PART 1 OF THE ACCOUNT HOLDER LETTER AND (II) EACH OF THE NOMINATED RECIPIENTS WHOSE DETAILS ARE SET OUT IN PART 5 OF THE ACCOUNT HOLDER LETTER (IF APPLICABLE), IN EACH CASE ON THE DATE STATED THEREIN FOR THE BENEFIT OF New Holdco AND THE COMPANY, AND WITH THE INTENTION AND EFFECT THAT IT MAY BE DIRECTLY RELIED UPON AND ENFORCED SEPARATELY BY, (I) EACH BENEFICIARY OF ANY RELEASE GRANTED UNDER THIS DEED; AND (II) ANY RELYING PERSON, AND ANY PERMITTED ASSIGNEE, EVEN THOUGH THEY ARE NOT PARTY TO THIS DEED.
1 Definitions and Interpretation
1.1 Unless expressed otherwise, terms defined in the Explanatory Statement shall have the same meaning in this Deed.
1.2 In this Deed unless the context otherwise requires:
(a) words in the singular include the plural and in the plural include the singular;
(b) the words “including” and “include” shall not be construed as or take effect as limiting the generality of the foregoing;
(c) the headings shall not be construed as part of this Deed nor affect its interpretation;
(d) references to any clause, without further designation, shall be construed as a reference to the clause of this Deed so numbered;
(e) reference to any act, statute or statutory provision shall include a reference to that provision as amended, re-enacted or replaced from time to time whether before or after the date of this Deed and any former statutory provision replaced (with or without modification) by the provision referred to;
(f) reference to a person includes a reference to any body corporate, unincorporated association or partnership and to that person’s legal personal representatives or successors; and
(g) the principles of construction set out in the Scheme apply to this Deed except that references to the Scheme shall instead be construed as referenced to this Deed.
2 Confirmations, Warranties, and Undertakings
The Existing SSN Holder or, if the Existing SSN Holder has appointed a Nominated Recipient, the Nominated Recipient, gives the following confirmations, acknowledgements, warranties and undertakings:
(a) if the Existing SSN Holder has elected to receive (or to have its Nominated Recipient receive) the New 1L Notes, New 2L Notes and/or Class A Preference Shares pursuant to Rule 144A (as defined in the Annex) by ticking the “Rule 144A New 1L Notes, Rule 144A New 2L Notes, and Rule 144A Class A Preference Shares” box in Part 4 (Scheme Creditor Entitlements) of this Account Holder Letter, those set out in Section 2 (Rule 144A New 1L Notes and Rule 144A New 2L Notes) and Section 3 (Rule 144A Class A Preference Shares) in Part A (Representations by the Existing SSN Holder and Nominated Recipient) of the Annex;
(b) if the Existing SSN Holder has elected to receive (or to have its Nominated Recipient receive) the New 1L Notes, New 2L Notes and/or Class A Preference Shares pursuant to Regulation S (as defined in the Annex) by ticking the “Regulation S New 1L Notes, Regulation S New 2L Notes, and Regulation S Class A Preference Shares” box in Part 4 (Scheme Creditor Entitlements) of the Account Holder Letter, those set out in Section 4 (Regulation S New 1L Notes and Regulation S New 2L Notes) and Section 5 (Regulation S Class A Preference Shares) in Part A (Representations by the Existing SSN Holder and Nominated Recipient) of the Annex; and
(c) those set out in Section 6 (Other Jurisdictions) in Part A (Representations by the Existing SSN Holder and Nominated Recipient) of the Annex.
3 Grant of Authority to the Company to Execute Certain Documents on its Behalf
On and from the Scheme Effective Date in relation to the Scheme, the Existing SSN Holder and, if the Existing SSN Holder has appointed one or more Nominated Recipients, the Nominated Recipient(s), in consideration of the rights provided to Scheme Creditors under the Scheme, hereby irrevocably authorises and directs the Company, the New 1L Notes Trustee, the New 2L Notes Trustee, and the New Security Trustee as its agent and attorney (acting by their respective directors or other duly appointed representatives) to enter into, execute, notarise, and deliver the documents and take each of the actions stipulated in clause 4 of the Scheme.
4 Governing Law
This Deed and any dispute or claim (including any non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with, the law of England and Wales.
5 Jurisdiction
The English courts shall have exclusive jurisdiction to settle any dispute or claim (including any non-contractual disputes or claims) arising out of or in connection with this Deed or its subject matter.
ANNEX
PART A: REPRESENTATIONS BY THE EXISTING SSN HOLDER AND NOMINATED RECIPIENT
1 Definitions
“Relevant Person” means (i) the Existing SSN Holder; or (2) its Nominated Recipient(s) (if appointed), as the case may be, giving the representations.
2 Rule 144A New 1L Notes and Rule 144A New 2L Notes
Each Relevant Person that is subscribing for New 1L Notes and New 2L Notes who is located in the United States or who is (or is acting for the account or benefit of) a U.S. Person, prior to accepting delivery of New 1L Notes and New 2L Notes, will be required to represent and warrant to the Company and the Parent on behalf of itself and each other person or account for which it is acting that:
(a) It understands that the New 1L Notes and New 2L Notes are being offered in reliance upon an exemption from, or in a transaction not subject to, registration under the Securities Act and similar provisions under state securities laws for an offer and sale by the Parent, not involving a public offering in the United States (the “Rule 144A New 1L Notes” and the “Rule 144A 2L Notes”, respectively).
(b) It represents and warrants that its purchase of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes is lawful under the laws of the jurisdiction of its incorporation and the jurisdiction in which it operates (if different), and that such acquisition will not contravene any law, regulation or regulatory policy applicable to it.
(c) It understands that the Rule 144A New 1L Notes and Rule 144A New 2L Notes have not been and will not be registered under the Securities Act or with any securities regulatory authority of any State or other jurisdiction of the United States.
(d) As a purchaser of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes in a private placement not registered under the Securities Act, it is receiving Rule 144A New 1L Notes and the Rule 144A New 2L Notes for its own account, or for an account as to which it exercises sole investment discretion, for investment purposes and (subject, to the extent necessary, to the disposition of its or such discretionary accounts’ property being at all times within its or their control) not with a view to any distribution or resale, directly or indirectly, in the United States or otherwise in violation of the securities laws of the United States. Neither it, nor any account for which it is acting (if any), was formed for the specific purpose of acquiring the Rule 144A New 1L Notes and the Rule 144A New 2L Notes.
(e) It understands that the Rule 144A New 1L Notes and the Rule 144A New 2L Notes issued in reliance on Section 4(a)(2) of the Securities Act are “restricted securities” (as defined by Rule 144 under the Securities Act), and that for one year after the latest of the original issue date of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes, the original issue date of the issuance of any additional notes, and the last date on which the issuer or any affiliate of the issuer was the owner of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes, the Rule 144A New 1L Notes and the Rule 144A New 2L Notes are restricted securities, may not be offered, sold, pledged or otherwise transferred except (a) to the issuer, the guarantors, or any Subsidiary thereof, (b) pursuant to a registration statement that has been declared effective under the Securities Act, (c) for so long as the Rule 144A New 1L Notes and the Rule 144A New 2L Notes are eligible for resale pursuant to Rule 144A, to a person that it, and any person acting on its behalf, reasonably believes is a QIB purchasing for its own account or for the account of one or more QIBs to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S to a person that is not a U.S. Person and that is not a retail investor (defined as a person who is one (or more) of: (x) a retail client as defined in point (11) of Article 4(1) of MiFID II; or (y) a customer within the meaning of the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II), or (e) pursuant to an exemption from, or in a transaction not subject to, registration under the Securities Act provided by Rule 144 thereunder (if available) in each case in accordance with any applicable securities laws of the United States and any State or other jurisdiction of the United States.
(f) It understands that no representation has been made as to the availability of any exemption under the Securities Act or any applicable securities laws of any State or other jurisdiction of the United States for the reoffer, resale, pledge or transfer of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes and that, pursuant to these laws, such securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available.
(g) It understands that, if an exemption from registration or qualification under the Securities Act or U.S. federal and state securities laws is available, it may be conditional on various requirements including, but not limited to, the time and manner of sale, the holding period for the Rule 144A New 1L Notes and the Rule 144A New 2L Notes, and requirements relating to the Parent which are outside its control, and which the Parent would not be under any obligation (and may not be able) to satisfy.
(h) It understands that the transfer agent for the Rule 144A New 1L Notes and the Rule 144A New 2L Notes will not be required to accept for registration of transfer any Rule 144A New 1L Notes and the Rule 144A 2L Notes acquired by the undersigned or any account of the undersigned, except upon presentation of evidence satisfactory to the Parent as the issuer of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes respectively, and the transfer agent that the foregoing restrictions on transfer have been complied with. It will give to each person to whom it transfers the Rule 144A New 1L Notes and the Rule 144A New 2L Notes notice of any restrictions on the transfer of such Rule 144A New 1L Notes and the Rule 144A New 2L Notes.
(i) It and any account for which it is acting (if any) became aware of the offering of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes, and the Rule 144A New 1L Notes and the Rule 144A New 2L Notes were offered to it and each account for which it is acting (if any), solely by means of direct contact between it and the Parent as the issuer of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes, and not by any other means. It and any account for which it is acting (if any) did not become aware of the offering of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes, and the Rule 144A New 1L Notes and the Rule 144A New 2L Notes were not offered to it or any account for which it is acting (if any), by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“Regulation D”), in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or through any directed selling efforts within the meaning of Regulation S.
(j) It understands that the Rule 144A New 1L Notes and the Rule 144A New 2L Notes will bear a legend in or substantially in the following form:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION AND, ACCORDINGLY, NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR 904 OF REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS ONE YEAR AFTER THE LATEST OF THE ORIGINAL ISSUANCE OF THIS SECURITY, THE DATE OF ISSUANCE OF ANY ADDITIONAL NOTES OF THE SAME SERIES AS THE ORIGINAL ISSUANCE, AND THE LAST DATE ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THIS SECURITY, OFFER, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY BUYER THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT, AND ANY PERSON ACTING ON ITS BEHALF, REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT TO A PERSON THAT IS NOT A U.S. PERSON OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND TO COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE REVERSE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION”, “UNITED STATES”, AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE U.S. SECURITIES ACT.”
(k) It will notify any person to whom it subsequently reoffers, resells, pledges, transfers or otherwise disposes of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes of the foregoing restrictions on transfer and any certificates evidencing such securities shall contain a legend referring to such restrictions on transferability.
(l) It acknowledges and agrees that the Rule 144A New 1L Notes and the Rule 144A New 2L Notes may be issued in a certificated registered form and that each notes certificate will bear appropriate legends.
(m) It is a “qualified institutional buyer” as defined in Rule 144A and its receipt of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act.
(n) As a purchaser of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes in a private placement not registered under the Securities Act, it: (a) has reviewed all information, including this Explanatory Statement, that it believes is necessary or appropriate in connection with its election to receive the Rule 144A New 1L Notes and the Rule 144A New 2L Notes; (b) possesses such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its prospective investment in the Rule 144A New 1L Notes and the Rule 144A New 2L Notes; (c) understands that, in the future, the Rule 144A New 1L Notes and the Rule 144A New 2L Notes may significantly increase or decrease in value; and (d) would be able to afford a complete loss of the value of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes and would be able to bear the economic risk of holding such securities for an indefinite period.
(o) As a purchaser of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes in a private placement not registered under the Securities Act, it acknowledges that the Parent, as the issuer of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes, respectively, nor any of their respective subsidiaries, affiliates or any other person, has made any representation, warranty or undertaking (express or implied) to it with respect to the Parent, the guarantors, the Rule 144A New 1L Notes and the Rule 144A New 2L Notes or the accuracy, completeness or adequacy of any financial or other information concerning the Parent or the guarantors, or the Rule 144A New 1L Notes and the Rule 144A New 2L Notes, other than any representation, warranty or undertaking of the Parent, the guarantors, and their subsidiaries contained in this Explanatory Statement. Further, none of the Parent, the guarantors, and their subsidiaries or their affiliates, directors, officers, employees, agents, representatives or advisers makes any representation as to the future performance of the Parent, the guarantors, or any of their subsidiaries or affiliates or their respective securities, including the Rule 144A New 1L Notes and the Rule 144A New 2L Notes.
(p) It understands that there may be certain consequences under United States and other tax laws resulting from an investment in the Rule 144A New 1L Notes and the Rule 144A New 2L Notes and it has made such investigation and has consulted its own independent advisers or otherwise has satisfied itself concerning, without limitation, the effects of the United States federal, state and local income tax laws and foreign tax laws generally and the U.S. Employee Retirement Income Security Act of 1974, as amended, the U.S. Investment Company Act of 1940, as amended, and the Securities Act.
(q) It (and each other qualified institutional buyer, if any, for whose account it is receiving the Rule 144A New 1L Notes and the Rule 144A New 2L Notes) understands that an investment in the Rule 144A New 1L Notes and the Rule 144A New 2L Notes involves a high degree of risk, and no guarantees or representations have been made or can be made with respect to the future value of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes or the future profitability or success of the Issuer and its Subsidiaries.
(r) It satisfies any and all standards for investors making an investment in the Rule 144A New 1L Notes and the Rule 144A New 2L Notes imposed by the jurisdiction of its residence or otherwise.
(s) It is empowered, authorised and qualified to receive the Rule 144A New 1L Notes and the Rule 144A New 2L Notes.
(t) It understands that the foregoing representations, warranties and agreements are required in connection with United States securities laws and that the Parent 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 the Rule 144A New 1L Notes and the Rule 144A New 2L Notes are no longer accurate, it will promptly, and in any event prior to the issuance of the Rule 144A New 1L Notes and the Rule 144A New 2L Notes to it, notify the Parent and the Company in writing.
(u) If it is receiving the Rule 144A New 1L Notes and the Rule 144A New 2L Notes for the account of another person, it represents that it has full power and authorisation to make the foregoing acknowledgements, representations and agreements on behalf of each such account.
(v) It acknowledges that the Parent may request from it and/or any account for which it is acting (if any) such additional information as the Parent may reasonably deem necessary to evaluate and determine its eligibility or the eligibility of any account for which it is acting to acquire the Rule 144A New 1L Notes and the Rule 144A New 2L Notes, or to enable the Parent to comply with applicable regulatory requirements or tax law, and it and each account for which it is acting (if any) shall use reasonable efforts to provide such information as may reasonably be requested, provided that in no event shall any purchaser be obliged to disclose the name (or any other identifying information) of its limited partners, members or shareholders.
3 Rule 144A Class A Preference Shares
Each Relevant Person that is subscribing for Class A Preference Shares who is located in the United States or who is (or is acting for the account or benefit of) a U.S. Person, prior to accepting delivery of Class A Preference Shares will be required to represent and warrant to the Company and New Holdco on behalf of itself and each other person or account for which it is acting that:
(a) It understands that the Class A Preference Shares issued to such Relevant Persons under the Scheme to the Relevant Persons located in the United States who are U.S. Persons are being offered in reliance upon an exemption from, or in a transaction not subject to, registration under the Securities Act and similar provisions under state securities laws for an offer and sale by New Holdco not involving a public offering in the United States (the “Rule 144A Class A Preference Shares”).
(b) It represents and warrants that its purchase of the Rule 144A Class A Preference Shares is lawful under the laws of the jurisdiction of its incorporation and the jurisdiction in which it operates (if different), and that such acquisition will not contravene any law, regulation or regulatory policy applicable to it.
(c) It understands that the Rule 144A Class A Preference Shares have not been and will not be registered under the Securities Act or with any securities regulatory authority of any State or other jurisdiction of the United States.
(d) As a subscriber of the Rule 144A Class A Preference Shares in a private placement not registered under the Securities Act, it is receiving Rule 144A Class A Preference Shares for its own account, or for an account as to which it exercises sole investment discretion, for investment purposes and (subject, to the extent necessary, to the disposition of its or such discretionary accounts’ property being at all times within its or their control) not with a view to any distribution or resale, directly or indirectly, in the United States or otherwise in violation of the securities laws of the United States. Neither it, nor any account for which it is acting (if any), was formed for the specific purpose of acquiring the Rule 144A Class A Preference Shares.
(e) It understands that the Rule 144A Class A Preference Shares issued in reliance on Section 4(a)(2) of the Securities Act are “restricted securities” (as defined by Rule 144 under the Securities Act), and that for one year after the latest of the original issue date of the Rule 144A Class A Preference Shares, the original issue date of the issuance of any additional shares, and the last date on which the issuer or any affiliate of the issuer was the owner of the Rule 144A Class A Preference Shares, the Rule 144A Class A Preference Shares are restricted securities, may not be offered, sold, pledged or otherwise transferred except (a) to the issuer or any Subsidiary thereof, (b) pursuant to a registration statement that has been declared effective under the Securities Act, (c) for so long as the Rule 144A Class A Preference Shares are eligible for resale pursuant to Rule 144A, to a person that it, and any person acting on its behalf, reasonably believes is a QIB purchasing for its own account or for the account of one or more QIBs to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S and to a person that is not a retail investor (defined as a person who is one (or more) of: (x) a retail client as defined in point (11) of Article 4(1) of MiFID II; or (y) a customer within the meaning of the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II), or (e) pursuant to an exemption from, or in a transaction not subject to, registration under the Securities Act provided by Rule 144 thereunder (if available) in each case in accordance with any applicable securities laws of the United States and any State or other jurisdiction of the United States.
(f) It understands that no representation has been made as to the availability of any exemption under the Securities Act or any applicable securities laws of any State or other jurisdiction of the United States for the reoffer, resale, pledge or transfer of the Rule 144A Class A Preference Shares and that, pursuant to these laws, such securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available.
(g) It understands that, if an exemption from registration or qualification under the Securities Act or U.S. federal and state securities laws is available, it may be conditional on various requirements including, but not limited to, the time and manner of sale, the holding period for the Rule 144A Class A Preference Shares, and requirements relating to New Holdco which are outside its control, and which New Holdco would not be under any obligation (and may not be able) to satisfy.
(h) It understands that New Holdco will not be required to accept for registration of transfer any Rule 144A Class A Preference Shares acquired by the undersigned or any account of the undersigned, except upon presentation of evidence satisfactory to New Holdco that the foregoing restrictions on transfer have been complied with. It will give to each person to whom it transfers the Rule 144A Class A Preference Shares notice of any restrictions on the transfer of such Rule 144A Class A Preference Shares.
(i) It and any account for which it is acting (if any) became aware of the offering of the Rule 144A Class A Preference Shares, and the Rule 144A Class A Preference Shares were offered to it and each account for which it is acting (if any), solely by means of direct contact between it and New Holdco and not by any other means. It and any account for which it is acting (if any) did not become aware of the offering of the Rule 144A Class A Preference Shares, and the Rule 144A Class A Preference Shares were not offered to it or any account for which it is acting (if any), by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D, in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or through any directed selling efforts within the meaning of Regulation S.
(j) It understands that, to the extent the Rule 144A Class A Preference Shares are delivered in certificated form, the certificate (or the shareholder register) will bear a legend in or substantially in the following form:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION AND, ACCORDINGLY, NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE U.S. SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS ONE YEAR, AFTER THE LATEST OF THE ORIGINAL ISSUANCE OF THIS SECURITY, THE DATE OF ISSUANCE OF ANY ADDITIONAL SHARES OF THE SAME SERIES AS THE ORIGINAL ISSUANCE, AND THE LAST DATE ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THIS SECURITY, OFFER, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY BUYER THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT, AND ANY PERSON ACTING ON ITS BEHALF, REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT TO A PERSON THAT IS NOT A U.S. PERSON OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND TO COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A DEED OF ADHERENCE TO THE SHAREHOLDERS’ AGREEMENT IN RESPECT OF THE SHARES IS EXECUTED AND DELIVERED BY THE TRANSFEREE TO THE ISSUER AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION”, “UNITED STATES”, AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE U.S. SECURITIES ACT.”
(k) It will notify any person to whom it subsequently reoffers, resells, pledges, transfers or otherwise disposes of the Rule 144A Class A Preference Shares of the foregoing restrictions on transfer and any certificates evidencing such securities shall contain a legend referring to such restrictions on transferability.
(l) It acknowledges and agrees that the Rule 144A Class A Preference Shares may be issued in a certificated registered form and that each share certificate will bear appropriate legends.
(m) It is a “qualified institutional buyer” as defined in Rule 144A and its receipt of the Rule 144A Class A Preference Shares is not part of a plan or scheme to evade the registration requirements of the Securities Act.
(n) As a purchaser of the Rule 144A Class A Preference Shares in a private placement not registered under the Securities Act, it: (a) has reviewed all information, including this Explanatory Statement, that it believes is necessary or appropriate in connection with its election to receive the Rule 144A Class A Preference Shares; (b) possesses such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its prospective investment in the Rule 144A Class A Preference Shares; (c) understands that, in the future, the Rule 144A Class A Preference Shares may significantly increase or decrease in value; and (d) would be able to afford a complete loss of the value of the Rule 144A Class A Preference Shares and would be able to bear the economic risk of holding such securities for an indefinite period.
(o) As a purchaser of the Rule 144A Class A Preference Shares in a private placement not registered under the Securities Act, it acknowledges that neither New Holdco, as the issuer, nor any of its subsidiaries, affiliates or any other person, has made any representation, warranty or undertaking (express or implied) to it with respect to New Holdco, the Rule 144A Class A Preference Shares or the accuracy, completeness or adequacy of any financial or other information concerning New Holdco or the Rule 144A Class A Preference Shares, other than (in the case of New Holdco and its subsidiaries only) any representation, warranty or undertaking of New Holdco and its subsidiaries contained in this Explanatory Statement. Further, none of New Holdco and its subsidiaries or its affiliates, directors, officers, employees, agents, representatives or advisers makes any representation as to the future performance of New Holdco or any of its subsidiaries or affiliates or its respective securities, including the Rule 144A Class A Preference Shares.
(p) It understands that there may be certain consequences under United States and other tax laws resulting from an investment in the Rule 144A Class A Preference Shares and it has made such investigation and has consulted its own independent advisers or otherwise has satisfied itself concerning, without limitation, the effects of the United States federal, state and local income tax laws and foreign tax laws generally and the U.S. Employee Retirement Income Security Act of 1974, as amended, the U.S. Investment Company Act of 1940, as amended, and the Securities Act.
(q) It (and each other qualified institutional buyer, if any, for whose account it is receiving the Rule 144A Class A Preference Shares), understands that an investment in the Rule 144A Class A Preference Shares involves a high degree of risk, and no guarantees or representations have been made or can be made with respect to the future value of the Rule 144A Class A Preference Shares or the future profitability or success of the Issuer and its Subsidiaries.
(r) It satisfies any and all standards for investors making an investment in the Rule 144A Class A Preference Shares imposed by the jurisdiction of its residence or otherwise.
(s) It is empowered, authorised and qualified to receive the Rule 144A Class A Preference Shares. It understands that the foregoing representations, warranties and agreements are required in connection with United States securities laws and that New Holdco 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 the Rule 144A Class A Preference Shares are no longer accurate, it will promptly, and in any event prior to the issuance of the Rule 144A Class A Preference Shares to it, notify New Holdco and the Company in writing.
(t) If it is receiving the Rule 144A Class A Preference Shares for the account of another person, it represents that it has full power and authorisation to make the foregoing acknowledgements, representations and agreements on behalf of each such account.
(u) It acknowledges that New Holdco may request from it and/or any account for which it is acting (if any) such additional information as New Holdco may deem necessary to evaluate its eligibility or the eligibility of any account for which it is acting to acquire the Rule 144A Class A Preference Shares, and may request from time to time such information as New Holdco may reasonably deem necessary to determine its eligibility or eligibility of any account for which it is acting to hold the Rule 144A Class A Preference Shares or to enable New Holdco to comply with applicable regulatory requirements or tax law, and it and each account for which it is acting (if any) shall use reasonable efforts to provide such information as may reasonably be requested, provided that in no event shall any purchaser be obliged to disclose the name (or any other identifying information) of its limited partners, members or shareholders.
4 Regulation S New 1L Notes and Regulation S New 2L Notes
Each Relevant Person that is subscribing for New 1L Notes and New 2L Notes who is not required to give the representations and warranties pursuant to Section 2 (Rule 144A New 1L Notes and Rule 144A New 2L Notes) above will be required to represent and warrant to the Company and the Parent, on behalf of itself and each other person or account for which it is acting that:
(a) It is, or at the time New 1L Notes and New 2L Notes issued to such Relevant Persons under the Scheme (such New 1L Notes and New 2L Notes, the “Regulation S New 1L Notes” and “Regulation S New 2L Notes”) are delivered will be, the beneficial owner of such Regulation S New 1L Notes and Regulation S New 2L Notes and (a) it is not a U.S. Person and it is located and resident outside the United States (within the meaning of Regulation S) and (b) it is not an affiliate of the Parent or a person acting on behalf of such an affiliate.
(b) It represents and warrants that its purchase of the Regulation S New 1L Notes and Regulation S New 2L Notes is lawful under the laws of the jurisdiction of its incorporation and the jurisdiction in which it operates (if different), and that such acquisition will not contravene any law, regulation or regulatory policy applicable to it.
(c) It understands that such Regulation S New 1L Notes and Regulation S New 2L Notes have not been and will not be registered under the Securities Act or with any securities regulatory authority of any State or other jurisdiction of the United States.
(d) As a purchaser of the Regulation S New 1L Notes and Regulation S New 2L Notes not registered under the Securities Act, it is receiving Regulation S New 1L Notes and Regulation S New 2L Notes for its own account, or for an account as to which it exercises sole investment discretion, for investment purposes and (subject, to the extent necessary, to the disposition of its or such discretionary accounts’ property being at all times within its or their control) not with a view to any distribution or resale, directly or indirectly, in the United States or otherwise in violation of the securities laws of the United States. Neither it, nor any account for which it is acting (if any), was formed for the specific purpose of acquiring the Regulation S New 1L Notes and Regulation S New 2L Notes.
(e) It understands that the Regulation S New 1L Notes and Regulation S New 2L Notes are “restricted securities” (as defined by Rule 144 under the Securities Act), and that for 40 days after the latest of the original issue date of the Regulation S New 1L Notes and Regulation S New 2L Notes, the original issue date of the issuance of any additional notes, and the date on which the Regulation S New 1L Notes and Regulation S New 2L Notes (or any predecessors thereto) were first offered to persons other than distributors, the Regulation S New 1L Notes and Regulation S New 2L Notes may not be offered, sold, pledged or otherwise transferred except (a) to the issuer, the guarantors, or any Subsidiary thereof, (b) pursuant to a registration statement that has been declared effective under the Securities Act, (c) for so long as the Regulation S New 1L Notes and Regulation S New 2L Notes are eligible for resale pursuant to Rule 144A, to a person that it, and any person acting on its behalf, reasonably believes is a QIB purchasing for its own account or for the account of one or more QIBs to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S to a person that is a non-U.S. Person and that is not a retail investor (defined as a person who is one (or more) of: (x) a retail client as defined in point (11) of Article 4(1) of MiFID II; or (y) a customer within the meaning of the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II), or (e) pursuant to an exemption from, or in a transaction not subject to, registration under the Securities Act provided by Rule 144 thereunder (if available) in each case in accordance with any applicable securities laws of the United States and any State or other jurisdiction of the United States.
(f) It understands that no representation has been made as to the availability of any exemption under the Securities Act or any applicable securities laws of any State or other jurisdiction of the United States for the reoffer, resale, pledge or transfer of the Regulation S New 1L Notes and Regulation S New 2L Notes and that, pursuant to these laws, such securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available.
(g) It understands that, if an exemption from registration or qualification under the Securities Act or U.S. federal and state securities laws is available, it may be conditional on various requirements including, but not limited to, the time and manner of sale, the holding period for the Regulation S New 1L Notes and Regulation S New 2L Notes, and requirements relating to the Parent which are outside its control, and which the Parent would not be under any obligation (and may not be able) to satisfy.
(h) It understands that the transfer agent for the Regulation S New 1L Notes and Regulation S New 2L Notes will not be required to accept for registration of transfer any Regulation S New 1L Notes and Regulation S New 2L Notes acquired by the undersigned or any account of the undersigned, except upon presentation of evidence satisfactory to the Parent, as the issuer, and the transfer agent that the foregoing restrictions on transfer have been complied with. It will give to each person to whom it transfers the Regulation S New 1L Notes and Regulation S New 2L Notes notice of any restrictions on the transfer of such Regulation S New 1L Notes and Regulation S New 2L Notes.
(i) It and any account for which it is acting (if any) became aware of the offering of the Regulation S New 1L Notes and Regulation S New 2L Notes, and the Regulation S New 1L Notes and Regulation S New 2L Notes were offered to it and each account for which it is acting (if any), solely by means of direct contact between it and the Parent as the issuer, and not by any other means. It and any account for which it is acting (if any) did not become aware of the offering of the Regulation S New 1L Notes and Regulation S New 2L Notes, and the Regulation S New 1L Notes and Regulation S New 2L Notes were not offered to it or any account for which it is acting (if any), by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act, in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or through any directed selling efforts within the meaning of Regulation S.
(j) It understands that the Regulation S New 1L Notes and Regulation S New 2L Notes will bear a legend in or substantially in the following form:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION AND, ACCORDINGLY, NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS (X) A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE U.S. SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATEST OF THE ORIGINAL ISSUANCE OF THIS SECURITY, THE DATE OF ISSUANCE OF ANY ADDITIONAL NOTES OF THE SAME SERIES AS THE ORIGINAL ISSUANCE, AND THE LAST DATE ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THIS SECURITY, OFFER, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY BUYER THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT, AND ANY PERSON ACTING ON ITS BEHALF, REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT TO A PERSON THAT IS A NON-U.S. PERSON OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND TO COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE REVERSE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION”, “UNITED STATES”, AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE U.S. SECURITIES ACT.”
(k) It will notify any person to whom it subsequently reoffers, resells, pledges, transfers or otherwise disposes of the Regulation S New 1L Notes and Regulation S New 2L Notes of the foregoing restrictions on transfer and any certificates evidencing such securities shall contain a legend referring to such restrictions on transferability.
(l) It acknowledges and agrees that the Regulation S New 1L Notes and Regulation S New 2L Notes may be issued in a certificated registered form and that each notes certificate will bear appropriate legends.
(m) It is not a retail investor (defined as a person who is one (or more) of: (x) a retail client as defined in point (11) of Article 4(1) of MiFID II; or (y) a customer within the meaning of the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II).
(n) It: (a) has reviewed all information, including this Explanatory Statement, that it believes is necessary or appropriate in connection with its election to receive the Regulation S New 1L Notes and Regulation S New 2L Notes; (b) possesses such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its prospective investment in the Regulation S New 1L Notes and Regulation S New 2L Notes; (c) understands that, in the future, the Regulation S New 1L Notes and Regulation S New 2L Notes may significantly increase or decrease in value; and (d) would be able to afford a complete loss of the value of the Regulation S New 1L Notes and Regulation S New 2L Notes and would be able to bear the economic risk of holding such securities for an indefinite period.
(o) It acknowledges that the Parent, as the issuer, nor any of its subsidiaries, affiliates or any other person, has made any representation, warranty or undertaking (express or implied) to it with respect to the Parent and the guarantors, the Regulation S New 1L Notes and Regulation S New 2L Notes or the accuracy, completeness or adequacy of any financial or other information concerning the Parent and the guarantors or the Regulation S New 1L Notes and Regulation S New 2L Notes, other than any representation, warranty or undertaking of the Parent and the guarantors and their subsidiaries contained in this Explanatory Statement. Further, none of the Parent or the guarantors and their subsidiaries or their affiliates, directors, officers, employees, agents, representatives or advisers makes any representation as to the future performance of the Parent and the guarantors or any of their subsidiaries or affiliates or their respective securities, including the Regulation S New 1L Notes and Regulation S New 2L Notes.
(p) It understands that there may be certain consequences under United States and other tax laws resulting from an investment in the Regulation S New 1L Notes and Regulation S New 2L Notes and it has made such investigation and has consulted its own independent advisers or otherwise has satisfied itself concerning, without limitation, the effects of the United States federal, state and local income tax laws and foreign tax laws generally and the U.S. Employee Retirement Income Security Act of 1974, as amended, the U.S. Investment Company Act of 1940, as amended, and the Securities Act.
(q) It (and each other qualified institutional buyer, if any, for whose account it is receiving the Regulation S New 1L Notes and Regulation S New 2L Notes), understands that an investment in the Regulation S New 1L Notes and Regulation S New 2L Notes involves a high degree of risk, and no guarantees or representations have been made or can be made with respect to the future value of the Regulation S New 1L Notes and Regulation S New 2L Notes or the future profitability or success of the Issuer and its Subsidiaries.
(r) It satisfies any and all standards for investors making an investment in the Regulation S New 1L Notes and Regulation S New 2L Notes imposed by the jurisdiction of its residence or otherwise.
(s) It is empowered, authorised and qualified to receive the Regulation S New 1L Notes and Regulation S New 2L Notes.
(t) It understands that the foregoing representations, warranties and agreements are required in connection with United States securities laws and the Parent, 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 the Regulation S New 1L Notes and Regulation S New 2L Notes are no longer accurate, it will promptly, and in any event prior to the issuance of the Regulation S New 1L Notes and Regulation S New 2L Notes to it, notify the Parent and the Company in writing.
(u) If it is receiving the Regulation S New 1L Notes and Regulation S New 2L Notes for the account of another person, it represents that it has full power and authorisation to make the foregoing acknowledgements, representations and agreements on behalf of each such account.
(v) It acknowledges that the Parent may request from it and/or any account for which it is acting (if any) such additional information as the Parent may reasonably deem necessary to evaluate and determine its eligibility or the eligibility of any account for which it is acting to acquire the Regulation S New 1L Notes and Regulation S New 2L Notes, or to enable the issuer to comply with applicable regulatory requirements or tax law, and it and each account for which it is acting (if any) shall use reasonable efforts to provide such information as may reasonably be requested; provided that in no event shall any purchaser be obliged to disclose the name (or any other identifying information) of its limited partners, members or shareholders.
5 Regulation S Class A Preference Shares
5.1 Each Relevant Person that is subscribing for Class A Preference Shares who is not required to give the representations and warranties pursuant to Section 3 (Rule 144A Class A Preference Shares) above will be required to represent and warrant to the Company and New Holdco, on behalf of itself and each other person or account for which it is acting that:
(a) It is, or at the time Regulation S Preferences Shares issued to such Relevant Persons (such Regulation S Preferences Shares, the “Regulation S Preferences Shares”) are delivered will be, the beneficial owner of such Regulation S Preferences Shares and (a) it is not a U.S. Person and it is located and resident outside the United States (within the meaning of Regulation S) and (b) it is not an affiliate of New Holdco or a person acting on behalf of such an affiliate.
(b) It represents and warrants that its purchase of the Regulation S Preferences Shares is lawful under the laws of the jurisdiction of its incorporation and the jurisdiction in which it operates (if different), and that such acquisition will not contravene any law, regulation or regulatory policy applicable to it.
(c) It understands that such Regulation S Preferences Shares have not been and will not be registered under the Securities Act or with any securities regulatory authority of any State or other jurisdiction of the United States.
(d) As a subscriber of the Regulation S Preferences Shares not registered under the Securities Act, it is receiving Regulation S Preferences Shares for its own account, or for an account as to which it exercises sole investment discretion, for investment purposes and (subject, to the extent necessary, to the disposition of its or such discretionary accounts’ property being at all times within its or their control) not with a view to any distribution or resale, directly or indirectly, in the United States or otherwise in violation of the securities laws of the United States. Neither it, nor any account for which it is acting (if any) was formed for the specific purpose of acquiring the Regulation S Preferences Shares.
(e) It understands that the Regulation S Preferences Shares are “restricted securities” (as defined by Rule 144 under the Securities Act), and that for 40 days after the latest of the original issue date of the Regulation S Preferences Shares, the original issue date of the issuance of any additional shares, and the date on which the Regulation S Preferences Shares (or any predecessors thereto) were first offered to persons other than distributors, the Regulation S Preferences Shares may not be offered, sold, pledged or otherwise transferred except (a) to the issuer or any Subsidiary thereof, (b) pursuant to a registration statement that has been declared effective under the Securities Act, (c) for so long as the Regulation S Preferences Shares are eligible for resale pursuant to Rule 144A, to a person that it, and any person acting on its behalf, reasonably believes is a QIB purchasing for its own account or for the account of one or more QIBs to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S to a person that is a non-U.S. Person and that is not a retail investor (defined as a person who is one (or more) of: (x) a retail client as defined in point (11) of Article 4(1) of MiFID II; or (y) a customer within the meaning of the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II) or (e) pursuant to an exemption from, or in a transaction not subject to, registration under the Securities Act provided by Rule 144 thereunder (if available) in each case in accordance with any applicable securities laws of the United States and any State or other jurisdiction of the United States.
(f) It understands that no representation has been made as to the availability of any exemption under the Securities Act or any applicable securities laws of any State or other jurisdiction of the United States for the reoffer, resale, pledge or transfer of the Regulation S Preferences Shares and that, pursuant to these laws, such securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available.
(g) It understands that, if an exemption from registration or qualification under the Securities Act or U.S. federal and state securities laws is available, it may be conditional on various requirements including, but not limited to, the time and manner of sale, the holding period for the Regulation S Preferences Shares, and requirements relating to New Holdco which are outside its control, and which New Holdco would not be under any obligation (and may not be able) to satisfy.
(h) It understands that New Holdco will not be required to accept for registration of transfer any Regulation S Preferences Shares acquired by the undersigned or any account of the undersigned, except upon presentation of evidence satisfactory to New Holdco that the foregoing restrictions on transfer have been complied with. It will give to each person to whom it transfers the Regulation S Preferences Shares notice of any restrictions on the transfer of such Regulation S Preferences Shares.
(i) It and any account for which it is acting (if any) became aware of the offering of the Regulation S Preferences Shares, and the Regulation S Preferences Shares were offered to it and each account for which it is acting (if any), solely by means of direct contact between it and New Holdco, and not by any other means. It and any account for which it is acting (if any) did not become aware of the offering of the Regulation S Preferences Shares, and the Regulation S Preferences Shares were not offered to it or any account for which it is acting (if any), by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act, in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or through any directed selling efforts within the meaning of Regulation S.
(j) It understands that, to the extent the Regulation S Preferences Shares are delivered in certificated form, the certificate will bear a legend in or substantially in the following form:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION AND, ACCORDINGLY, NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE U.S. SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATEST OF THE ORIGINAL ISSUANCE OF THIS SECURITY, THE DATE OF ISSUANCE OF ANY ADDITIONAL SHARES OF THE SAME SERIES AS THE ORIGINAL ISSUANCE, AND THE LAST DATE ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THIS SECURITY, OFFER, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY BUYER THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT, AND ANY PERSON ACTING ON ITS BEHALF, REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT TO A PERSON THAT IS A NON-U.S. PERSON OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND TO COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A DEED OF ADHERENCE TO THE SHAREHOLDER’S AGREEMENT IN RESPECT OF THE SHARES IS EXECUTED AND DELIVERED BY THE TRANSFEREE TO THE ISSUER AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION”, “UNITED STATES”, AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE U.S. SECURITIES ACT.”
(k) It will notify any person to whom it subsequently reoffers, resells, pledges, transfers or otherwise disposes of the Regulation S Preferences Shares of the foregoing restrictions on transfer and any certificates evidencing such securities shall contain a legend referring to such restrictions on transferability.
(l) It acknowledges and agrees that the Regulation S Preferences Shares may be issued in a certificated registered form and that each share certificate will bear appropriate legends.
(m) It is not a retail investor (defined as a person who is one (or more) of: (x) a retail client as defined in point (11) of Article 4(1) of MiFID II; or (y) a customer within the meaning of the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II).
(n) It: (a) has reviewed all information if any, that it believes is necessary or appropriate in connection with its election to receive the Regulation S Preferences Shares; (b) possesses such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its prospective investment in the Regulation S Preferences Shares; (c) understands that, in the future, the Regulation S Preferences Shares may significantly increase or decrease in value; and (d) would be able to afford a complete loss of the value of the Regulation S Preferences Shares and would be able to bear the economic risk of holding such securities for an indefinite period.
(o) It acknowledges that neither New Holdco, nor any of its subsidiaries, affiliates or any other person, has made any representation, warranty or undertaking (express or implied) to it with respect to New Holdco, the Regulation S Preferences Shares or the accuracy, completeness or adequacy of any financial or other information concerning New Holdco or the Regulation S Class A Preference Shares, other than (in the case of New Holdco and its subsidiaries only) any representation, warranty or undertaking of New Holdco and its subsidiaries contained in this Explanatory Statement. Further, none of New Holdco and its subsidiaries or its affiliates, directors, officers, employees, agents, representatives or advisers makes any representation as to the future performance of New Holdco or any of its subsidiaries or affiliates or its respective securities, including the Regulation S Preferences Shares.
(p) It understands that there may be certain consequences under United States and other tax laws resulting from an investment in the Regulation S Preferences Shares and it has made such investigation and has consulted its own independent advisers or otherwise has satisfied itself concerning, without limitation, the effects of the United States federal, state and local income tax laws and foreign tax laws generally and the U.S. Employee Retirement Income Security Act of 1974, as amended, the U.S. Investment Company Act of 1940, as amended, and the Securities Act.
(q) It (and each other qualified institutional buyer, if any, for whose account it is receiving the Regulation S Preferences Shares), understands that an investment in the Regulation S Class A Preference Shares involves a high degree of risk, and no guarantees or representations have been made or can be made with respect to the future value of the Regulation S Class A Preference Shares or the future profitability or success of the Issuer and its Subsidiaries.
(r) It satisfies any and all standards for investors making an investment in the Regulation S Preferences Shares imposed by the jurisdiction of its residence or otherwise.
(s) It is empowered, authorised and qualified to receive the Regulation S Preferences Shares.
(t) It understands that the foregoing representations, warranties and agreements are required in connection with United States securities laws and that New Holdco 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 the Regulation S Preferences Shares are no longer accurate, it will promptly, and in any event prior to the issuance of the Regulation S Preferences Shares to it, notify New Holdco and the Company in writing.
(u) If it is receiving the Regulation S Preferences Shares for the account of another person, it represents that it has full power and authorisation to make the foregoing acknowledgements, representations and agreements on behalf of each such account.
(v) It acknowledges that New Holdco may request from it and/or any account for which it is acting (if any) such additional information as New Holdco may deem necessary to evaluate its eligibility or the eligibility of any account for which it is acting to acquire the Regulation S Preferences Shares, and may request from time to time such information as New Holdco may reasonably deem necessary to determine its eligibility or eligibility of any account for which it is acting to hold the Regulation S Preferences Shares or to enable the issuer to comply with applicable regulatory requirements or tax law, and it and each account for which it is acting (if any) shall use reasonable efforts to provide such information as may reasonably be requested; provided that in no event shall any purchaser be obliged to disclose the name (or any other identifying information) of its limited partners, members or shareholders.
6 Other Jurisdictions
Each Relevant Person (and any person acting on its behalf):
(a) represents and warrants that, if it is outside the United States, it has read the Explanatory Statement in its entirety; and
(b) if it is in the United Kingdom, represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Criminal Justice Act 1993, the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and, if it is making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the regulations.
PART B: OTHER SECURITIES LAW CONSIDERATIONS
7 European Economic Area (EEA)
The Rule 144A New 1L Notes, the Regulation 144A New 2L Notes, the Regulation S New 1L Notes, and the Regulation S New 2L Notes are not being made available to and should not be made available to any retail investor in the EEA. For these purposes, a “retail investor” means a person who is one (or more) of: (i) a “retail client” as defined in point (11) of Article 4(1) of MiFID II; or (ii) a customer within the meaning of the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II. Consequently no key information document required by Regulation (EU) No 1286/2014 (as amended, the “PRIIPs Regulation”) for offering or selling the Regulation 144A New 2L Notes, the Regulation S New 1L Notes, and the Regulation S New 2L Notes or otherwise making them available to retail investors in the EEA will be prepared and therefore offering or selling the Rule 144A New SSNs and the Regulation S New SSNs or otherwise making them available to any retail investor in the EEA may be unlawful under the PRIIPs Regulation.
8 Switzerland
The Rule 144A New 1L Notes, the Regulation 144A New 2L Notes, the Regulation S New 1L Notes, and the Regulation S New 2L Notes are not intended to be offered, sold or otherwise made available to and should not be offered, sold or otherwise made available to any retail investor in Switzerland. For these purposes, a retail investor means a person who is not a professional client or an institutional client each as defined in the Swiss Financial Services Act (“FINSA”). Consequently, no key information document required by FINSA for offering or selling the Rule 144A New 1L Notes, the Regulation 144A New 2L Notes, the Regulation S New 1L Notes, and the Regulation S New 2L Notes has been prepared and therefore offering or selling the Rule 144A New 1L Notes, the Regulation 144A New 2L Notes, the Regulation S New 1L Notes, and the Regulation S New 2L Notes or otherwise making them available to any retail investor in Switzerland may be unlawful under FINSA.
9 General
9.1 The implications of the Scheme for Scheme Creditors who are resident in, have a registered address in or are citizens of and/or are taxable in jurisdictions other than the United Kingdom may be affected by the laws of the relevant jurisdiction. Such overseas Scheme Creditors should inform themselves about and observe any applicable legal requirements. Any person outside the United Kingdom who is resident in, or who has a registered address in, or is a citizen of and/or is taxable in, an overseas jurisdiction and who is to receive or subscribe for any Scheme Creditor Entitlements should consult his or her professional advisers and satisfy himself or herself as to the full observance of the laws of the relevant jurisdiction in connection with the Scheme, including obtaining any requisite governmental or other consents, observing any other requisite formalities and paying any issue, transfer or other taxes due in such jurisdiction.
9.2 In the absence of bad faith, none of the Company, New Holdco, the Parent, the Existing SSN Trustees, the New SSN Trustee, the Existing Security Agent, the Information Agent or any person appointed to distribute the Scheme Creditor Entitlements shall have any Liability for any loss or damage arising as a result of the timing or terms of such a sale or as a result of any remittance made pursuant to such distribution.
10 Non-Eligible Persons
Without limiting the information set out in the “Important Securities Law Notice” section of the Explanatory Statement, the New 1L Notes, the New 2L Notes and the Class A Preference Shares will not be issued to a Scheme Creditor (or if appointed, its Nominated Recipient) pursuant to the Scheme on the Restructuring Effective Date where such a Scheme Creditor (or its Nominated Recipient) is not an Eligible Person.
11 Scheme Creditor Entitlements under the Scheme
11.1 Each Scheme Creditor and/or its Nominated Recipient(s) shall be entitled to receive its Scheme Creditor Entitlements on the Restructuring Effective Date in accordance with the provisions of the Scheme, save that such Scheme Creditor Entitlements may be withheld from being distributed to a Scheme Creditor (or its Nominated Recipient(s)) on the Restructuring Effective Date if the Information Agent does not receive a validly completed Account Holder Letter from that Scheme Creditor and all of the information, representations, confirmations and any other documentation required to be provided therein.