EXECUTION VERSION
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MOTION BONDCO DAC
$410,000,000 6.625% Senior Notes due 2027
€370,000,000 4.500% Senior Notes due 2027
Purchase Agreement
October 16, 2019
To each of the several euro initial purchasers named in
Part A of Schedule I hereto (the “Euro Initial Purchasers”)
and each of the several U.S. dollar initial purchasers named in
Part B of Schedule I hereto (the “Dollar Initial Purchasers”
and, together with the Euro Initial Purchasers, the “Initial Purchasers”)
Ladies and Gentlemen:
Motion Bondco DAC, a designated activity company incorporated under the laws of
Ireland (the “Issuer”), proposes to issue and sell (the “Offering”) (i) to the Euro Initial
Purchasers, for whom Deutsche Bank AG, London Branch and Merrill Lynch International are
acting as euro representatives (the “Euro Representatives”), €370 million in aggregate principal
amount of its 4.500% Senior Notes due 2027 (the “Euro Notes”) and (ii) to the Dollar Initial
Purchasers, for whom Deutsche Bank AG, London Branch is acting as dollar representative
(the “Dollar Representative” and, together with the Euro Representatives, the
“Representatives”), $410 million in aggregate principal amount of its 6.625% Senior Notes due
2027 (the “Dollar Notes” and, together with the Euro Notes, the “Notes”).
The Notes will be issued pursuant to the provisions of an indenture to be dated on or
about November 4, 2019 (the “Indenture”), among, inter alios, the Issuer, the Issue Date
Guarantors (as defined below), Deutsche Bank Trust Company Americas, as Dollar paying
agent, Deutsche Bank AG, London Branch, as Euro paying agent, Deutsche Bank Trust
Company Americas, as registrar and transfer Agent and Deutsche Trustee Company Limited,
as trustee (the “Trustee”).
The Notes are being offered in connection with the proposed acquisition by Motion
Acquisition Limited (“Bidco”) pursuant to a recommended cash offer of the entire issued and
to be issued share capital of Merlin Entertainments plc (the “Target” and, together with its
subsidiaries, the “Target Group”) (other than the shares in the Target owned or controlled by
KIRKBI Invest A/S and its subsidiary undertakings (collectively, “KIRKBI”)) (the
“Acquisition” and the date on which the Acquisition is consummated, the “Acquisition
Completion Date”). Bidco is a newly incorporated company, controlled by, KIRKBI, any
investment fund, co-investment vehicles and/or other similar vehicles or accounts, in each case,
managed or advised by The Blackstone Group Inc., Blackstone Core Equity Advisors L.L.C.
or one or more of their affiliates, or any of their respective successors (collectively,
“Blackstone”) and Canada Pension Plan Investment Board and/or its affiliates (“CPPIB” and
together with Blackstone and KIRKBI, the “Consortium”). Bidco will fund the purchase price
for the Acquisition with a combination of (i) drawings under the Senior Facilities (as defined
below), (ii) equity contributions and/or shareholder loans from the Consortium (the “Equity
Contribution”); and (iii) the proceeds of the Notes.
Pending consummation of the Acquisition, the Initial Purchasers will, concurrently with
the issuance of the Notes on the Closing Date (as defined below), deposit the gross proceeds
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from the offering of the Dollar Notes into a dollar-denominated escrow account (the “Dollar
Escrow Account”) and the gross proceeds from the offering of the Euro Notes into a euro-
denominated escrow account (the “Euro Escrow Account” and together with the Dollar Escrow
Account, the “Escrow Accounts”). Each Escrow Account will be a segregated escrow account
held in the name of the Issuer but controlled by the applicable Escrow Agent (as defined
below), and pledged on a first-priority basis in favor of the Trustee on behalf of the holders of
the applicable series of Notes. The Escrow Accounts will be governed by an agreement to be
dated on or about the Closing Date (the “Escrow Agreement”) among the Issuer, the Trustee
and Deutsche Bank AG, London Branch, as escrow agent for the Euro Escrow Account (the
“Euro Escrow Agent”) and Deutsche Bank AG, London Branch, as escrow agent for the Dollar
Escrow Account (the “Dollar Escrow Agent”, together with the Euro Escrow Agent, the
“Escrow Agents”). The initial funds deposited in the Escrow Accounts, and all other funds,
securities, interest, dividends, distributions and other property and payments credited to the
Escrow Accounts (less any property and/or funds paid in accordance with the Escrow
Agreement) (the “Escrowed Property”) will be pledged on a first-priority basis in favor of the
Trustee on behalf of the holders of the Notes pursuant to account charges to be dated on or
about the Closing Date among the Issuer and the Trustee (each an “Escrow Charge”). The
release of the escrow proceeds will be subject to the satisfaction of certain conditions set forth
in the Escrow Agreement, including that the funds required to pay the consideration for the
Acquisition will be required promptly (and in any event within two Business Days) and the
conditions precedent under the Senior Facilities Agreement (as defined below) shall have been
satisfied or waived in all material respects. If the conditions to the release of the Escrowed
Property have not been satisfied on or prior to March 31, 2020 (the “Escrow Longstop Date”)
or upon the occurrence of certain other events, the Notes will be subject to a special mandatory
redemption (the “Special Mandatory Redemption”). The special mandatory redemption price
of the Notes will be equal to 100% of the initial issue price of the Notes, plus accrued and
unpaid interest and additional amounts, if any, from the Closing Date to, but excluding the date
of such Special Mandatory Redemption. Midco (as defined below) will commit, pursuant to an
escrow equity commitment to be delivered to the Issuer on or prior to the Closing Date, to
contribute an amount in cash that will provide the Issuer with the amounts required to effect a
Special Mandatory Redemption of the Notes, including the accrued and unpaid interest and
additional amounts, if any, payable to holders of the Notes from the Closing Date to, but
excluding, the date of such Special Mandatory Redemption (the “Escrow Equity
Commitment”).
On or about the date upon which the proceeds from the Offering are released from the
Escrow Accounts to the Issuer (or its designee) upon the satisfaction of certain conditions
described in the Escrow Agreements (the “Escrow Release Date”), the proceeds of the Offering
will be on-lent by the Issuer to Motion Midco Limited (formerly Berkeley Midco Limited)
(“Midco”) for further distribution to Bidco for use, together with amounts drawn under the
Senior Facilities and the Equity Contribution, to (i) acquire 100% of the share capital of the
Target (other than the shares of the Target owned or controlled by KIRKBI, which will be
transferred to Bidco upon the Acquisition becoming effective), (ii) refinance certain existing
net indebtedness of the Target (excluding the Target’s Senior Notes due 2026, for which the
Target has obtained the noteholders’ consent to amend the Existing 2026 Indenture with the
effect that the Acquisition would not result in a change of control repurchase event as defined
thereunder), (iii) fund cash to the balance sheet of the Target and (iv) pay the related fees and
expenses incurred in connection with the transactions.
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On the Closing Date (as defined below), the Notes will be guaranteed (i) (x) on a senior
basis by Midco (the “Parent Guarantor”) (the “Parent Guarantee”) and (y) on a senior
subordinated basis by Bidco, Motion Finco S.à r.l. (formerly known as Berkeley Finco S.à r.l.),
a private limited liability company (société à responsabilité limitée), having its registered office
at 2-4, rue Eugène Ruppert, L-2453 Luxembourg, Grand Duchy of Luxembourg and registered
with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under
number B 234977 (“Lux Finco”), Motion Finco 2 S.à r.l. (formerly known as Berkeley Finco
2 S.à r.l.), a private limited liability company (société à responsabilité limitée), having its
registered office at 2-4, rue Eugène Ruppert, L-2453 Luxembourg, Grand Duchy of
Luxembourg and registered with the Luxembourg Register of Commerce and Companies
(R.C.S. Luxembourg) under number B 235038 (“Lux Finco 2”) and Motion Finco, LLC (“US
Co-Borrower”) (collectively, the “Issue Date Subsidiary Guarantors” and together with the
Parent Guarantor, the “Issue Date Guarantors”) (the “Issue Date Subsidiary Guarantees” and
together with the Parent Guarantee, the “Issue Date Guarantees”) and (ii) subject to the Agreed
Security Principles (as defined in the Senior Facilities Agreement), within 120 days from the
Acquisition Completion Date, and substantially simultaneously with the guarantees granted in
favor of obligations under the Senior Facilities Agreement (as defined below), by the
guarantors listed in Schedule II hereto (collectively, the “Post-Completion Guarantors” and
together with the Issue Date Guarantors, the “Guarantors”) (the “Post-Completion Guarantees”
and together with the Issue Date Guarantees, the “Guarantees”). The Guarantees together with
the Notes are hereinafter referred to as the “Securities”.
Each Post-Completion Guarantor will (i) execute and deliver to the Initial Purchasers
an accession agreement to this Agreement, substantially in the form of Annex C hereto as such
accession agreement may be amended to observe applicable execution formalities (an
“Accession Agreement”), to become a party hereto as provided in Section 25 hereof, (ii) enter
into one or more supplemental indentures with the Trustee (each, a “Supplemental Indenture”),
pursuant to which the Post-Completion Guarantors will guarantee the obligations of the Issuer
under the Notes and the Indenture on a senior subordinated basis, and (iii) accede to the
Intercreditor Agreement (as defined below), by executing and delivering an Intercreditor
Accession Deed (as defined below). The date on which each Accession Agreement,
Supplemental Indenture and Intercreditor Accession Deed is executed shall be an “Accession
Date”. Upon the accession of each Post-Completion Guarantor to this Agreement, the term
“Guarantors” used herein shall include such Post-Completion Guarantor and, upon the
execution of each Supplemental Indenture, the term “Guarantees” used herein shall include the
applicable Post-Completion Guarantees granted thereunder.
On the Closing Date, to secure the obligations under the Indenture, the Notes and the
Guarantees, as granted from time to time, the Issuer, among others, will enter into the security
documents, including the Escrow Charge, set forth in Schedule III hereto (each, a “Security
Document”) providing the collateral set forth therein (the “Collateral”). Upon the release of
the Escrowed Property on the Escrow Release Date, the Escrow Charge will be released.
In connection with the Acquisition, Bidco proposes to enter into a new senior secured
credit facilities agreement (the “Senior Facilities Agreement”), dated on or about the Closing
Date, amongst, inter alios, Bidco, as the company, Bank of America Merrill Lynch
International Designated Activity Company, Bank of America N.A., London Branch, Deutsche
Bank AG, London Branch, Barclays Bank PLC, HSBC Bank plc, Mizuho Bank, Ltd. and
UniCredit Bank AG, London Branch as arrangers and bookrunners and Bank of America
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Merrill Lynch International Designated Activity Company as agent and Deutsche Bank AG,
London Branch as security agent (the “Security Agent”). The Senior Facilities Agreement
provides for term loan facilities in an aggregate principal amount of £2,177 (equivalent) million
and a revolving credit facility in an initial principal amount of £400 million (the “Senior
Facilities”). Each of the Indenture, the Securities and the Security Documents will be subject
to certain restrictions provided in an intercreditor agreement entered into by and among, inter
alios, the Issuer, Bidco, Lux Finco, Lux Finco 2, the Trustee, the Security Agent, the facility
agent and the security agent under the Senior Facilities Agreement and certain lenders and
arrangers under the Senior Facilities Agreement (the “Intercreditor Agreement”). The Post-
Completion Guarantors will enter into one or more accession deeds (each, an “Intercreditor
Accession Deed”) to accede to the Intercreditor Agreement before, or concurrently with, their
accession to this Agreement and their execution of the Supplemental Indentures.
This Agreement, each Accession Agreement, the Indenture, each Supplemental
Indenture, the Securities, the Security Documents, the Escrow Agreement, the Escrow Equity
Commitment, the Intercreditor Agreement and each Intercreditor Accession Deed are
hereinafter collectively referred to as the “Transaction Documents”.
The sale of the Securities to the Initial Purchasers will be made without registration of
the Notes under the U.S. Securities Act of 1933, as amended (the “Securities Act”), in reliance
upon exemptions therefrom.
In connection with the sale of the Notes, the Issuer has prepared a preliminary offering
memorandum dated October 7, 2019 (the “Preliminary Offering Memorandum”), and will
prepare an offering memorandum dated the date hereof (the “Offering Memorandum”) setting
forth information concerning the Issuer, the Target Group, the Notes and the Guarantees.
Copies of the Preliminary Offering Memorandum have been, and copies of the Offering
Memorandum will be, delivered by the Issuer to the Initial Purchasers pursuant to the terms of
this Purchase Agreement (the “Agreement”). The Issuer and the Issue Date Guarantors hereby
confirm that they have authorized the use of the Preliminary Offering Memorandum, the other
Time of Sale Information (as defined below) and the Offering Memorandum in connection
with the offering and resale of the Notes by the Initial Purchasers in the manner contemplated
by this Agreement.
At or prior to the time when sales of the Notes were first made (the “Time of Sale”),
the following information shall have been prepared (collectively, the “Time of Sale
Information”): the Preliminary Offering Memorandum, as supplemented and amended by
(i) the written communications listed in Annex A hereto; and (ii) the pricing term sheet and
any applicable amendment or supplement to the Preliminary Offering Memorandum included
in Annex B hereto.
Capitalized terms used but not defined herein shall have the meanings given to them in
the Offering Memorandum.
The Issuer and each of the Issue Date Guarantors as of the date hereof, and each of the
Post-Completion Guarantors, upon accession to this Agreement, jointly and severally, hereby
agrees with the several Initial Purchasers concerning the purchase and resale of the Notes, as
follows:
1. Purchase and Resale of the Notes.
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(a) On the basis of the representations, warranties and agreements set forth herein
and subject to the conditions set forth herein, the Issuer agrees (i) to issue and sell to each Euro
Initial Purchaser, severally and not jointly, and each Euro Initial Purchaser, upon the basis of
the representations, warranties and agreements set forth herein and subject to the conditions set
forth herein, agrees to purchase, severally and not jointly, the aggregate principal amount of
Euro Notes from the Issuer as set forth opposite such Euro Initial Purchaser’s name in Part A
of Schedule I hereto at a price equal to 100.00% of the principal amount of the Euro Notes, less
an initial purchasers’ discount equal in the aggregate to 2.00% of the gross proceeds of the
offering of the Euro Notes (which shall be applied to each Euro Initial Purchaser according to
the percentage of such Euro Initial Purchaser’s allocation out of the total in Part A of Schedule I
hereto), and (ii) to issue and sell to each Dollar Initial Purchaser, severally and not jointly, and
each Dollar Initial Purchaser, upon the basis of the representations, warranties and agreements
set forth herein and subject to the conditions set forth herein, agrees to purchase, severally and
not jointly, the aggregate principal amount of Dollar Notes from the Issuer as set forth opposite
such Dollar Initial Purchaser’s name in Part B of Schedule I hereto at a price equal to 100.00%
of the principal amount of the Dollar Notes, less an initial purchasers’ discount equal in the
aggregate to 2.00% of the gross proceeds of the offering of the Dollar Notes (which shall be
applied to each Dollar Initial Purchaser according to the percentage of such Dollar Initial
Purchaser’s allocation out of the total in Part B of Schedule I hereto). The Issuer will not be
obligated to deliver the Notes except upon payment for all the Notes to be purchased as
provided herein.
(b) The Issuer and the Guarantors understand that the Initial Purchasers intend to
offer the Notes for resale upon the terms set forth in the Time of Sale Information. Each Initial
Purchaser, severally and not jointly, hereby makes to the Issuer the following representations
and agreements:
(i) it is an “accredited investor” within the meaning of Rule 501(a) of
Regulation D under the Securities Act (“Regulation D”); and
(ii) (A) it will not solicit offers for, or offer to sell, the Notes by any form of
general solicitation or general advertising (as those terms are used in Rule 502(c) of
Regulation D) or in any manner involving a public offering within the meaning of
Section 4(a)(2) of the Securities Act; and (B), as part of the initial offering, it will solicit
offers for the Notes only from, and will offer the Notes only to, persons whom it
reasonably believes to be, (x) in the case of offers of the Notes inside the United States,
“qualified institutional buyers” within the meaning of Rule 144A under the Securities
Act, and (y) in the case of offers of the Notes outside the United States, persons other
than U.S. persons (as defined in Rule 902 under the Securities Act) that, in each case,
in purchasing the Notes are deemed to have represented and agreed as provided in the
Offering Memorandum.
With respect to offers and sales outside the United States, as described in
Section 1(b)(ii)(B)(y) above, each Initial Purchaser, severally and not jointly, hereby represents
and agrees with the Issuer and the Guarantors that:
(iii) it will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Notes or has in its possession
or distributes the Offering Memorandum;
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(iv) it understands that the Notes have not been and will not be registered
under the Securities Act, and may not be offered and sold within the United States or
to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the commencement of the offering
of the Notes and the date of original issuance of the Notes, except in either case in
accordance with Regulation S under the Securities Act (“Regulation S”) or Rule 144A
or any other available exemption from registration under the Securities Act;
(v) it has not offered the Notes and will not offer and sell the Notes (a) as
part of its distribution at any time and (b) otherwise prior to 40 days after the later of
the commencement of the offering and the Closing Date, in either case except in
accordance with Rule 903 of Regulation S (or Rule 144A, if available). Accordingly,
neither such Initial Purchaser, nor any of its affiliates, nor any persons acting on its
behalf has engaged or will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Notes, and such Initial Purchaser, its affiliates and any
such persons have complied and will comply with the offering restrictions requirement
of Regulation S; and
(vi) it agrees that, at or prior to confirmation of sales of the Notes sold in
reliance on Regulation S, it will have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases Notes from it during the
restricted period a confirmation or notice to substantially the following effect:
“The Notes covered hereby have not been registered under the U.S. Securities Act of
1933, as amended (the “Securities Act”), and may not be offered and sold within the
United States or to, or for the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the later of the
commencement of the offering of the Notes and the date of original issuance of the
Notes, except in either case in accordance with Regulation S or Rule 144A or any other
available exemption from registration under the Securities Act. Terms used above have
the meanings given to them by Regulation S.”
Terms used in this Section 1(b) and not otherwise defined in this Agreement have the
meanings given to them by Regulation S.
(c) Each Initial Purchaser acknowledges and agrees that the Issuer and the
Guarantors and, for the purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Sections 5(e), 5(f), 5(g), 5(h), 5(j), (5)(k) and 5(l), counsel for the Issuer and the
Guarantors and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of
the representations and warranties of the Initial Purchasers, and compliance by the Initial
Purchasers with their agreements, contained in paragraph (b) above, and each Initial Purchaser
hereby consents to such reliance.
(d) The Issuer and the Guarantors acknowledge and agree that the Initial Purchasers
may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such
affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser;
provided that such offers and sales shall be made in accordance with the provisions of this
Agreement.
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(e) Each of the Issuer and the Guarantors acknowledges and agrees that each
Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to
each of the Issuer and the Guarantors with respect to the offering of Securities contemplated
hereby (including in connection with determining the terms of the offering) and not as a
financial advisor or fiduciary to, or agent (except as otherwise provided for in the solicitation
agency agreement dated September 11, 2019, entered into in connection with the solicitation
of consents from noteholders of the Target’s Senior Notes due 2026) of, the Issuer, the
Guarantors or any of their respective affiliates. Additionally, the Initial Purchasers are not
advising the Issuer, the Guarantors or any of their respective subsidiaries or any other person
as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer
and the Guarantors shall consult with their own advisors concerning such matters and shall be
responsible for making their own independent investigation and appraisal of the transactions
contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the
Issuer or the Guarantors with respect thereto. Any review by an Initial Purchaser of the Issuer,
the Guarantors or any of their respective subsidiaries and the transactions contemplated hereby
or other matters relating to such transactions will be performed solely for the benefit of such
Initial Purchaser and shall not be on behalf of the Issuer, the Guarantors or any of their
respective subsidiaries or any other person. Furthermore, the Initial Purchasers may have
interests that differ from those of the Issuer, the Guarantors or any of their respective
subsidiaries. Each of the Issuer and the Guarantors hereby waives, to the fullest extent
permitted by law, any claims it may have based on any actual or potential conflicts of interest
that may arise or result from any Initial Purchaser’s engagement, the transactions contemplated
hereby or any claims it may have against such Initial Purchaser for breach of fiduciary duty or
alleged breach of fiduciary duty, and agrees that no Initial Purchaser shall have any liability
(whether direct or indirect) to the Issuer, any Guarantor or any other person in respect of such
a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right
of the Issuer or any Guarantor, including any of the Issuer’s or any Guarantor’s respective
employees or creditors.
(f) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees
that:
(i) 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 the Financial Services and
Markets Act 2000, including any supplements and amendments thereto (the “FSMA”))
received by it in connection with the issue or sale of any Notes in circumstances in
which Section 21(1) of the FSMA does not apply to the Issuer or the Guarantors;
(ii) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom; and
(iii) in relation to each Member State of the European Economic Area (each,
a “Member State”), it has not made and will not make an offer to the public of any
Notes in any Member State, unless these offers are made to any legal entity which is a
qualified investor as defined in the Prospectus Regulation and a non-retail investor as
defined in the PRIIPs Regulation. For the purposes of this provision, the expression an
“offer to the public” in relation to any securities in any Member State means the
communication in any form and by any means of sufficient information on the terms of
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the offer and any securities to be offered so as to enable an investor to decide to
purchase any securities, and the expression “Prospectus Regulation” means Regulation
(EU) 2017/1129, and the expression “PRIIPs Regulation” means Regulation (EU)
1286/2014 (as amended), and includes any relevant implementing measure in the
Member State.
2. Payment and Delivery.
(a) The closing of the purchase of the Notes by the several Initial Purchasers will
occur at the offices of Latham & Watkins (London) LLP, 99 Bishopsgate, London EC2M 3XF,
at 9:00 A.M., London time on November 4, 2019, or at such other time or place on the same
or such other date, as the Representatives and the Issuer may agree upon in writing. The time
and date of such payment and delivery is referred to herein as the “Closing Date.”
(b) The Euro Notes sold within the United States to “qualified institutional buyers”
within the meaning of Rule 144A under the Securities Act in reliance on Rule 144A under the
Securities Act will be represented by one or more global notes in registered form without
interest coupons attached (the “144A Global Euro Note”). The Euro Notes sold to non-U.S.
persons outside the United States in reliance on Regulation S will be represented by one or
more global notes in registered form without interest coupons attached (the “Regulation S
Global Euro Note” and, together with the 144A Global Euro Notes, the “Global Euro Notes”).
The Dollar Notes sold within the United States to “qualified institutional buyers” within the
meaning of Rule 144A under the Securities Act in reliance on Rule 144A under the Securities
Act will be represented by one or more global notes in registered form without interest coupons
attached (the “144A Global Dollar Note”). The Dollar Notes sold to non-U.S. persons outside
the United States in reliance on Regulation S will be represented by one or more global notes
in registered form without interest coupons attached (the “Regulation S Global Dollar Note”
and, together with the 144A Global Dollar Notes, the “Global Dollar Notes”). The Global Euro
Notes and the Global Dollar Notes are collectively referred to herein as the “Global Notes”.
The Global Notes shall be made available for examination by the Initial Purchasers at the
offices of Latham & Watkins (London) LLP, 99 Bishopsgate, London EC2M 3XF on the
Business Day prior to the Closing Date.
(c) Payment for the Dollar Notes shall be made by wire transfer from the Dollar
Representative on behalf of the Dollar Initial Purchasers in immediately available funds in
dollars, to the Dollar Escrow Account. Payment for the Euro Notes shall be made by wire
transfer from the Euro Representatives on behalf of the Euro Initial Purchasers in immediately
available funds in euro, to the Euro Escrow Account. On the Escrow Release Date, in
accordance with the Escrow Agreement, the Escrow Agent shall release the amounts in each
Escrow Account in the following order of priority: in payment of the Dollar Fees and the Euro
Fees (each as defined in Schedule I hereto) to the Representatives, to be distributed among the
Initial Purchasers in proportion to the respective amounts of their commitments to purchase the
respective series of Notes set forth in Schedule I hereto, and in payment to the Issuer or to such
account as may be designated by the Issuer.
(d) The Global Dollar Notes shall be made available through the facilities of the
Depositary Trust Company (“DTC”) and the Global Euro Notes shall be made available
through the facilities of Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking,
S.A. (“Clearstream”).
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3. Representations and Warranties of the Issuer and the Guarantors. (i) The Issuer
and the Issue Date Guarantors, and insofar as the Issuer and the Issue Date Guarantors are
providing representations and warranties with respect to the Target, the Target Group and/or
the Post-Completion Guarantors, to the knowledge of the Issuer and the Issue Date Guarantors
after due inquiry, and (ii) the Target and each other Post-Completion Guarantor upon its
accession to this Agreement pursuant to Section 25 hereof, in each case jointly and severally
represent and warrant to and agree with each Initial Purchaser as of the date hereof and as of
the Closing Date (unless another time is expressly specified below), as set forth below:
(a) The Preliminary Offering Memorandum, as of its date, did not, the Time of Sale
Information, at the Time of Sale, did not, and at the Closing Date, will not, and the Offering
Memorandum, as of its date and as of the Closing Date, will not, contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Issuer and the Guarantors make no representation or
warranty with respect to any statements or omissions made in reliance upon and in conformity
with information relating to any Initial Purchaser furnished to the Issuer in writing by or on
behalf of such Initial Purchaser through the Representatives expressly for use in the Preliminary
Offering Memorandum, the Time of Sale Information or the Offering Memorandum (which
information consists solely of the information described in Section 13(a) hereof).
(b) The Issuer and the Guarantors (including their agents and representatives, other
than the Initial Purchasers, as to whom the Issuer and the Guarantors make no representation)
have not prepared, made, used, authorized, approved or referred to and will not prepare, make,
use, authorize, approve or refer to any written communication that constitutes an offer to sell
or a solicitation of an offer to buy the Securities (each such communication by the Issuer, the
Guarantors or their agents and representatives (other than a communication referred to in
clauses (i), (ii) and (iii) below), an “Issuer Written Communication”) other than (i) the
Preliminary Offering Memorandum, (ii) the Offering Memorandum, (iii) the other Time of
Sale Information, and (iv) any other written communication (including, without limitation, any
written communication used in connection with any road show or electronic road show), in
each case used in accordance with Section 4(d) hereof.
(c) When taken together with the Time of Sale Information, each Issuer Written
Communication did not, and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that
the Issuer and the Guarantors make no representation and warranty with respect to any
statements or omissions made in each such Issuer Written Communication in reliance upon and
in conformity with information relating to any Initial Purchaser furnished to the Issuer or the
Guarantors in writing by or on behalf of such Initial Purchaser through the Representatives
expressly for use in any Issuer Written Communication (which information consists solely of
the information described in Section 13(a) hereof).
(d) Since the date of the most recent consolidated financial statements of the Target
Group included in each of the Time of Sale Information and the Offering Memorandum, in the
case of the Target and the other Post-Completion Guarantors, and since their respective dates
of incorporation, in the case of the Issuer and the Issue Date Guarantors, there has not been any
material adverse change, or any development which would reasonably be expected to result in
a material adverse change, in or affecting the business, senior management, financial position,
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shareholders’ equity, results of operations or prospects of the Issuer or the Issue Date
Guarantors or the Target Group, taken as a whole (a “Material Adverse Effect”), except in each
case as otherwise disclosed in each of the Time of Sale Information and the Offering
Memorandum.
(e) The industry, statistical and market-related data included in the Time of Sale
Information and the Offering Memorandum are based on or derived from sources (including
those described in each of the Time of Sale Information and the Offering Memorandum under
the heading “Industry Overview—Competitive Landscape”) which the Issuer and the
Guarantors believe to be reliable and accurate in all material respects.
(f) Each of the Issuer and the Issue Date Guarantors has been duly incorporated or
organized, as the case may be, and is validly existing under the laws of its respective
jurisdiction of organization, with power and authority (corporate and other) to own, lease and
operate its properties and conduct its business as described in each of the Time of Sale
Information and the Offering Memorandum, and has been duly qualified and, if applicable, is
in good standing, under the laws of each other jurisdiction in which it owns, leases or operates
properties or conducts any business, other than where the failure to be so qualified or in good
standing would not reasonably be expected to have a Material Adverse Effect.
(g) The Target has been duly incorporated and is validly existing as a public limited
company under the laws of England and Wales, with registration number 08700412, and with
power and authority to own, lease and operate its properties and conduct its business as
described in each of the Time of Sale Information and the Offering Memorandum, and has
been duly qualified and, if applicable, is in good standing, under the laws of each other
jurisdiction in which it owns, leases or operates properties or conducts any business, other than
where the failure to be so qualified or in good standing would not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(h) Each of the Issuer and the Guarantors has been duly incorporated or organized,
as the case may be, and is validly existing under the laws of its jurisdiction of organization,
with power and authority (corporate and other) to own, lease and operate its properties and
conduct its business as described in each of the Time of Sale Information and the Offering
Memorandum, and has been duly qualified and, if applicable, is in good standing, under the
laws of each other jurisdiction in which it owns, leases or operates properties or conducts any
business, so as to require such qualification, other than where the failure to be so qualified or
in good standing would not reasonably be expected to have a Material Adverse Effect. None
of the Issuer, the Issue Date Guarantors, or any entity within the Target Group is in bankruptcy,
liquidation or receivership or examinership or subject to any similar proceeding, other than,
with respect to any subsidiary, proceedings which would not reasonably be expected to have a
Material Adverse Effect.
(i) Each of the Issuer and the Target has an authorized capitalization as set forth in
the Time of Sale Information and the Offering Memorandum under the heading
“Capitalisation”; the outstanding share capital of each of the Issuer, the Guarantors and the
Target has been duly authorized and is validly issued, fully paid and non-assessable; and the
outstanding share capital or other equity interests held by each of the Issuer, the Guarantors
and the Target and their wholly-owned subsidiaries, in each case, is duly authorized, validly
issued, fully-paid and non-assessable, and except for any directors’ qualifying shares and
except as disclosed in each of the Time of Sale Information and the Offering Memorandum, is
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owned by the Issuer or the Guarantors, as applicable, directly or indirectly, free and clear of all
material liens, encumbrances, security interests, charges, restrictions on voting or transfer and
claims other than liens, encumbrances, security interests, charges, restrictions on voting or
transfer and claims created pursuant to or permitted by the indebtedness disclosed in each of
the Time of Sale Information and the Offering Memorandum under the headings “Description
of Certain Financing Arrangements” or “Capitalisation.”
(j) This Agreement has been duly authorized, executed and delivered by the Issuer
and each of the Issue Date Guarantors and constitutes a legal, valid and binding instrument
enforceable against the Issuer and each of the Issue Date Guarantors in accordance with its
terms subject, as to enforcement, to bankruptcy, fraudulent conveyance, insolvency,
examinership, reorganization, moratorium, financial assistance and other laws of general
applicability relating to or affecting creditors’ rights and to general equity principles (whether
considered in a proceeding in equity or law) and the discretion of the court before which any
proceeding may be brought and except as may be limited by means of public policy related to
enforceability (collectively, the “Enforceability Exceptions”). On each Accession Date in
respect of the relevant Post-Completion Guarantor, the Accession Agreement of such Post-
Completion Guarantor will have been duly authorized, executed and delivered by such Post-
Completion Guarantor and will constitute a legal, valid and binding instrument enforceable
against such Post-Completion Guarantor in accordance with its terms, subject, as to
enforcement, to the Enforceability Exceptions.
(k) The Issuer and each of the Guarantors, as applicable, have or at each relevant
time will have full right, power and authority to execute and deliver the Transaction Documents
to which it is a party and to perform their respective obligations hereunder and thereunder; and
all action (corporate or other) required to be taken by the Issuer and each such Guarantor, as
applicable, for the due and proper authorization, execution and delivery of each of the
Transaction Documents to which it is a party and the consummation of the transactions
contemplated thereby at each relevant time will have been or has been duly and validly taken,
when duly executed and delivered in accordance with its terms by each of the other parties
thereto, and each Transaction Document, other than those explicitly addressed below in this
Section 3, will constitute a valid and binding agreement enforceable against the Issuer and the
Guarantors, in each case, as applicable in accordance with their terms, subject, as to
enforcement, to the Enforceability Exceptions.
(l) The Indenture will be duly authorized on or prior to the Closing Date by the Issuer
and each of the Issue Date Guarantors and, when duly executed and delivered in accordance
with its terms by each of the parties thereto, will constitute a valid and legally binding
agreement of the Issuer and each of the Issue Date Guarantors, enforceable against the Issuer
and each of the Issue Date Guarantors in accordance with its terms, subject, as to enforcement,
to the Enforceability Exceptions. On each Accession Date in respect of the relevant Post-
Completion Guarantor, the Supplemental Indenture in respect of such Post-Completion
Guarantor will be substantially in the form contemplated by the Indenture and will have been
duly authorized by the Issuer and such Post-Completion Guarantor and, when duly executed
and delivered in accordance with its terms by such Post-Completion Guarantor and the other
parties thereto, will constitute valid and legally binding obligations of such Post-Completion
Guarantor, enforceable against the Issuer and such Post-Completion Guarantor in accordance
with its terms, subject, as to enforcement, to the Enforceability Exceptions.
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(m) The Issue Date Guarantees will be prior to the Closing Date, duly authorized by
each of the Issue Date Guarantors and, when the Notes have been duly executed, authenticated,
issued and delivered as provided in the Indenture and paid for as provided herein, will constitute
a valid and legally binding obligation of each Issue Date Guarantor, enforceable against such
Issue Date Guarantor in accordance with its terms, subject, as to enforcement, to the
Enforceability Exceptions. On each Accession Date in respect of the relevant Post-Completion
Guarantor, the Post-Completion Guarantees of such Post-Completion Guarantor will have been
duly authorized by such Post-Completion Guarantor and, upon due execution and delivery of
the relevant Supplemental Indenture, will constitute valid and legally binding obligations of
such Post-Completion Guarantor, enforceable against such Post-Completion Guarantor in
accordance with its terms, subject, as to enforcement, to the Enforceability Exceptions and
applicable limitations set forth in the Indenture, and will be entitled to the benefits of the
Indenture.
(n) On or prior to the Closing Date, the Intercreditor Agreement will have been duly
authorized by the Issuer and each Issue Date Guarantor and, when executed and delivered by
the Issuer, each Issue Date Guarantor, the Trustee and the Security Agent and the other parties
thereto, the Intercreditor Agreement will constitute valid and legally binding obligations of the
Issuer and each Issue Date Guarantor, enforceable against each of them in accordance with its
terms, subject, as to enforcement, to the Agreed Security Principles and the Enforceability
Exceptions and applicable limitations set forth in the Indenture, and will be entitled to the
benefits of the Indenture. On each Accession Date in respect of the relevant Post-Completion
Guarantor, the Intercreditor Accession Deed of such Post-Completion Guarantor will have
been duly authorized by such Post-Completion Guarantor and, when duly and validly executed
and delivered by such Post-Completion Guarantor and the other parties thereto, will constitute
valid and legally binding obligations of such Post-Completion Guarantor, enforceable against
such Post-Completion Guarantor in accordance with its terms, subject, as to enforcement, to
the Agreed Security Principles and the Enforceability Exceptions.
(o) On or prior to the Closing Date, the Escrow Agreement will have been duly
authorized by the Issuer and, when executed and delivered by each of the parties thereto, will
constitute valid and legally binding obligations of the Issuer, enforceable against the Issuer in
accordance with its terms, subject, as to enforcement, to the Enforceability Exceptions. On or
prior to the Closing Date, the Escrow Equity Commitment will have been duly authorized by
the Issuer and, when executed and delivered by each of the parties thereto, will constitute valid
and legally binding obligations of the Issuer, enforceable against the Issuer in accordance with
its terms, subject, as to enforcement, to the Enforceability Exceptions.
(p) Subject to paragraph (q) below, and subject to the limitations under the Agreed
Security Principles, as of the Closing Date, the applicable security provider under each Security
Document will have duly and validly authorized the Security Document to which it is a party
to be executed on such date, subject, as to enforcement, to the Enforceability Exceptions, the
obligations expressed to be assumed by such security provider under each Security Document
to which it is a party are legal, valid, binding and enforceable obligations of that party and each
Security Document creates the security interests which that Security Document purports to
create, and those security interests are valid and effective.
(q) Subject to the limitations under the Agreed Security Principles and as and to the
extent required by the terms of the Security Documents, all filings and other actions necessary
to perfect the security interest of the Security Agent, the Trustee and the holders of the Notes
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in the collateral to be created under the Security Documents will be duly made or taken on or
prior to the Closing Date or, in respect of any Irish law governed Security Documents, within
21 days of the Closing Date, and are or will be in full force and effect as of the date of
completion of such filings or other actions necessary to perfect such security interest, subject
to the terms of the Indenture and to the terms of the Security Documents.
(r) The Notes have been duly authorized by the Issuer and, when issued and
delivered pursuant to this Agreement and authenticated by the Trustee in accordance with the
Indenture, and when payment therefor is received, will be duly executed, authenticated, issued
and delivered and will constitute valid and binding obligations of the Issuer entitled to the
benefits provided by the Indenture, enforceable against the Issuer in accordance with their
terms, subject, as to enforcement, to the Enforceability Exceptions.
(s) None of the Issuer or the Guarantors is, or with the giving of notice or lapse of
time or both would be, in violation of or in default under, its respective memorandum and
articles of association (or the equivalent) or by-laws (or the equivalent) or any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the
Issuer or the Guarantors is a party or by which any of them or any of their respective properties
is bound (including, for the avoidance of doubt, with respect to the Guarantors, the Target’s
existing senior notes indenture dated May 9, 2018, among, inter alios, the Target, as issuer,
and Deutsche Trustee Company Limited, as trustee (the “Existing 2026 Indenture”)), except,
in the case of any indenture, mortgage, deed of trust, loan agreement or other agreement, for
violations and defaults which would not have a Material Adverse Effect.
(t) The execution, delivery and performance of the Transaction Documents, the
preparation and distribution of the Time of Sale Information and the Offering Memorandum,
the execution, delivery and issuance of the Notes (including the Guarantees), the performance
by the Issuer and each of the Guarantors of their obligations hereunder and thereunder and the
consummation of the transactions contemplated hereby and thereby will not (i) conflict with or
violate the memorandum and articles of association (or the equivalent) or bylaws (or the
equivalent) of the Issuer, the Issue Date Guarantors and the Target Group, (ii) conflict with or
constitute a violation by the Issuer, the Issue Date Guarantors or the Target Group of any
applicable provision of any law, statute or regulation, except for such conflicts or violations
which would not have a Material Adverse Effect, or (iii) breach, or result in a default under
any agreement known to the executive officers of the Issuer, the Issue Date Guarantors, or the
Target Group to be material to the Issuer and the Target Group, respectively, taken as a whole,
except for conflicts or breaches which would not have a Material Adverse Effect (including,
for the avoidance of doubt, the Existing 2026 Indenture); and no consent, approval,
authorization, order, license, registration or qualification of or with any court or governmental
agency or regulatory authority or any stock exchange or body is required for the execution,
delivery and performance by the Issuer and each of the Guarantors of their respective
obligations under each of the Transaction Documents to which each is a party, the issuance and
sale of the Notes (including the Guarantees), and compliance by the Issuer and each of the
Guarantors, as applicable, with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents to which it is a party, except for such consents,
approvals, authorizations, orders, licenses, registrations or qualifications (i) as have been
obtained on or prior to the Closing Date, (ii) are disclosed in each of the Time of Sale
Information and the Offering Memorandum, (iii) as may be required under applicable securities
laws in connection with the purchase and distribution of the Notes by the Initial Purchasers in
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accordance with the selling restrictions contained in Section 1 of this Agreement and the rules
and regulations of the Official List of The International Stock Exchange (the “Exchange”) or
(iv) the failure to obtain any such consents, approvals, authorizations, orders, licenses,
registrations and/or qualifications which would not have a Material Adverse Effect.
(u) On and immediately after the Closing Date, the fair saleable value of the
consolidated assets of the Issuer and the Guarantors exceeds the amount that will be required
to be paid on or in respect of the existing debts and liabilities (including contingent liabilities)
of the Issuer and the Guarantors as they mature; the consolidated assets of the Issuer and the
Guarantors do not, and upon the issue and sale of the Notes will not, constitute unreasonably
small capital to carry out their respective businesses as conducted or as proposed to be
conducted, including the capital needs of the Issuer and the Guarantors, and projected capital
requirements of the business conducted by the Issuer and the Guarantors, and projected capital
requirements and capital availability thereof; the Issuer and the Guarantors do not intend to,
and do not believe that they will, incur debts or liabilities beyond their respective ability to pay
such debts and liabilities as they mature; upon the issue and sale of the Notes, the fair saleable
value of the assets of the Issuer and the Guarantors taken as a whole will exceed the amount
that will be required to be paid on or in respect of the existing debts and other liabilities
(including contingent liabilities) of the Issuer and the Guarantors, taken as a whole, as they
mature; and the Issuer and the Guarantors do not intend to incur debts beyond their respective
ability to pay such debts as they mature.
(v) There are no legal or governmental investigations of which the Issuer, the
Guarantors or the Target Group has received notice or proceedings pending against the Issuer,
the Issue Date Guarantors or the Target Group or any of their respective properties which,
individually or in the aggregate, if determined adversely to the Issuer, the Issue Date Guarantors
or the Target Group, would reasonably be expected to have a Material Adverse Effect; and to
the knowledge of, after due and careful inquiry by, the Issuer and the Guarantors, no such
investigations, actions, suits or proceedings are threatened or contemplated by any legal,
governmental authorities or threatened by others that, individually or in the aggregate, if
determined adversely to the Issuer, the Issue Date Guarantors or the Target Group would
reasonably be expected to have a Material Adverse Effect; and, other than as disclosed in each
of the Time of Sale Information and the Offering Memorandum, no action, proceeding,
litigation, arbitration or administrative proceeding (including governmental inquiries, whether
informal or formal) is current or pending or, so far as the Issuer and each of the Guarantors is
aware, threatened (i) to restrain entry into, exercise of its rights under and/or performance or
enforcement of or compliance with its obligations in connection with the Offering or (ii) which
would or might directly or indirectly restrict, prohibit, delay or otherwise adversely interfere
with the implementation of, or impose additional adverse conditions or obligations with respect
to, or otherwise challenge or hinder, the Offering.
(w) Other than as disclosed in each of the Time of Sale Information and the Offering
Memorandum, there are no court and administrative orders, writs, judgments and decrees
specifically directed to (i) the Issuer or the Guarantors, (ii) to the knowledge of the Issuer after
due inquiry, the Target Group; or (iii) to the Issuer’s and the Guarantors’ knowledge after due
inquiry, the Post-Completion Guarantors’ executive officers, in each case, as would be material
to the Issuer, the Guarantors or the Target Group taken as a whole.
(x) Each of the Issuer and the Guarantors have good and marketable title to, or have
valid rights to lease or otherwise use, all real property and good and marketable title to, or have
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valid rights to lease or otherwise use, all personal property that are material to the respective
businesses of the Issuer and the Guarantors, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title, except such as are described or
referred to in the Time of Sale Information and the Offering Memorandum and except those
that do not materially interfere with the use made and proposed to be made of such property by
the Issuer, the Guarantors and, to the knowledge of the Issuer after due inquiry, the Target
Group and any of their respective subsidiaries.
(y) Each of the Issuer and the Guarantors owns or possesses adequate rights to use
all patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service mark registration, copyrights, licenses, computer software and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their respective businesses
except where the failure to own or possess such right would not, individually or in the
aggregate, have a Material Adverse Effect; the conduct of their respective businesses does not
conflict in any material respect with any such rights of others; and none of the Issuer and the
Guarantors have received any notice of any claim of infringement of or conflict with any such
rights of others with respect to any of the foregoing or is aware of any facts which would form
a reasonable basis for any such conflict or claim except for any such conflict or claim that
would not, individually or in the aggregate, have a Material Adverse Effect.
(z) Each of the Issuer and the Guarantors owns, possesses or has obtained all
licenses, permits, certificates, consents, orders, approvals and other authorizations from, and
has made all declarations and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all self-regulatory organizations and all
courts and other tribunals, domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business as conducted as of the date hereof and
as of the Closing Date in each case except as disclosed in the Time of Sale Information and the
Offering Memorandum and except where such failure to own, possess or obtain necessary
licenses, permits, certificates, consents, orders, approvals or authorizations or failure to make
necessary declarations and filings would not, singly or in the aggregate, have a Material
Adverse Effect, and neither the Issuer nor the Guarantors have received any actual notice of
any proceeding relating to revocation or modification of any such license, permit, certificate,
consent, order, approval or other authorization, except as described in the Time of Sale
Information and the Offering Memorandum and except as would not have a Material Adverse
Effect; and each of the Issuer and the Guarantors is in compliance with all laws and regulations
(other than Environmental Laws (as defined herein)) relating to the conduct of its business,
except where the failure to comply would not have a Material Adverse Effect.
(aa) The Issuer and the Guarantors (i) are in compliance with any and all applicable
European Union, national, federal, state and local laws, rules, regulations, requirements,
decisions and orders relating to the protection of human health and safety, the environment,
natural resources or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”), (ii) have received and are in compliance with all
permits, licenses, certificates, or other authorizations or approvals required of them under
applicable Environmental Laws to conduct their respective businesses, (iii) are in compliance
with all terms and conditions of any such permit, license or approval, except as disclosed in
each of the Time of Sale Information and the Offering Memorandum or except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
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approvals or failure to comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a Material Adverse Effect. There is no
civil, criminal or administrative action, suit, demand, claim, hearing, notice of violation,
investigation, proceeding, notice or demand letter or request for information pending or, to the
knowledge of the Issuer, the Guarantors and, to the knowledge of the Issuer after due inquiry,
the Target Group or any of their respective Subsidiaries, threatened against the Issuer, the
Guarantors and, to the knowledge of the Issuer after due inquiry, the Post-Completion
Guarantors or any of their Subsidiaries under any Environmental Law, except as would not,
singly or in the aggregate, have a Material Adverse Effect.
(bb) In the ordinary course of its business, to the knowledge of the Issuer after due
inquiry, the Target or an affiliate thereof conducts a periodic review of the effects of
Environmental Laws on the business, operations and properties of its subsidiaries, in the course
of which it identifies and evaluates associated costs and liabilities related thereto; on the basis
of the results of such review as they have been furnished to the Issuer, the Issuer and the Issue
Date Guarantors have reasonably concluded that, except as disclosed in the Time of Sale
Information and the Offering Memorandum, such associated costs and liabilities would not,
singly or in the aggregate, have a Material Adverse Effect.
(cc) The Issuer and the Guarantors have insurance covering their respective
properties, operations, personnel and businesses, including business interruption insurance,
which insurance is in amounts and insures against such losses and risks as the Issuer’s, the
Issue Date Guarantors’ and, to the knowledge of the Issuer after due inquiry, the Post-
Completion Guarantors’ management reasonably believes are adequate to protect the Issuer,
the Issue Date Guarantors and, to the knowledge of the Issuer after due inquiry, the Post-
Completion Guarantors and their respective subsidiaries and their respective businesses, with
such exceptions as would not have a Material Adverse Effect; and none of the Issuer and the
Guarantors have (i) received notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made in order to continue
such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage at reasonable cost
from similar insurers as may be necessary to continue its business.
(dd) Except as disclosed in the Time of Sale Information and the Offering
Memorandum, neither the Issuer nor any Guarantor is prohibited, directly or indirectly, under
any agreement or other instrument to which it is a party or is subject, from paying any
dividends, from making any other distribution on such subsidiary’s capital stock, from repaying
any intercompany loans or advances or from transferring any of such subsidiary’s properties
or assets within the respective group, except pursuant to (i) the Indenture, (ii) Senior Facilities
Agreement, (iii) the Existing 2026 Indenture and (iv) applicable law.
(ee) None of the Issuer, the Issue Date Guarantors nor, to the knowledge of the Issuer
after due inquiry, the Post-Completion Guarantors nor any of their respective subsidiaries is a
party to any contract, agreement or understanding with any person (other than this Agreement)
that would give rise to a valid claim against any of them or any Initial Purchaser for a brokerage
commission, finder’s fee or like payment in connection with the offering and sale of the Notes.
(ff) When the Securities are issued and delivered pursuant to this Agreement, the
Securities will not be of the same class (within the meaning of Rule 144A under the Securities
Act) as any securities that are listed on a national securities exchange registered under Section 6
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of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”) or quoted in a
U.S. automated inter-dealer quotation system; and each of the Time of Sale Information and
the Offering Memorandum, as of its respective date, contains or will contain in all material
respects the information that, if requested by a prospective purchaser of the Securities, would
be required to be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under
the Securities Act.
(gg) None of the Issuer, the Guarantors nor, to the knowledge of the Issuer after due
inquiry, the Target or any of its affiliates (as defined in Rule 501(b) of Regulation D) has,
directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities Act) which is or will be
integrated with the sale of the Securities in a manner that would require the registration of the
Offering and sale of the Securities under the Securities Act.
(hh) The Issuer and each of the Guarantors (other than the U.S. Companies) is a
“foreign private issuer” (as such term is defined in the rules and regulations under the Securities
Act and the Exchange Act).
(ii) None of the Issuer, the Guarantors or any of their respective affiliates or any
person acting on its or their behalf (other than the Initial Purchasers and their affiliates, as to
whom no representation is made) has solicited offers for, or offered or sold any Securities by
means of any general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act or, with respect to Securities sold outside the United States to non-
U.S. persons (as defined in Rule 902 under the Securities Act), by means of any directed selling
efforts within the meaning of Rule 902 under the Securities Act and each of the Issuer, the
Guarantors and any of their respective affiliates and any person acting on its or their behalf has
complied with and will implement the “offering restrictions” requirement of Regulation S.
(jj) The Securities offered and sold in reliance on Regulation S have been and will
be offered and sold only in offshore transactions outside the United States, provided that no
representation is made as to the actions of the Initial Purchasers.
(kk) Prior to the date hereof, none of the Issuer, the Issue Date Guarantors, nor, to
the knowledge of the Issuer after due inquiry, the Post-Completion Guarantors nor any of their
respective subsidiaries and affiliates has taken, directly or indirectly, any action which is
designed to or which has constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the Issuer, the Issue Date
Guarantors, nor, to the knowledge of the Issuer after due inquiry, the Post-Completion
Guarantors or any of their respective subsidiaries and affiliates in connection with the offering
of the Notes.
(ll) None of the transactions contemplated by this Agreement (including, without
limitation, the use of the proceeds from the sale of the Notes as described in the Time of Sale
Information and the Offering Memorandum) will violate or result in a violation of Section 7 of
the Exchange Act, or any regulation promulgated thereunder, including, without limitation,
Regulations T, U, and X of the Board of Governors of the Federal Reserve System.
(mm) KPMG LLP are independent auditors with respect to the Target and its
subsidiaries within the meaning of the Ethical Standards issued by the Auditing Practices Board
in the United Kingdom.
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(nn) Each of the Issuer and the Guarantors represent and warrant that (i) the audited
consolidated historical financial statements of the Target Group (including the related notes)
included in each of the Time of Sale Information and the Offering Memorandum present fairly
in all material respects the consolidated financial position, results of operations and cash flows
of the Target and its subsidiaries as of the dates and for the periods indicated and have been
prepared in conformity with International Financial Reporting Standards as adopted by the
European Union (“IFRS”) applied on a materially consistent basis throughout the periods
involved; and (ii) the amounts presented in the financial data contained in each of the Time of
Sale Information and the Offering Memorandum under the headings “Summary—Summary
Historical Consolidated Financial and Other Data,” “Capitalisation,” “Selected Historical
Financial Information” agree with, or can be derived from the amounts included in the audited
consolidated historical financial statements of the Target and its subsidiaries.
(oo) The assumptions used in each of the Time of Sale Information and the Offering
Memorandum provide a reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the related pro forma adjustments
give appropriate effect to those assumptions and the pro forma adjustments reflect the proper
application of those adjustments to the corresponding historical financial statement amounts.
(pp) The adjustments made to the financial, operating and other key
operating data presented in the section set forth under the caption “Summary Historical
Consolidated Financial and Other Data” in each of the Time of Sale Information and the
Offering Memorandum (including related notes) (i) present, on the basis stated therein, fairly
in all material respects the information shown therein, (ii) are prepared using reasonable
assumptions, and (iii) give appropriate effect to the transactions or circumstances referred to
therein on a reasonable basis and in good faith.
(qq) Neither the Issuer nor any of the Guarantors is, or after giving effect to the
offering and sale of the Securities and the application of the proceeds therefrom as described
in the Time of Sale Information and the Offering Memorandum will be, an “investment
company” or an entity “controlled by” an “investment company” as such terms are defined
in the Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Investment Company Act”).
(rr) Assuming the accuracy of the representations of the Initial Purchasers contained
in Section 1 hereof and the Initial Purchasers’ compliance with their agreements set forth
herein, it is not necessary in connection with the offer, issuance, sale and delivery of the
Securities in the manner contemplated by this Agreement, the Time of Sale Information and
the Offering Memorandum, to register the Securities under the Securities Act or to qualify the
Indenture, as supplemented by the Supplemental Indentures, under the U.S. Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”).
(ss) No forward-looking statement (within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act) contained in any of the Time of Sale
Information or the Offering Memorandum has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(tt) Each of the Issuer and the Guarantors has the power to submit, and
pursuant to this Agreement has submitted, or at the Closing Date (or in the case of the Post-
Completion Guarantors, on or prior to the applicable Accession Date) will have submitted,
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legally, validly, effectively and irrevocably, to the jurisdiction of any U.S. Federal or New York
State court in the Borough of Manhattan in the City of New York, New York; and each of the
Issuer and the Guarantors has the power to designate, appoint and empower, and pursuant to
this Agreement has, or at the Closing Date (or in the case of the Post-Completion Guarantors,
on or prior to the applicable Accession Date) will have, designated, appointed and empowered,
validly, effectively and irrevocably, CCS Global Solutions, Inc. or another suitable entity as
agent for service of process in any suit or proceeding based on or arising under this Agreement
in any U.S. Federal or New York State court in the Borough of Manhattan in the City of New
York, as provided herein.
(uu) In the last five years, none of the Issuer, the Guarantors, their respective
directors or officers (except for the matter disclosed by the Target pursuant to telephone
conversations between the Target, Latham & Watkins and Kirkland & Ellis International LLP
at 3:00 P.M. London time on September 19, 2019), nor, to the respective knowledge of the
Issuer and each of the Guarantors, any agent, employee, controlled affiliate or other person
acting on their respective behalf, or any of their respective subsidiaries has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made or taken an act in furtherance of any offer, promise or
authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic
government official or employee, including of any government owned or controlled entity or
of a public international organization, or any person acting in an official capacity for or on
behalf of any of the foregoing, or any political party or party official or candidate for political
office; (iii) taken any action, directly or indirectly, that would result in a violation by such
persons of the U.S. Foreign Corrupt Practices Act of 1977, as amended and the rules and
regulations thereunder (“FCPA”), or any applicable law or regulation implementing the OECD
Convention on Combatting Bribery of Foreign Public Officials in International Business
Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, the
Criminal Justice (Corruption Offences) Act 2018 of Ireland or any other applicable anti-bribery
or anti-corruption law, including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise
to pay or authorization of the payment of any money, or other property, gift, promise to give,
or authorization of the giving of anything of value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment. Each of the Issuer and the Guarantors,
and, in each case, to the respective knowledge of the Issuer and the Guarantors, their respective
subsidiaries and affiliates have conducted their businesses in compliance with the FCPA and
any other applicable anti-bribery laws. None of the Issuer, the Guarantors, their respective
directors, officers, nor to the respective knowledge of the Issuer or the Guarantors, any of their
subsidiaries or in each case, their respective agents, employees, affiliates or other person acting
on their respective behalf or any of their respective subsidiaries, has made, offered, agreed,
requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit,
including, without limitation, any rebate, payoff, influence payment, kickback or other
unlawful or improper payment or benefit. Each of the Issuer and the Guarantors and, in each
case, their respective subsidiaries and controlled affiliates have instituted and maintain policies
and procedures designed to ensure continued compliance with anti-bribery laws, including, but
not limited to, the FCPA. None of the Issuer, the Guarantors, or any of their respective
subsidiaries, will use, directly or indirectly, the proceeds of the offering in furtherance of an
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offer, payment, promise to pay, or authorization of the payment or giving of money, or anything
else of value, to any person in violation of any applicable anti-corruption laws.
(vv) The operations of the Issuer and the Guarantors (except for the matter
disclosed by the Target pursuant to telephone conversations between the Target, Latham &
Watkins and Kirkland & Ellis International LLP at 3:00 P.M. London time on September 19,
2019) and any of their respective subsidiaries, are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements of, including
without limitation, those of Title 18 U.S. Code section 1956 and 1957, the Bank Secrecy Act
of 1970, as amended by Title III of the Uniting and Strengthening America by Providing
Appropriate tools Required to Intercept and Obstruct Terrorism Act of 2001, otherwise known
as the Currency and Foreign Transactions Reporting Act, as amended, the applicable anti-
money laundering statutes of all jurisdictions where the Issuer and the Guarantors or any of
their respective subsidiaries conducts business, the rules and regulations thereunder and any
related or similar statutes, rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action,
suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Issuer, the Guarantors or any of their respective subsidiaries with
respect to the Anti-Money Laundering Laws is pending or, to the respective knowledge of the
Issuer or the Guarantors, threatened.
(ww) None of the Issuer, the Guarantors nor any of their respective
subsidiaries, their respective directors or officers nor, to the knowledge of the Issuer and each
of the Guarantors, any agent, controlled affiliate or other person acting on behalf of the Issuer,
the Guarantors or any of their respective subsidiaries is currently (or, in the case of a Guarantor
that qualifies as a German resident (Inländer) within the meaning of Section 2 paragraph 15 of
the German Foreign Trade Act (Außenwirtschaftsgesetz) (including its directors, managers,
officers, agents and/or employees)) the subject of any sanctions administered or enforced by
the U.S. government (including, without limitation, the Office of Foreign Assets Control of the
U.S. Department of the Treasury (“OFAC”), the U.S. Department of Commerce or the U.S.
Department of State and including, without limitation, an individual or entity that is the subject
of Sanctions under the Specially Designated Nationals and Blocked Persons list, the Sectoral
Sanctions Identifications List, or similar list issued by another relevant sanctions authority),
the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury
or other relevant sanctions authority (collectively, “Sanctions”), and none of the Issuer, the
Guarantors, the Target or any of their respective subsidiaries located, organized or resident in
a country or territory that is the subject of comprehensive Sanctions, including, without
limitation, Crimea, Cuba, Iran, North Korea and Syria (each, a “Sanctioned
Country/Territory”); none of the Issuer or the Issue Date Guarantors since their respective dates
of incorporation and none of the Post-Completion Guarantors during the past five years, or,
any of their respective subsidiaries have, knowingly engaged in, are now knowingly engaged
in, or will knowingly engage in, any dealings or transactions with any person, or in any country
or territory, that at the time of the dealing or transaction is or was a Sanctioned
Country/Territory; none of the issue and sale of the Securities, the execution, delivery and
performance of the Transaction Documents, the direct or indirect use of proceeds from the
offering, or the consummation of any other transaction contemplated hereby or the fulfillment
of the terms hereof, or the provision of services to any of the foregoing will result in a violation
by any person (including, without limitation, the Initial Purchasers) of any Sanction, and the
Issuer will not directly or indirectly use the proceeds of the offering hereunder, or lend,
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contribute or otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity (i) to fund any activities of or business with any person that, at the
time of such funding, is the subject of Sanctions, except as authorized under applicable law,
(ii) to fund any activities of or business in any comprehensively Sanctioned Country/Territory
or (iii) in any other manner that will result in a Sanctions violation by any person (including
any person participating in the Offering) whether as underwriter, initial purchaser, advisor,
investor or otherwise) of Sanctions.
The representations and warranties in this paragraph (ww) are only made to the extent
that they do not violate, conflict with or expose the Issuer and Guarantors, any of their
respective subsidiaries or any of their respective directors, officers or employees thereof to any
liability under, any anti-boycott or blocking law, regulation or statute that is in force from time
to time and applicable to such entity (including without limitation EU Regulation (EC) 2271/96
and Section 7 of the German Foreign Trade Ordinance (Verordnung zur Durchführung des
Außenwirtschaftsgesetzes (Außenwirtschaftsverordnung – AWV)).
The representations and undertakings given by the Issuer and the Guarantors to
Deutsche Bank AG, London Branch, Mizuho Securities Europe GmbH and UniCredit Bank
AG in this paragraph (ww) are made only to the extent that Deutsche Bank AG, London
Branch, Mizuho Securities Europe GmbH and UniCredit Bank AG would be permitted to
receive such representations and undertakings pursuant to Section 7 of the German Foreign
Trade Ordinance (Verordnung zur Durchführung des Außenwirtschaftsgesetzes
(Außenwirtschaftsverordnung – AWV)) and any other anti-boycott or blocking law, regulation
or statute that is in force from time to time and applicable to Deutsche Bank AG, London
Branch, Mizuho Securities Europe GmbH and UniCredit Bank AG.
(xx) None of the Issuer, the Issue Date Guarantors nor, to the knowledge of the Issuer
after due inquiry, the Post-Completion Guarantors or any person acting on their respective
behalf, has distributed or, prior to the later to occur of (i) the Closing Date and (ii) the
completion of the distribution of the Securities, will distribute, any material in connection with
the offering and sale of the Securities other than the Time of Sale Information or the Offering
Memorandum or other materials, if any, permitted by the Securities Act and the FSMA, or
regulations promulgated pursuant to the Securities Act or FSMA, and approved by the parties
to this Agreement.
(yy) The Issuer, the Issue Date Guarantors and, to the knowledge of the Issuer after
due inquiry, the Post-Completion Guarantors and each of their respective subsidiaries
maintains a system of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of consolidated
financial statements in conformity with IFRS (where applicable) and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded assets are compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.
(zz) Except as otherwise disclosed in the Time of Sale Information or the Offering
Memorandum, no stamp, issuance, transfer, documentary, registration or other similar taxes,
duties, fees or charges are payable by the Initial Purchasers in any Relevant Taxing Jurisdiction
in connection with (a) the issuance, creation or delivery by the Issuer of the Notes, (b) the sale,
transfer and delivery of the Notes to the respective Initial Purchasers pursuant to this
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Agreement or the initial purchase, initial resale and delivery of the Notes by the Initial
Purchasers in the manner contemplated by this Agreement, (c) the issuance, creation or delivery
by the Guarantors of the Guarantees, or (d) the execution and delivery of this Agreement and
the other Transaction Documents.
(aaa) Except as otherwise disclosed in the Time of Sale Information or the Offering
Memorandum, all payments to be made by the Issuer or any Guarantor under this Agreement
and all interest, principal, premium, if any, additional amounts, if any, and other payments on
or under the Notes or the Guarantees may, under the current laws and regulations of the
Relevant Taxing Jurisdiction, be paid in U.S. dollars that may be converted into another
currency and freely transferred out of such Relevant Taxing Jurisdiction, and, except as
disclosed in the Time of Sale Information or the Offering Memorandum, all such payments
will not be subject to withholding or deduction for, or on account of, taxes under the current
laws and regulations of the Relevant Taxing Jurisdiction and are otherwise payable free and
clear of any other tax, or withholding or deduction for or on account of tax, in the Relevant
Taxing Jurisdiction (except for any taxes which may be imposed on a recipient of such payment
as a result solely of such recipient being resident for tax purposes (or having a permanent
establishment) in the Relevant Taxing Jurisdiction) and without the necessity of obtaining any
governmental authorization in the Relevant Taxing Jurisdiction.
(bbb) Except as otherwise disclosed in the Time of Sale Information or the Offering
Memorandum or as would not, individually or in the aggregate, have a Material Adverse Effect,
(A) the Issuer, the Issue Date Guarantors and the Target Group has paid or caused to be paid
all national, regional, local and other taxes and filed or caused to be filed all tax returns required
to be paid or filed through the date hereof; and (B) there is no tax deficiency that has been, or
could reasonably be expected to be asserted against the Issuer, the Issue Date Guarantors and
the Target Group or any of their respective properties or assets.
(ccc) The minute books and records of the Issuer and the Guarantors relating to
proceedings of their respective shareholders, boards of directors and committees of their
respective boards of directors made available to counsel for the Initial Purchasers are their
original minute books and records or are true, correct and complete copies thereof, with respect
to all proceedings of said shareholders, boards of directors and committees since (i) the date of
the Existing 2026 Indenture, with respect to the Post-Completion Guarantors, and (ii) the
respective dates of incorporation, with respect to the Issuer and the Issue Date Guarantors, each
through the date hereof. In the event that definitive minutes have not been prepared with
respect to any proceedings of such shareholders, boards of directors or committees, the Issuer
has provided counsel for the Initial Purchasers with originals or true, correct and complete
copies of draft minutes or written agendas relating thereto, which drafts and agendas, if any,
reflect all material events that occurred in connection with such proceedings. All material and
applicable information, instruments, records, agreements and other documents requested in
counsel for the Initial Purchasers’ document request letter dated August 9, 2019, have been
provided to, or made available for inspection by, such counsel.
(ddd) No labor disturbance by or dispute with employees of the Issuer, the Guarantors
and, the Target Group exists or, to the best knowledge of the Issuer and each of the Guarantors,
is contemplated or threatened, except as would not, individually or in the aggregate, have a
Material Adverse Effect; and to the best knowledge of the Issuer and each of the Guarantors,
no labor disturbance by or dispute with the employees or agents of any principal supplier,
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contractor or customer of the Issuer and the Guarantors is contemplated or threatened which
could, individually or in the aggregate, have a Material Adverse Effect.
(eee) Each benefit and compensation plan, agreement, policy and arrangement that is
maintained, administered or contributed to by the Issuer, the Issue Date Guarantors and, to the
knowledge of the Issuer after due inquiry, the Post-Completion Guarantors or any of their
respective affiliates for current or former employees or directors of, or independent contractors
with respect to, the Issuer, the Issue Date Guarantors and, to the knowledge of the Issuer after
due inquiry, the Post-Completion Guarantors or any of their respective affiliates, or with
respect to which any of such entities could reasonably be expected to have any current, future
or contingent liability or responsibility, has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations; the Issuer, the Issue
Date Guarantors and, to the knowledge of the Issuer after due inquiry, the Post-Completion
Guarantors and each of their respective affiliates have complied with all applicable statutes,
orders, rules and regulations in regard to such plans, agreements, policies and arrangements in
all material respects; except as would not, individually or in the aggregate, have a Material
Adverse Effect, the fair market value of the assets of each such plan, agreement, policy and
arrangement which is required or intended to be funded (excluding for these purposes accrued
but unpaid contributions) exceeds the present value of all benefits accrued or earned or
payments due under such plan, agreement, policy or arrangement determined using reasonable
actuarial assumptions; and the liabilities reflected on the relevant entity’s financial statements
with respect to each such plan, agreement, policy and arrangement which is not required or
intended to be funded accurately reflects the present value of all benefits earned or accrued or
payments due under such plan, agreement, policy or arrangement determined using reasonable
actuarial assumptions.
(fff) There are no injunctions or orders commenced, pending or threatened by any
court which would prevent the issuance and sale of the Securities as contemplated by this
Agreement and each of the Time of Sale Information and the Offering Memorandum.
(ggg) Each of the Issuer, the Guarantors and the Target Group is in compliance with all
applicable laws with respect to the operation and security of their respective information
technology systems, and there have been no material (actual or attempted) breaches, outages,
corruptions, interruptions or violations of (or deletions or damages to) the same, except for
such non-compliance or events that would not reasonably be expected to have a Material
Adverse Effect.
(hhh) Under the laws of Ireland in respect of the Issuer, and under the laws of
England and Wales in respect of Bidco and Midco (together, the “English Guarantors”), the
submission by the Issuer and the English Guarantors to the jurisdiction of any United States
federal or state court sitting in the State of New York and the designation of the law of the State
of New York to apply to this Agreement and the Indenture (including the Guarantees set forth
therein) are valid and binding upon the Issuer and the English Guarantors) and would be
recognized and enforceable against the Issuer in Ireland and the English Guarantors in England
and Wales.
(iii) Application will be made by or on behalf of the Issuer to The International
Stock Exchange Authority Limited (the “Authority”) for the Offering Memorandum to be
approved by the Authority as a listing particulars and for the Notes to be listed on the Exchange.
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(jjj) Neither the issuance of the Notes by the Issuer nor the entry into the Guarantees
by each of the Guarantors will result in a breach of any provisions relating to financial
assistance, principles of corporate benefit or any similar analogous law or regulation of the
jurisdictions applicable to the Issuer or any of the Guarantors, as the case may be, which could
invalidate the enforceability of the Notes or the Guarantees, as the case may be.
4. Further Agreements of the Issuer and the Guarantors. The Issuer and the Issue
Date Guarantors upon the date hereof, and each Post-Completion Guarantor upon its accession
to this Agreement pursuant to Section 25 hereof, jointly and severally, agrees with each of the
Initial Purchasers as follows:
(a) in connection with the Offering, to give all such assistance and provide all such
information as the Initial Purchasers may reasonably require for the purchase of the Notes
pursuant to the Offering and to do, or procure to be done, all such things and execute, or procure
to be executed, all such documents as are customary and may be necessary in the reasonable
opinion of the Initial Purchasers to be done or executed by the Issuer or the Guarantors in
connection with the purchase of the Notes;
(b) to deliver to the Initial Purchasers, without charge, as many copies of the
Preliminary Offering Memorandum, any other Time of Sale Information, any Issuer Written
Communication and the Offering Memorandum (including all amendments and supplements
thereto) as the Initial Purchasers or their counsel may reasonably request;
(c) before finalizing the Offering Memorandum or making or distributing any
amendment or supplement to any of the Time of Sale Information or the Offering
Memorandum, to furnish to the Representatives and counsel for the Initial Purchasers a copy
thereof for review and not distribute (i) any Offering Memorandum to which the Initial
Purchasers or their counsel reasonably object, or (ii) any such proposed amendment or
supplement to which the Initial Purchasers or their counsel reasonably object, unless required
by law or the rules and regulations of the Authority (the “Authority Rules”);
(d) before making, preparing, using, authorizing, approving or referring to any
Issuer Written Communication, to furnish to the Representatives and counsel for the Initial
Purchasers a copy of such written communication for review and will not make, prepare, use,
authorize, approve or refer to any such written communication to which the Representatives
reasonably object;
(e) if, at any time prior to the completion of the distribution of all of the Notes by
the Initial Purchasers as contemplated by the Offering Memorandum, any event shall occur as
a result of which it is necessary, as mutually agreed by the Issuer, the Initial Purchasers and
their respective counsels, to amend or supplement the Preliminary Offering Memorandum, the
Time of Sale Information, any Issuer Written Communication or the Offering Memorandum in
order to make the statements contained therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary, as mutually agreed by the Issuer, the
Initial Purchasers and their respective counsels, to amend or supplement the Preliminary
Offering Memorandum, the Time of Sale Information, any Issuer Written Communication or
the Offering Memorandum to comply with law and the Authority Rules, forthwith, if requested
by the Representatives, to prepare and furnish, at the expense of the Issuer, to the Initial
Purchasers and to the dealers (whose names and addresses the Initial Purchasers will furnish to
the Issuer) to which Notes may have been sold by the Initial Purchasers and to any other dealers
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upon request, such reasonable number of amendments or supplements to the Preliminary
Offering Memorandum, the Time of Sale Information, any Issuer Written Communication or
the Offering Memorandum as may be necessary so that the statements therein as so amended
or supplemented will not, in light of the circumstances under which they are made, be
misleading or so that the Preliminary Offering Memorandum, the Time of Sale Information,
any Issuer Written Communication or the Offering Memorandum will comply with law and
the Authority Rules;
(f) to cooperate with the Initial Purchasers and their counsel in connection with the
qualification of the Notes and the Guarantees for offer and sale under the securities or blue sky
laws of such jurisdictions as the Representatives shall reasonably request and to comply with
such laws and to continue such qualification in effect so long as reasonably required for
distribution of the Notes; provided that neither the Issuer, nor any of the Guarantors shall be
required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any
such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any
such jurisdiction if it is not otherwise so subject;
(g) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Issuer and each of the Guarantors jointly
and severally agree to pay or cause to be paid all costs and expenses (together with, for the
avoidance of doubt, any VAT thereon which shall be payable in accordance with Section 4(r)
below) incidental to the performance of their obligations hereunder, including all fees, costs
and expenses incidental to (i) the preparation, authorization, issuance, execution, authentication
and delivery of the Notes, including any expenses of the Trustee, any registrar or co-registrar,
paying agent or transfer agent (including related fees and expenses of any counsel to such
parties), (ii) the preparation, printing and distribution of the Preliminary Offering
Memorandum, any other Time of Sale Information, any Issuer Written Communication, the
Offering Memorandum, (including all exhibits, amendments and supplements thereto), (iii) the
registration or qualification and determination of eligibility for investment of the Notes under
the laws of such jurisdictions as the Initial Purchasers may reasonably designate (including fees
of counsel for the Initial Purchasers and their reasonable disbursements in connection
therewith), (iv) the fees and expenses associated with obtaining approval for trading of the
Notes on any securities exchange (including the listing of the Notes on the Exchange), (v) the
printing (including word processing and duplication costs) and delivery of this Agreement, the
Transaction Documents and the delivery of the blue sky memorandum and the furnishing to
the Initial Purchasers and dealers of copies of the Preliminary Offering Memorandum, any
other Time of Sale Information, any Issuer Written Communication, and the Offering
Memorandum, including mailing and shipping, (vi) any fees charged by investment rating
agencies in connection with the rating of the Notes and all fees and expenses of the Issuer
relating to the rating agency process, including those incident to making all presentations to
the rating agencies, (vii) the reasonable fees and expenses of the Issuer’s, the Issue Date
Guarantors’ and the Target Group’s legal counsel (including local counsel) and independent
accountant; (viii) the reasonable fees and expenses of counsel to the Initial Purchasers
(including Latham & Watkins (London) LLP and local counsel), (ix) the fees and expenses of
any Authorized Agent (as defined in Section 13(c) hereof), (x) all expenses and application
fees incurred in connection with the application of the Notes’ eligibility for clearance and
settlement through the facilities of DTC, Euroclear and Clearstream, as applicable, (xi) all
expenses incurred by the Initial Purchasers and the Issuer or its representatives in connection
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with presentations and roadshows relating to prospective purchasers of the Notes, (xii) any
stamp or other issuance or transfer taxes or similar governmental duties, if any, payable (as
required by law) by the Initial Purchasers in connection with the offer and sale of the Notes to
the Initial Purchasers and the initial resale of the Notes by the Initial Purchasers to purchasers
thereof in the manner contemplated by this Agreement, and (xiii) all other reasonable out-of-
pocket expenses reasonably incurred by the Initial Purchasers or any of their affiliates in
connection with, or arising out of, the Offering;
(h) to apply the net proceeds from the sale of the Notes as described in each of the
Time of Sale Information and the Offering Memorandum under the heading “Use of Proceeds”;
(i) during the period beginning after the date hereof and continuing until the date
40 days after the Closing Date, each of the Issuer, the Guarantors and the Target Group and
each of their respective affiliates will not, directly or indirectly, offer, sell, contract to sell,
issue, pledge or otherwise dispose of, enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) of any debt securities or guarantees
thereof (except relating to the Senior Facilities Agreement and/or any hedging obligations
related thereto) without the consent of the Representatives and with respect to the Dollar Notes,
BofA Securities, Inc.;
(j) neither the Issuer nor any of the Guarantors nor the Target or its subsidiaries
will take, directly or indirectly, any action designed to or that could reasonably be expected to
cause or result in any stabilization or manipulation of the price of the Notes. The Issuer
authorizes the Representatives to make adequate public disclosure of the information to the
extent required by the Financial Conduct Authority under the FSMA. None of the Issuer, the
Guarantors, the Target Group or any of their respective affiliates will take any action or omit
to take any action, as communicated by the Initial Purchasers, which may result in any of the
Initial Purchasers being unable to rely upon the safe harbor for stabilization provided by the
Financial Conduct Authority under the FSMA or any other safe harbor for stabilization
provided for under any applicable law, regulations or rules (including any stock exchange
rules) in the jurisdiction where such stabilization is effected;
(k) none of the Issuer, the Guarantors or any of their respective affiliates (as defined
in Rule 501(b) of Regulation D), or any person acting on its or their behalf will, directly or
indirectly, make offers or sales of any security, or solicit offers to buy any security (as defined
in the Securities Act), that would require the registration of the Notes or the Guarantees under
the Securities Act (except that the Issuer and each of the Guarantors do not covenant in respect
of actions taken by the Initial Purchasers, their respective affiliates or any person acting on
their behalf);
(l) none of the Issuer, the Guarantors or any of their respective affiliates (as defined
in Rule 501(b) of Regulation D) or any person acting on behalf of any of the foregoing (other
than the Initial Purchasers, as to which no covenant is given) will solicit any offer to buy or
offer to sell the Notes by means of any form of general solicitation or general advertising
(within the meaning of Rule 502(c) of Regulation D) or in any manner involving a public
offering within the meaning of Section 4(a)(2) of the Securities Act;
(m) none of the Issuer, the Guarantors or any of their respective affiliates (as defined
in Rule 501(b) of Regulation D) or any person acting on behalf of any of the foregoing, will
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engage in any directed selling efforts with respect to the Notes within the meaning of
Regulation S, and all such persons will comply with the offering restrictions requirement of
Regulation S;
(n) none of the Issuer, the Issue Date Guarantors or any of their respective affiliates
(as defined in Regulation 501(b) of Regulation D), or (on or after the Acquisition Completion
Date) the Target Group or any or any of their affiliates (as defined in Rule 501(b) of Regulation
D), or any person acting on behalf of any of the foregoing, will sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act)
which will be integrated with the sale of the Securities in a manner which would require the
registration under the Securities Act of the Securities and the Issuer and the Issue Date
Guarantors (and on or after the Acquisition Completion Date, the Target Group) will take all
action that is appropriate or necessary to assure that any offerings by the Issuer, the Guarantors,
the Target or any of their respective subsidiaries of other securities will not be integrated for
purposes of the Securities Act with the offering contemplated hereby;
(o) the Issuer will assist the Initial Purchasers in arranging for the Notes to be
eligible for clearance and settlement through the facilities of DTC, Euroclear and Clearstream,
as applicable, and to maintain such eligibility for so long as the Notes remain outstanding;
(p) the Issuer and the Guarantors will, jointly and severally, indemnify and hold
harmless the Initial Purchasers against any documentary, stamp, registration, or similar
issuance or transfer taxes, duties, charges or fees including any interest and penalties required
by law to be paid, in the United Kingdom, the United States, Luxembourg, Ireland or any other
jurisdiction, or any political subdivision or any authority or agency therein or thereof having
power to tax, on the creation, issuance, delivery and/or sale of the Notes to the Initial
Purchasers, on the initial resale and delivery of the Notes by the Initial Purchasers in the manner
contemplated by this Agreement, on the creation, issuance and/or delivery by the Guarantors
of the Guarantees, and on the execution and/or delivery of this Agreement and any Transaction
Documents;
(q) all amounts payable by the Issuer or any Guarantor hereunder shall be
paid in U.S. dollars, and free and clear of and without withholding or deduction for or on
account of any present or future taxes, levies, imposts, duties, charges or other deductions or
withholdings levied in any jurisdiction from or through which payment is made by or on behalf
of the Issuer or any Guarantor, or in which the payor is located, unless such deduction or
withholding is required by applicable law; and in that event, the Issuer and/or the Guarantor
shall pay such additional amounts (a “Tax Payment”) as may be necessary in order that the net
amounts received after such withholding or deduction shall equal the amounts that would have
been received if no withholding or deduction had been made. However, none of the Issuer
and/or the Guarantors will be required to make a Tax Payment with respect to taxes imposed
by Luxembourg under the law dated 23 December 2005, as amended, introducing a
withholding tax on certain payments made to or for the immediate benefit of a Luxembourg
individual resident. In the event that the Issuer or any Guarantor makes a Tax Payment pursuant
to this paragraph (q), and (i) credit against, relief or remission for, or repayment of, any tax (a
“Tax Credit”) is attributable to either the deduction or withholding giving rise to that Tax
Payment, or to that Tax Payment; and (ii) the relevant payee has obtained, utilized and retained
that Tax Credit; then that payee shall pay an amount to the Issuer or Guarantor which that payee
determines (acting in good faith) will leave it (after making that payment) in the same after tax
position as it would have been had the deduction or withholding giving rise to such Tax
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Payment not been made, net of all expenses incurred by the payee in connection with obtaining
the Tax Credit and without interest, and provided always that nothing in this subsection shall
be construed to (i) interfere with the rights of any Initial Purchaser to arrange its affairs (tax or
otherwise) in whatever manner it thinks fit; (ii) oblige any Initial Purchaser to investigate or
claim any credit, relief, remission or repayment available to it or the extent, order and manner
of any claim; or (iii) require any Initial Purchaser to make available its tax returns (or any other
information which it reasonably deems confidential) to the Issuer, the Guarantors or any other
person;
(r) all amounts chargeable by the Initial Purchasers under this Agreement which
constitute the consideration for any supply for VAT purposes shall be exclusive of VAT. If
any VAT is chargeable in respect of any supply by any Initial Purchaser and such Initial
Purchaser (or a member of such Initial Purchaser’s group) is the person liable to account for
such VAT to the relevant taxing authority, then such amounts shall be charged together with
an amount equal to any VAT chargeable on the relevant supply. Such amount equal to VAT
shall be payable upon delivery of an appropriate valid VAT invoice in respect of the supply to
which the charge relates. Any amount for which the Initial Purchasers are to be reimbursed or
indemnified under this Agreement will be reimbursed or indemnified (as applicable) together
with an amount equal to any VAT, where appropriate, including, for the avoidance of doubt,
any VAT on services provided from legal counsel where an Initial Purchaser is required to self-
assess and account for VAT in its role as the recipient of such services. If the Issuer or a
Guarantor pays any amounts representing VAT on fees, costs and expenses to an Initial
Purchaser and such Initial Purchaser determines (acting in good faith) that such amounts are
recoverable by it, such Initial Purchaser shall, without unreasonable delay pay such amounts
back to the Issuer or Guarantor, provided always that (for the avoidance of doubt) the language
in (i) to (iii) of Section 4(q) above applies to such Initial Purchaser’s obligations;
(s) prior to the completion of the distribution of the Notes, neither the Issuer nor
any of the Guarantors will issue any press release or other communication directly or indirectly
or hold any press conference (except for routine communications in the ordinary course of
business consistent with past practice which, for the avoidance of doubt, includes
communications with shareholders and communications with the trade press) with respect to
the Issuer, the Guarantors or the Target Group or any of their respective subsidiaries, the
condition, financial or otherwise, or the earnings, business affairs or business prospects of the
Issuer, the Guarantors or the Target Group, without the prior consent of the Initial Purchasers
(such consent not to be unreasonably withheld), unless in the judgment of the Issuer and the
Guarantors and their counsel, subject to notification to the Initial Purchasers (to the extent
permitted under applicable law), such press release or communication is required by law or
under the rules of the Authority or the Exchange or except as issued in accordance with the
Securities Act and the rules and regulations promulgated thereunder;
(t) for so long as the Securities are outstanding and are “restricted securities” within
the meaning of Rule 144(a)(3) under the Securities Act, the Issuer will, furnish to holders of
the Securities and prospective purchasers of the Notes designated by such holders, upon request
of such holders or such prospective purchasers, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act, unless the Issuer is then subject to and
in compliance with Section 13 or 15(d) of the Exchange Act or exempt from reporting pursuant
to Rule 12g3-2(b) thereunder (the foregoing agreement being for the benefit of the holders from
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time to time of the Securities and prospective purchasers of the Notes designated by such
holders);
(u) so long as the Securities remain “restricted securities” for the purposes of Rule
144 under the Securities Act, the Issuer and the Issue Date Guarantors will not, and, as of each
Accession Date, the Post-Completion Guarantors will not, and will not permit any of their
respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the
Securities that have been acquired by any of them, except for Notes purchased by the Issuer,
the Guarantors or any of their respective affiliates and resold in a transaction registered under
the Securities Act, or in a transaction outside the United States in accordance with Regulation
S;
(v) the Issuer and the Guarantors will use their commercially reasonable efforts to
do and perform all things required or necessary to be done and performed under this Agreement
by them prior to the Closing Date or the relevant Accession Date, as applicable, and to satisfy
all conditions precedent to the delivery of the Notes, as applicable;
(w) the Issuer will use its commercially reasonable efforts to ensure that (i) the
Offering Memorandum complies with the requirements of the Authority, (ii) the Offering
Memorandum is approved by the Exchange as soon as practicable after the Closing Date, and
(iii) the Issuer and the Issue Date Guarantors will furnish the Offering Memorandum to the
Initial Purchasers, without charge, no later than 10:00 a.m. London time on the Business Day
next succeeding the date of formal approval (if any) of the Offering Memorandum by the
Exchange;
(x) the Issuer will (i) use its commercially reasonable efforts to cause the
Notes to be listed on the Official List of the Exchange as soon as reasonably practicable after
the Closing Date but in no event later than the date of the first interest payment on the Notes;
(ii) deliver to the Exchange copies of the Offering Memorandum and such other documents,
information and commercially reasonable undertakings as may be required in connection with
obtaining such listing; and (iii) use its commercially reasonable efforts to maintain such listing
of the Notes for so long as any of the Notes are outstanding;
(y) The Issuer shall procure that (i) subject to the Agreed Security
Principles, within 120 days from the Acquisition Completion Date, and substantially
simultaneously with the guarantees granted in favor of obligations under the Senior Facilities
Agreement, each Post-Completion Guarantor (A) accedes to this Agreement by executing and
delivering an Accession Agreement to the Initial Purchasers substantially in the form of Annex
C hereto and as may be amended to observe applicable execution formalities, (B) accedes to
the Indenture by executing and delivering a Supplemental Indenture, substantially in the form
contemplated by the Indenture, and (C) accedes to the Intercreditor Agreement by executing
and delivering an Intercreditor Accession Deed; and (ii) each Post-Completion Guarantor, on
the date such Post-Completion Guarantor accedes to this Agreement, shall cause to be delivered
to the Initial Purchasers, a certificate signed by a member of its board of directors, dated as of
such Accession Date, in form and substance reasonably satisfactory to the Initial Purchasers
and which shall include the following documents: (1) a copy of the constitutional documents
of such Post-Completion Guarantor, (2) a copy of the resolutions of the board of directors or
equivalent body (or the shareholders, as applicable) of such Post-Completion Guarantor
relating to the entry into the applicable Transaction Documents, (3) a specimen of the signature
of persons authorized by the resolutions referred to in clause (2) above and (4) a letter of
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appointment for an agent of service of process relating to the Indenture and this Agreement,
and (iii) causes to be delivered to the Initial Purchasers, as applicable, opinions of Kirkland &
Ellis International LLP, DLA Piper UK LLP, Arthur Cox, DLA Piper Denmark P/S and DLA
Piper Studio Legale Tributario Associato, as the case may be, United States, English, Irish,
German, Danish and Italian counsel to the Issuer, each dated the applicable date and in form
and substance reasonably satisfactory to the Initial Purchasers;
(z) On the Escrow Release Date, the Issuer shall cause to be delivered to the
Initial Purchasers, dated as of the Escrow Release Date and in form and substance reasonably
satisfactory to the Initial Purchasers: a certificate executed by an executive officer or director
of the Target who has specific knowledge of the financial matters of the Target, confirming
that such officer or director has reviewed the Time of Sale Information and the Offering
Memorandum and, to the knowledge of such officer or director after reasonable inquiry, the
representations and warranties set forth in Sections 3(a) and 3(b) hereof are true and correct as
of the Time of Sale; and
(aa) no Guarantors incorporated in Italy will segregate assets for purposes of article
2447 bis of the Italian civil code nor will any of them issue any class of financial instruments
under article 2447 ter of the Italian civil code.
5. Conditions of Initial Purchasers’ Obligations. The several obligations of the
Initial Purchasers hereunder to purchase the Notes on the Closing Date are subject to the
following conditions:
(a) the representations and warranties of the Issuer contained herein are true
and correct on and as of the date of this Agreement, the Time of Sale and the Closing Date as
if made on and as of the date hereof, the Time of Sale or the Closing Date; the representations
and warranties of each of the Guarantors contained herein are true and correct on and as of the
date of this Agreement, the Time of Sale and the Closing Date as if made on and as of the date
hereof, the Time of Sale and the Closing Date; the statements of the Issuer or any of the Issue
Date Guarantors and their respective officers made in any certificates delivered pursuant to this
Agreement shall be true and correct on and as of the Closing Date; the Issuer and the Issue
Date Guarantors shall have complied with all material agreements and all conditions on their
part to be performed or satisfied hereunder at or prior to the Closing Date;
(b) except as disclosed in the Time of Sale Information and the Offering
Memorandum, (i) with respect to the Post-Completion Guarantors, since the date of the most
recent consolidated financial statements of the Target and its subsidiaries included in each of
the Time of Sale Information and the Offering Memorandum, and (ii) with respect to the Issuer
and the Issue Date Guarantors, since their respective dates of incorporation, there shall not have
been any change in the capital stock or long-term debt of the Issuer, the Guarantors, or any of
their respective subsidiaries or any material adverse change or any development which would
reasonably be expected to result in a Material Adverse Effect, the effect of which in the
reasonable judgment of the Representatives makes it impracticable or inadvisable to proceed
with the Offering;
(c) as of the Closing Date and at any time subsequent to the earlier of (A) the Time
of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have
occurred in the rating accorded the Notes or any other debt securities or preferred stock issued
or guaranteed by the Issuer or the Target or any of its subsidiaries by any “nationally recognized
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statistical rating organization,” as such term is defined by the Commission for purposes of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act and (ii) no such organization shall have publicly
announced that it has under surveillance or review, or has changed its outlook with respect to,
its rating of the Notes or of any other debt securities or preferred stock issued or guaranteed by
the Issuer or the Target or any of its subsidiaries (other than an announcement with positive
implications of a possible upgrading);
(d) the Initial Purchasers shall have received on and as of the Closing Date, a
certificate of an officer or director of the Issuer, with specific knowledge about financial
matters of the Issuer and its subsidiaries, reasonably satisfactory to the Initial Purchasers to the
effect set forth in paragraphs (a), (b) and (c) of this Section 5;
(e) the Issuer shall have requested and caused Kirkland & Ellis International LLP,
as United States counsel for the Issuer and the Issue Date Guarantors, to furnish to the Initial
Purchasers its written opinion and Rule 10b-5 disclosure letter, dated the Closing Date, in form
and substance reasonably satisfactory to the Initial Purchasers;
(f) the Issuer shall have requested and caused Kirkland & Ellis International LLP,
as English counsel for the Issuer and the Issue Date Guarantors, to furnish to the Initial
Purchasers its written opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers;
(g) the Issuer shall have requested and caused Arthur Cox, as Irish counsel for the
Issuer and the Issue Date Guarantors, to furnish to the Initial Purchasers its written opinion,
dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers;
(h) the Initial Purchasers shall have received opinions, dated the Closing Date, of
local counsels to the Issuer and the Issue Date Guarantors in the jurisdictions set forth in
Schedule IV hereto, in form and substance reasonably satisfactory to the Initial Purchasers;
(i) on the Offering Memorandum Date and on the Closing Date, KPMG LLP shall
have furnished to the Initial Purchasers letters, dated the respective dates of delivery thereof
and addressed to the Initial Purchasers, containing statements and information of the type
customarily included in accountants’ “comfort letters” to underwriters, in form and substance
reasonably satisfactory to the Initial Purchasers, with respect to the financial statements and
certain financial information contained in each of the Time of Sale Information and the
Offering Memorandum;
(j) the Initial Purchasers shall have received on and as of the Closing Date (i) an
opinion and Rule 10b-5 disclosure letter from Latham & Watkins (London) LLP, as United
States counsel for the Initial Purchasers and (ii) an opinion from Latham & Watkins (London)
LLP, as English counsel for the Initial Purchasers, and, in each case, the Issuer and the Issue
Date Guarantors shall have furnished to such counsel such documents and information as they
may reasonably request to enable them to pass upon such matters;
(k) the Initial Purchasers shall have received on and as of the Closing Date an
opinion from A&L Goodbody, as Irish counsel for the Initial Purchasers, and the Issuer and
the Issue Date Guarantors shall have furnished to such counsel such documents and information
as they may reasonably request to enable them to pass upon such matters;
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(l) the Initial Purchasers shall have received on and as of the Closing Date an
opinion from NautaDutilh, as Luxembourg counsel for the Initial Purchasers, and the Issuer
and the Issue Date Guarantors shall have furnished to such counsel such documents and
information as they may reasonably request to enable them to pass upon such matters;
(m) the Dollar Notes shall be eligible for clearance and settlement through the
facilities of DTC, and the Euro Notes shall be eligible for clearance and settlement through the
facilities of Euroclear and Clearstream;
(n) the Indenture (in form and substance satisfactory to the Initial Purchasers) shall
have been duly executed and delivered by the Issuer, each of the Issue Date Guarantors and the
Trustee on the Closing Date and shall be in full force and effect on such date and the Notes
shall have been duly executed and delivered by the Issuer and each of the Issue Date Guarantors
and duly authenticated by the Trustee on the Closing Date;
(o) the Security Documents (in form and substance satisfactory to the Initial
Purchasers) shall have been duly executed and delivered by the parties thereto, the security
interests created pursuant thereto shall be effective and the Security Agent shall hold a valid
and perfected security interest in the Collateral securing the obligations of the Issuer and the
other entities party thereto, as applicable, in each case, for the benefit of the Trustee and the
benefit of holders of the Securities on or prior to, and as of, the Closing Date, subject in each
case to the Agreed Security Principles and such subsequent perfection of security pursuant to
applicable law or the provisions of the relevant Security Documents;
(p) the Intercreditor Agreement shall have been duly authorized, executed and
delivered by the parties which are intended to become parties thereto on or prior to the Closing
Date;
(q) each of the Escrow Agreement and the Escrow Equity Commitment (in form
and substance reasonably satisfactory to the Initial Purchasers) shall have been duly executed
and delivered by the parties thereto and shall be in full force and effect at the Closing Date;
(r) on or prior to the Closing Date, the Issuer shall have furnished to the Initial
Purchasers executed copies, in all respects reasonably satisfactory to the Initial Purchasers, of
the Transaction Documents;
(s) on or prior to the Closing Date, each of the Issuer and the Issue Date
Guarantors shall have furnished or caused to be furnished to the Initial Purchasers on the
Closing Date a certificate signed by an officer or a member of the board of directors (or
equivalent body) of such Issuer or Issue Date Guarantors, dated as of the Closing Date, in form
and substance satisfactory to the Initial Purchasers (an “Officer’s Certificate”) and which shall
include the following documents: (i) a copy of the constitutional documents of such Issuer or
Guarantor, (ii) a copy of the resolutions of the board of directors or equivalent body relating to
the Notes and the Guarantees (including entry into this Agreement and the related documents
for the offering of the Notes), (iii) a specimen of the signature of persons authorized by the
resolution referred to in clause (ii) above and (iv) a letter of appointment for an agent of service
of process relating to the Indenture and this Agreement; and
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(t) on or prior to the Closing Date, the Issuer shall have furnished to the Initial
Purchasers such further certificates and documents as the Initial Purchasers shall reasonably
request.
6. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. The Issuer and each Guarantor, jointly
and severally, agree to indemnify and hold harmless each Initial Purchaser, its affiliates,
directors, officers and employees and each person, if any, who controls any Initial Purchaser
within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage,
liability or expense, as incurred, to which such Initial Purchaser, affiliate, director, officer,
employee or controlling person may become subject, under the Securities Act, the Exchange
Act or other national, federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent
of the Issuer (not to be unreasonably withheld)), insofar as such loss, claim, damage, liability
or expense (or actions in respect thereof as contemplated below), joint or several, arises out of
or is based upon any untrue statement or alleged untrue statement of a material fact contained
in any of the Preliminary Offering Memorandum, any other Time of Sale Information, any
Issuer Written Communication or the Offering Memorandum (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; and to reimburse each Initial Purchaser and each such affiliate, director,
officer, employee or controlling person for any and all reasonable expenses (including the
reasonable fees and disbursements of counsel chosen by the Initial Purchasers) as such
expenses are reasonably incurred by such Initial Purchaser or such affiliate, director, officer,
employee or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action; provided,
however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability, expense or action to the extent, but only to the extent, arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with written information furnished to the Issuer by such Initial
Purchaser through the Representatives expressly for use in the Time of Sale Information, any
Issuer Written Communication or the Offering Memorandum (or any amendment or
supplement thereto) (which information consists solely of the information described in
Section 13(a) hereof). The indemnity agreement set forth in this Section 6(a) shall be in
addition to any liabilities that the Issuer or the Guarantors may otherwise have.
(b) Indemnification of the Issuer and the Guarantors. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless (i) as of the date hereof, the Issuer
and each Issue Date Guarantor, and upon its accession to this Agreement pursuant to Section 25
hereof, each Post-Completion Guarantor, (ii) as of the date hereof, the employees, directors
and officers of the Issuer and each Issue Date Guarantor, and upon its accession to this
Agreement pursuant to Section 25 hereof, the employees, directors and officers of each Post-
Completion Guarantor, and (iii) as of the date hereof with respect to the Issuer and each Issue
Date Guarantor, and upon its accession to this Agreement pursuant to Section 25 hereof with
respect to each Post-Completion Guarantor, each person, if any, who controls the Issuer and
each Issue Date Guarantor or Post-Completion Guarantor, in each case within the meaning of
the Securities Act or the Exchange Act, to the same extent as the indemnity set forth in
paragraph (a) above from the Issuer and each of the Guarantors to each Initial Purchaser,
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against any loss, claim, damage, liability or expense, as incurred, to which the Issuer or any
Guarantor, as applicable, or any such employee, director, officer or controlling person may
become subject, under the Securities Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of such Initial Purchaser (not to be
unreasonably withheld)), insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in the Time of Sale Information, any
Issuer Written Communication or the Offering Memorandum (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made in the Time
of Sale Information, any Issuer Written Communication or the Offering Memorandum (or any
amendment or supplement thereto), in reliance upon and in conformity with written
information furnished to the Issuer and the Guarantors by such Initial Purchaser through the
Representatives expressly for use therein; and to reimburse the Issuer, any Guarantor and each
such employee, director, officer or controlling person for any and all reasonable expenses
(including the reasonable fees and disbursements of counsel) as such expenses are reasonably
incurred by the Issuer or any Guarantor or such employee, director, officer or controlling person
in connection with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action. The Issuer and the Guarantors hereby acknowledge
that the only information that the Initial Purchasers have furnished to the Issuer expressly for
use in the Time of Sale Information, any Issuer Written Communication or the Offering
Memorandum (or any amendment or supplement thereto) are the statements identified in
Section 13(a) hereof. The indemnity agreement set forth in this Section 6(b) shall be in addition
to any liabilities that each Initial Purchaser may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 6 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 6, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party under this Section 6, except to
the extent it is materially prejudiced by such failure (through the forfeiture of substantive rights
or defenses) and shall not relieve the indemnifying party from any liability that the
indemnifying party may have to an indemnified party other than under this Section 6. In case
any such action is brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled
to participate in and, to the extent that it shall elect, jointly with all other indemnifying parties
similarly notified, by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the defendants in any
such action include both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between them, a conflict
may arise between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those available to the
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indemnifying party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party’s election so to assume the defense
of such action and approval by the indemnified party of counsel, the indemnifying party will
not be liable to such indemnified party under this Section 6 for any fees or expenses of counsel
subsequently incurred by such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel (together with one local counsel
(in each applicable jurisdiction)), which shall be selected by the Initial Purchasers (in the case
of counsel representing the Initial Purchasers or their related persons), representing the
indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 6 shall not be liable for
any settlement of any proceeding effected without its written consent (not to be unreasonably
withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement, compromise
or consent to the entry of judgment in any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a party and indemnity was or
could have been sought hereunder by such indemnified party, unless such settlement,
compromise or consent (i) includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does
not include any statements as to or any admission or findings of fault, culpability or failure to
act by or on behalf of any indemnified party.
(e) Contribution. If the indemnification provided for in paragraphs (a) and (b) of
this Section 6 is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by
the Issuer and the Guarantors on the one hand and the Initial Purchasers on the other hand from
the offering of the Notes or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuer and the Guarantors on the
one hand and the Initial Purchasers on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Issuer and the Guarantors on
the one hand and the Initial Purchasers on the other shall be deemed to be in the same respective
proportions as the net proceeds from the Offering (before deducting expenses) received by the
Issuer, and the total discounts and commissions received by the Initial Purchasers, bear to the
aggregate offering price of the Notes. The relative fault of the Issuer and the Guarantors on
the one hand and the Initial Purchasers on the other shall be determined by reference to, among
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other things, whether the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied by the Issuer or any
Guarantor or by the Initial Purchasers and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(f) Limitation of Liability. The Issuer, the Guarantors and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, in no event shall an Initial Purchaser be required to contribute any
amount in excess of the amount by which the total price at which the Notes purchased by it
were offered exceeds the amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Initial Purchasers’ obligations to
contribute pursuant to this Section 6 are several in proportion to the respective principal amount
of the Notes set forth opposite their names in Schedule I hereto, and not joint.
(g) The remedies provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party at law or in
equity.
7. Recourse against the Issuer.
(a) Each Initial Purchaser hereby agrees that no recourse under any obligation,
covenant or agreement of the Issuer contained in this Agreement shall be had against any
officer, agent, employee or director of the Issuer, by the enforcement of any assessment or by
any proceeding, by virtue of any statute or otherwise, it being expressly agreed and understood
that such obligations under this Agreement are corporate obligations of the Issuer and the
Guarantors.
(b) Each Initial Purchaser further agrees not to take any action or commence any
proceedings for bankruptcy, insolvency, winding-up, liquidation, examinership or any
analogous proceedings with respect to the Issuer.
8. Survival. The respective indemnities, rights of contribution contained in
Section 6, reimbursement rights contained in Section 11, representations, warranties,
agreements and other statements of the Issuer, the Issue Date Guarantors, the Post-Completion
Guarantors (upon their accession pursuant to Section 25 hereof), the officers of the Issuer or a
Guarantor and of each Initial Purchaser set forth in this Agreement shall survive the delivery
of and payment for the Notes and shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any
Initial Purchaser or any person controlling any Initial Purchaser or by or on behalf of the Issuer
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or a Guarantor, their respective officers, directors or any other person controlling the Issuer or
a Guarantor and (iii) acceptance of and payment for any of the Notes.
9. Termination. Notwithstanding anything herein contained, this Agreement may
be terminated in the absolute discretion of the Representatives, by notice given to the Issuer, if
after the execution and delivery of this Agreement and prior to the Closing Date: (i) trading
generally shall have been suspended or materially limited on any of the New York Stock
Exchange, the London Stock Exchange or the over-the- counter market; (ii) trading of any
securities of or guaranteed by the Issuer or the Target or any of its subsidiaries shall have been
suspended on any exchange or in any over-the-counter market or settlement in such trading
shall have been materially disrupted; (iii) a general moratorium on commercial banking
activities shall have been declared by United States Federal or New York State authorities or
by the competent governmental or regulatory authorities in the United Kingdom; (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in the United States
or the United Kingdom financial markets or any calamity, crisis, or emergency either within or
outside the United States that, in the reasonable judgment of the Representatives is material
and adverse and which, in the reasonable judgment of such Representative, makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the
terms and in the manner contemplated by this Agreement, the Time of Sale Information and
the Offering Memorandum or (v) a material adverse change shall have occurred in the United
States or the United Kingdom taxation affecting the Notes or the transfer thereof (other than as
disclosed in the Time of Sale Information and the Offering Memorandum) or exchange controls
shall have been imposed by the United States or the United Kingdom.
10. Default by an Initial Purchaser.
(a) If, on the Closing Date, any Initial Purchaser defaults on its obligation to
purchase the Notes that it has agreed to purchase hereunder, the non-defaulting Initial
Purchasers may in their discretion arrange for the purchase of such Notes by other persons
satisfactory to the Issuer on the terms contained in this Agreement. If, within 36 hours after
any such default by any Initial Purchaser, the non-defaulting Initial Purchasers do not arrange
for the purchase of such Notes, then the Issuer shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to such non-defaulting Initial Purchasers to
purchase such Notes on such terms. If other persons become obligated or agree to purchase
the Notes of a defaulting Initial Purchaser, either the non-defaulting Initial Purchasers or the
Issuer may postpone the Closing Date for up to five full Business Days in order to effect any
changes that in the opinion of counsel for the Issuer or counsel for the Initial Purchasers may
be necessary in the Time of Sale Information, the Offering Memorandum or in any other
document or arrangement, and the Issuer agrees to promptly prepare any amendment or
supplement to the Time of Sale Information or the Offering Memorandum that effects any such
changes. As used in this Agreement, the term “Initial Purchaser” includes, for all purposes of
this Agreement unless the context otherwise requires, any person not listed in Schedule I hereto
that, pursuant to this Section 10, purchases Notes that a defaulting Initial Purchaser agreed but
failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Notes of a
defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and
the Issuer as provided in paragraph (a) above, the aggregate principal amount of such Notes
that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Notes, then the Issuer shall have the right to require each non-defaulting Initial Purchaser
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to purchase the principal amount of Notes that such Initial Purchaser agreed to purchase
hereunder plus such Initial Purchaser’s pro rata share (based on the principal amount of Notes
that such Initial Purchaser agreed to purchase hereunder) of the Notes of such defaulting Initial
Purchaser or Initial Purchasers for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Notes of a
defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and
the Issuer as provided in paragraph (a) above, the aggregate principal amount of the Notes that
remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Notes
or if the Issuer shall not exercise the rights described in paragraph (b) above, then this
Agreement shall terminate without liability on the part of any non-defaulting Initial Purchasers.
Any termination of this Agreement pursuant to this Section 10 shall be without liability on the
part of the Issuer or the Guarantors, except that the Issuer and each of the Guarantors will
continue to be liable for the payment of expenses as set forth in Section 11 hereof and except
that the provisions of Section 6 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial Purchaser of any
liability it may have to the Issuer, the Guarantors or any non-defaulting Initial Purchaser for
damages caused by its default.
11. Reimbursement of Costs and Expenses. If this Agreement (i) is terminated
pursuant to Section 9 or (ii) shall be terminated by the Initial Purchasers, or any of them, (x)
because of any failure or refusal on the part of the Issuer to comply with the terms or to fulfill
any of the conditions of this Agreement, or (y) if for any reason the Issuer shall be unable to
perform its obligations under this Agreement or any condition of the Initial Purchasers’
obligations cannot be fulfilled, the Issuer and the Guarantors jointly and severally agree to
reimburse the Initial Purchasers or such Initial Purchaser as has so terminated this Agreement
with respect to itself for all out-of-pocket costs and expenses (including the reasonable fees
and expenses of its counsel) reasonably incurred by such Initial Purchaser in connection with
this Agreement or the offering contemplated hereunder.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the Issuer, the Guarantors, the Initial Purchasers, each affiliate
of any Initial Purchaser which assists such Initial Purchaser in the distribution of the Notes
(including the Indemnified Persons referred to in Section 6 hereof), any controlling persons
referred to herein and their respective successors and assigns. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any other person, firm or corporation
any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Notes from any Initial Purchaser shall be deemed
to be a successor by reason merely of such purchase.
13. Miscellaneous.
(a) Blood Letter. The parties hereto acknowledge and agree that, for all purposes
of this Agreement, the information furnished to the Issuer by the Initial Purchasers for inclusion
in each of the Time of Sale Information and the Offering Memorandum, consists solely of:
(i) the names of the Initial Purchasers in each of the Preliminary Offering
Memorandum, in the Time of Sale Information and the Offering Memorandum;
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(ii) the information under the heading “Stabilisation” in each of the
Preliminary Offering Memorandum, in the Time of Sale Information and the Offering
Memorandum; and
(iii) under the heading “Plan of Distribution” of the Preliminary Offering
Memorandum, in the Time of Sale Information and the Offering Memorandum, each
of the fourth, fifth, thirteenth, sixteenth, seventeenth, eighteenth (other than the first
sentence thereof) and nineteenth paragraphs thereof and the fourth sentence of the
twelfth paragraph thereof.
(b) Waiver of Immunity. To the extent that the Issuer or any of the Guarantors or
any of their properties, assets or revenues may have or may hereafter become entitled to, or
have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from
any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit
or proceeding, from set-off or counterclaim, from the competent jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment in aid of
execution of judgment, or from execution of judgment, or other legal process or proceeding for
the giving of any relief or for the enforcement of any judgment, in any competent jurisdiction
in which proceedings may at any time be commenced, with respect to their obligations,
liabilities or any other matter under or arising out of or in connection with this Agreement, any
of the Transaction Documents or any of the transactions contemplated hereby or thereby, the
Issuer and each of the Guarantors hereby irrevocably and unconditionally waive, and agree not
to plead or claim, any such immunity and consent to such relief and enforcement.
(c) Jurisdiction. The Issuer and each of the Guarantors irrevocably submit
to the non-exclusive jurisdiction of any U.S. Federal or New York State court in the Borough
of Manhattan in the City, County and State of New York, United States of America, in any
legal suit, action or proceeding based on or arising under this Agreement and agree that all
claims in respect of such suit or proceeding may be determined in any such court. The Issuer
and each of the Guarantors irrevocably waive the defense of an inconvenient forum or
objections to personal jurisdiction with respect to the maintenance of such legal suit, action or
proceeding. To the extent permitted by law, the Issuer and each of the Guarantors hereby waive
any objections to the enforcement by any competent court in Ireland and England and Wales
(as applicable) of any judgment validly obtained in any such court in New York on the basis
of any such legal suit, action or proceeding. Each of the Issuer and the Guarantors hereby
appoint CCS Global Solutions, Inc., with offices located at 530 Seventh Avenue, Suite 508
New York, New York 10018, as its authorized agent in any manner permitted by applicable
law (the “Authorized Agent”) upon whom process may be served in any such legal suit, action
or proceeding. Each of the Issuer and the Guarantors hereby represents and warrants that the
Authorized Agent has agreed to act as said agent for service of process, and the Issuer and the
Guarantors agree to take any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force and effect as
aforesaid. The Issuer and the Guarantors further agree that service of process upon the
Authorized Agent and written notice of said service to the Issuer and the Guarantors shall be
deemed in every respect effective service of process upon the Issuer and the Guarantors in any
such legal suit, action or proceeding. If for any reason the Authorized Agent shall cease to act
as such, the Issuer and the Guarantors each agrees to promptly designate a new designee,
appointee and agent in New York City on the terms and for the purposes of this provision
satisfactory to the Representatives under this Agreement. Nothing herein shall affect the right
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of any Initial Purchaser or any person controlling any Initial Purchaser to serve process in any
other manner permitted by law. The provisions of this Section 13(c) are intended to be
effective upon the execution of this Agreement without any further action by the Issuer or any
of the Guarantors and the introduction of a true copy of this Agreement into evidence shall be
conclusive and final evidence as to such matters.
(d) Waiver of Jury Trial. Each of the Issuer, the Guarantors and the Initial
Purchasers hereby irrevocably waives, to the fullest extent permitted by applicable law, any
and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby.
(e) Currency. The Issuer and each of the Guarantors shall jointly and severally
indemnify and hold harmless the Initial Purchasers against any loss incurred by them as a result
of any judgment or order being given or made and expressed and paid in a currency (the
“Judgment Currency”) other than euro and as a result of any variation as between (i) the rate
of exchange at which the euro amount, as the case may be, is converted into the Judgment
Currency for the purpose of such judgment or order and (ii) the spot rate of exchange in New
York, New York at which such Initial Purchasers on the first Business Day after the payment
of such judgment or order are able to purchase euro, as the case may be, with the amount of
the Judgment Currency actually received by such Initial Purchasers. The foregoing shall
constitute a separate and independent obligation of the Issuer and the Guarantors and shall
continue in full force and effect notwithstanding any such judgment or order as aforesaid. The
term “spot rate of exchange” as used in this paragraph shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, euro, as the case may
be.
14. Recognition of Bail-In.
(a) Contractual Acknowledgment.
Notwithstanding and to the exclusion of any other term of this Agreement or any other
agreements, arrangements or understanding between the Initial Purchasers and the Issuer and
the Guarantors, each of the Initial Purchasers, the Issuer and the Guarantors acknowledges and
accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of
Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees
to be bound by:
(i) the effect of the exercise of Bail-in Powers by the Relevant Resolution
Authority in relation to any BRRD Liability of the Initial Purchasers to the Issuer or a
Guarantor, as applicable, under this Agreement, that (without limitation) may include
and result in any of the following, or some combination thereof:
a. the reduction of all, or a portion, of the BRRD Liability or
outstanding amounts due thereon;
b. the conversion of all, or a portion, of the BRRD Liability into
shares, other securities or other obligations of the relevant Initial
Purchaser(s) or another person, and the issue to or conferral on
the Issuer or a Guarantor, as applicable, of such shares, securities
or obligations;
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c. the cancellation of the BRRD Liability;
d. the amendment or alteration of any interest, if applicable,
thereon, the maturity or the dates on which any payments are due,
including by suspending payment for a temporary period;
(ii) the variation of the terms of this Agreement, as deemed necessary by
the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by
the Relevant Resolution Authority.
(b) Definitions.
As used herein, the following terms shall have the following meanings:
“Bail-in Legislation” means in relation to a member state of the European Economic
Area which has implemented, or which at any time implements, the BRRD, the relevant
implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation
Schedule from time to time.
“Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU
Bail-in Legislation Schedule in relation to the relevant Bail-in Legislation.
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and
resolution of credit institutions and investment firms.
“BRRD Liability” means a liability in respect of which the relevant Bail-in Powers in
the applicable Bail-in Legislation may be exercised.
“EU Bail-in Legislation Schedule” means the document described as such, then in
effect, and published by the Loan Market Association (or any successor person) from time to
time at http://www.lma.eu.com/pages.aspx?p=499.
“Relevant Resolution Authority” means the resolution authority with the ability to
exercise any Bail-in Powers in relation to any of the Initial Purchasers
15. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Initial Purchaser that is a Covered Entity becomes subject
to a proceeding under a U.S. Special Resolution Regime, the transfer from such Initial
Purchaser of this Agreement, and any interest and obligation in or under this Agreement, will
be effective to the same extent as the transfer would be effective under the U.S. Special
Resolution Regime if this Agreement, and any such interest and obligation, were governed by
the laws of the United States or a state of the United States.
(b) In the event that any Initial Purchaser that is a Covered Entity or a Covered
Affiliate of such Initial Purchaser becomes subject to a proceeding under a U.S. Special
Resolution Regime, any Default Rights under this Agreement that may be exercised against
such Initial Purchaser are permitted to be exercised to no greater extent than such Default
Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were
governed by the laws of the United States or a state of the United States.
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(c) For purposes of this Section 15:
(i) “Covered Affiliate” has the meaning assigned to the term “affiliate” in, and
shall be interpreted in accordance with, 12 U.S.C. § 1841(k);
(ii) “Covered Entity” means any of the following:
(1) a “covered entity” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 252.82(b)
(2) a “covered bank” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 47.3(b); or
(3) a “covered FSI” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 382.2(b);
(iii) “Default Right” has the meaning assigned to that term in, and shall be
interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable; and
(iv) “U.S. Special Resolution Regime” means each of (i) the U.S. Federal
Deposit Insurance Act and the regulations promulgated thereunder and (ii)
Title II of the U.S. Dodd-Frank Wall Street Reform and Consumer
Protection Act and the regulations promulgated thereunder.
The provisions of this Section 15 shall remain in full force and effect notwithstanding
completion and shall survive the termination or cancellation of this Agreement.
16. Notices. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Initial Purchasers shall be given (i) with respect to the Euro
Notes, to Deutsche Bank AG, London Branch, Winchester House, 1 Great Winchester Street,
London EC2N 2DB, United Kingdom, Attention: , Leverage Debt Capital Markets
(telephone number: ; Email: @db.com), and Merrill Lynch
International, 2 King Edward Street, London, EC1A 1HQ, United Kingdom, Attention: High
Yield Syndicate Desk (telephone number: ; facsimile:
); and (ii) with respect to the Dollar Notes, to Deutsche Bank AG, London Branch,
Winchester House, 1 Great Winchester Street, London EC2N 2DB, United Kingdom,
Attention: , Leverage Debt Capital Markets (telephone number:
; Email: @db.com); and in each case, with a copy to Latham & Watkins
(London) LLP, 99 Bishopsgate, London EC2M 3XF, attention: (telefax
number: ). Notices to the Issuer and the Guarantors shall be given to them
at Motion Acquisition Limited, 35 Great St. Helen’s, London, EC3A 6AP, United Kingdom,
attention: (telephone number: ), with a copy to Kirkland
& Ellis International LLP, 30 St Mary Axe, London EC3A 8AF, attention:
(telefax number: ).
17. Counterparts. This Agreement may be signed in counterparts (which may
include counterparts delivered by any standard form of telecommunication, including, without
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limitation electronic transmission), each of which shall be an original and all of which together
shall constitute one and the same instrument.
18. Governing Law. THIS AGREEMENT AND ANY NON-CONTRACTUAL
OBLIGATION, CLAIM, CONTROVERSY OR DISPUTE ARISING OUT OF OR
RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
19. Headings. The headings herein are included for convenience of reference only
and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
20. Certain Agreements of the Guarantors. Each Guarantor agrees with the several
Initial Purchasers that, notwithstanding anything to the contrary in this Agreement, the
obligations of any Guarantor under this Agreement shall be limited to the extent of the
limitations (if any) set out in Schedule V hereto.
21. Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any event be
effective unless the same shall be in writing and signed by the parties hereto.
22. Authority of Representative. Any action by the Initial Purchasers hereunder
may be taken by the Representatives on behalf of the Initial Purchasers, and any such action
taken by the Representatives shall be binding upon the Initial Purchasers.
23. Co-Manufacturing Agreement. Solely for the purposes of the requirements of
Article 9(8) of the MiFID Product Governance rules under EU Delegated Directive 2017/593
(the “Product Governance Rules”) regarding the mutual responsibilities of manufacturers under
the Product Governance Rules, each of the Euro Initial Purchasers other than Barclays Bank
PLC and UniCredit Bank AG (each a “Manufacturer” and together the “Manufacturers”)
acknowledges to each other Manufacturer that it understands the responsibilities conferred
upon it under the Product Governance Rules relating to each of the product approval process,
the target market and the proposed distribution channels as applying to the Notes and the related
information set out in the Time of Sale Information and the Offering Memorandum in
connection with the Notes. The Issuer, the Guarantors, Barclays Bank PLC and UniCredit
Bank AG note the application of the Product Governance Rules and acknowledge the target
market and distribution channels identified as applying to the Notes by the Manufacturers and
the related information set out in the Time of Sale Information and the Offering Memorandum
in connection with the Notes.
24. Exemption from Italian Transparency Rules. For purposes of the transparency
provisions set forth in the CICR Resolution of March 4, 2003, as amended from time to time,
and in the transparency rules applicable to transactions and banking and financial services
(“Disposizioni sulla trasparenza delle operazioni e dei servizi bancari e finanziari. Correttezza
delle relazioni tra intermediari e clienti”) issued by the Bank of Italy and as amended from
time to time, the parties hereto acknowledge and confirm that each has appointed and been
assisted by its respective legal counsel in connection with the negotiation, preparation and
execution of this Agreement and this Agreement and all the terms and conditions hereof,
including the Recitals and the Schedules hereto, have been specifically negotiated (“oggetto di
trattativa individuale”) between the parties.
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25. Accession of Post-Completion Guarantors. This Agreement shall become
effective as to each of the Post-Completion Guarantors on the date of its accession to this
Agreement in each case upon execution and delivery by each of them of an Accession
Agreement substantially in the form of Annex C hereto and as may be amended to observe
applicable execution formalities and limitations on the enforceability of guarantees. Upon
execution and delivery of the applicable Accession Agreement, each Post-Completion
Guarantor agrees to be bound by the terms, conditions and other provisions of this Agreement
as described in such Accession Agreement, with all attendant rights, duties and obligations
stated herein, with the same force and effect as if such party had executed this Agreement on
the date hereof. For the avoidance of doubt, the representations, warranties, covenants,
stipulations, promises, agreements, and other obligations of each of the Post-Completion
Guarantors contained in this Agreement shall not become effective until the execution of an
Accession Agreement.
26. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday
or a day on which commercial banking institutions are not required to be open in the State of
New York or, London, United Kingdom, or, with respect to any payments to be made on the
Euro Notes, at the place of payment in respect of the Euro Notes.
“Commission” shall mean the U.S. Securities and Exchange Commission.
“Offering” shall mean the offer by the Issuer to sell $410 million principal amount of
its 6.625% Senior Notes due 2027 and €370 million principal amount of its 4.500% Senior
Notes due 2027.
“Offering Memorandum Date” shall mean the date on which the Offering
Memorandum is dated.
“Relevant Taxing Jurisdiction” means (a) the United Kingdom, the United States,
Denmark, Germany, Italy, Luxembourg or Ireland or any political subdivision or any authority
or agency therein or thereof having power to tax, (b) any other jurisdiction in which the Issuer
or a Guarantor, as the case may be, is organized or resident for tax purposes or any political
subdivision or any authority or agency therein or thereof having power to tax, or (c) any
jurisdiction from or through which a payment is made by the Issuer or any Guarantor under or
with respect to the Notes or the Guarantees, or any political subdivision or any authority or
agency therein or thereof having power to tax.
“U.S. Companies” means, collectively, LEGOLAND California, LLC, Merlin
Entertainments Group Florida LLC, Madame Tussauds New York LLC, LEGOLAND
Discovery Centre US, LLC, Madame Tussaud Las Vegas LLC, LEGOLAND New York LLC,
SEA LIFE Minnesota LLC, SEA LIFE US LLC, Merlin Entertainments Group U.S. Holdings
Inc. and Merlin Entertainments North America LLC.
“VAT” means value added tax chargeable under or pursuant to Council Directive
2006/112/EC or the Sixth Council Directive of the European Communities and any other
similar tax, wherever imposed.
MIZUHO SECURITIES EUROPE GMBH
As an Initial Purchas
By: Name: Title:
By:
Name: Title:
[Signature Page to the Purchase Agreement]
UNICREDIT BANK AG
As an Initial Purchaser
By: NameTitle:
[Signature Page to the Purchase Agreement]
(Signature Page to the Purchase Agreement)
EU-DOCS\25771403.12
SCHEDULE I
Part A – Euro Initial Purchasers
Euro Initial Purchasers
Principal
Amount of the
Euro Notes to be
purchased
(expressed in €)
Euro Initial Purchasers’ Fees
(expressed as
percentage of the
gross proceeds of
the Euro Notes)
(expressed in €)
Representatives
Deutsche Bank AG, London
Branch 92,500,000 25% 1,850,000
Merrill Lynch International 92,500,000 25% 1,850,000
Other Initial Purchasers
Barclays Bank PLC ...................... 27,750,000 7.5% 555,000
Blackstone Advisory Partners
L.P. ............................................... 74,000,000 20% 1,480,000
HSBC Bank plc 27,750,000 7.5% 555,000
Mizuho Securities Europe GmbH 27,750,000 7.5% 555,000
UniCredit Bank AG ..................... 27,750,000 7.5% 555,000
Total: €370,000,000 100% €7,400,000
Part B – Dollar Initial Purchasers
Dollar Initial Purchasers
Principal
Amount of the
Dollar Notes to
be purchased
(expressed in $)
Dollar Initial Purchasers’ Fees
(expressed as
percentage of the
gross proceeds of
the Dollar Notes)
(expressed in $)
Representative
Deutsche Bank AG, London
Branch 102,500,000 25% 2,050,000
Other Initial Purchasers
Barclays Bank PLC ...................... 30,750,000 7.5% 615,000
Blackstone Advisory Partners
L.P. ............................................... 82,000,000 20% 1,640,000
BofA Securities, Inc. 102,500,000 25% 2,050,000
HSBC Bank plc 30,750,000 7.5% 615,000
Mizuho Securities USA LLC ....... 30,750,000 7.5% 615,000
UniCredit Bank AG ..................... 30,750,000 7.5% 615,000
Total: $410,000,000 100% $8,200,000
EU-DOCS\25771403.12
SCHEDULE II
Post-Completion Guarantors
Name Jurisdiction
Merlin Entertainments plc England and Wales
Heide-Park Soltau GmbH Germany
LEGOLAND Deutschland Freizeitpark GmbH Germany
Legoland Deutschland GmbH Germany
Sea Life Deutschland GmbH Germany
Madame Tussauds Deutschland GmbH Germany
Dungeon Deutschland GmbH Germany
LEGOLAND ApS Denmark
Gardaland S.r.l. Italy
Merlin Attractions Operations Limited England and Wales
Merlin Entertainments (SEA LIFE) Limited England and Wales
Merlin Entertainments (Dungeons) Limited England and Wales
Merlin Entertainments Group Holdings Limited England and Wales
Madame Tussauds Touring Exhibition Limited England and Wales
LEGOLAND California, LLC Delaware
Merlin Entertainments Group Florida LLC Delaware
Madame Tussaud’s New York LLC Delaware
LEGOLAND Discovery Centre US, LLC Delaware
Madame Tussaud Las Vegas LLC Delaware
Sea Life Minnesota LLC Delaware
Sea Life US LLC Delaware
Merlin Entertainments Group U.S. Holdings Inc. Delaware
Merlin Entertainments North America LLC Delaware
LEGOLAND New York LLC Delaware
EU-DOCS\25771403.12
SCHEDULE III
List of Security Documents
Pledgor/Assignor Governing Law Security Document
Motion Topco Limited
English A debenture in respect of (i)
a charge over Topco’s shares
in Midco and (ii) an
assignment of material
structural intercompany
receivables owed by Midco
to Topco
Motion Midco Limited
English A debenture in respect of (i)
a floating charge over
Midco’s assets and
undertaking, (ii) an
assignment of material
structural intercompany
receivables owed to Midco
(other than by Bidco) and
(iii) a charge over Midco’s
material bank accounts
Motion Midco Limited English A debenture in respect of (i)
a charge in respect of
Midco’s shares in Bidco and
(ii) an assignment of material
structural intercompany
receivables owed by Bidco
to Midco
Motion Midco Limited Irish A security deed in respect of
Midco’s shares in the Issuer
Motion Bondco DAC
English A debenture in respect of an
assignment of material
structural intercompany
receivables owed by Midco
to the Issuer
Motion Bondco DAC Irish A security deed in respect of
the Issuer’s material bank
accounts
Motion Bondco DAC English Escrow account charges in
respect of the Escrow
Accounts
56 EU-DOCS\25771403.12
SCHEDULE IV
List of jurisdictions for delivery of opinions by local counsel to the Issuer and the
Guarantors
Jurisdiction Counsel
Denmark DLA Piper Denmark P/S
Germany DLA Piper UK LLP
Italy DLA Piper Studio Legale Tributario
Associato
Luxembourg Arendt
KE 103756610.4 EU-DOCS\25771403.12
SCHEDULE V
Guarantee Limitations
Part I
Limitation on Guarantors
Any Guarantee granted under this Agreement does not apply to any liability to the extent that
it would result in such Guarantee constituting unlawful financial assistance within the meaning
of sections 678 or 679 of the Companies Act 2006 or any equivalent and applicable provisions
under the laws of the jurisdiction of the relevant Guarantor.
Part II
Limitation on Danish Guarantees
(a) Notwithstanding anything set out to the contrary in this Agreement or any
other Secured Debt Document, the Specified Obligations (as defined below) of each
Guarantor incorporated in Denmark (a “Danish Guarantor”) and such Danish Guarantor's
Subsidiaries under the Secured Debt Documents:
(i) shall be deemed not to be assumed and limited if and to the extent that
the same would constitute unlawful financial assistance, including
(without limitation) within the meaning of sections 206 and/or 210 (as
modified by sections 211 and 212) of the Danish Companies Act,
(b) Without prejudice to sub-paragraph (a) above, and only in respect of each
Danish Guarantor, the Specified Obligations shall further be limited to a maximum amount
equivalent to the higher of the Equity (as defined below) of such Danish Guarantor:
(i) at the relevant Specified Obligations Call Date (as defined below); and
(ii) at the date of this Agreement (or, as the case may be, at the date upon
which that Danish Guarantor accedes to this Agreement as a Guarantor)
plus any Indirect Utilisations (as defined below) as of the relevant Specified
Obligations Call Date,
provided that the limitations in this paragraph (b) shall not apply to the extent that
the Specified Obligations relate to (x) the total outstanding amount in respect of an
advance or loan (including accrued and unpaid interest relating to such advance or
loan and costs and fees attributable to such advance or loan) under any Secured
Debt Document received by such Danish Guarantor in its capacity as borrower
(however defined or described in the relevant Secured Debt Document); and/or (y)
the total outstanding amount in respect of an advance or loan (including accrued
and unpaid interest relating to such advance or loan and costs and fees attributable
to such advance or loan) under any Secured Debt Documents received by such
Danish Guarantor’s Subsidiaries in their capacity as borrower (however defined or
described in the relevant Secured Debt Document).
58 EU-DOCS\25771403.12
For the purpose of this Part II:
“Equity” means the equity (in Danish: "egenkapital") of the relevant Danish
Guarantor calculated in accordance with its applicable accounting principles,
but adjusted if and to the extent any book value is lower or higher than the
market value by adding or subtracting (as applicable) an amount equal to such
difference.
“Indirect Utilisations” means the sum of:
(i) any intercompany loan (a “Debtor Intercompany Loan”) owing by a
Danish Guarantor to a borrower (however defined or described in the
relevant Secured Debt Document) and originally borrowed by that
borrower under any Secured Debt Document and on-lent by that borrower
to the Danish Guarantor, the total outstanding amount of the sum, at the
Specified Obligations Call Date, of
a. the principal amount of that Debtor Intercompany Loan;
b. accrued and unpaid interest in respect of that Debtor Intercompany
Loan; and
c. costs and fees attributable to that Debtor Intercompany Loan,
provided always that any payment made by the Danish Guarantor in
respect of the Specified Obligations on the basis of Indirect Utilisations
relating to that Debtor Intercompany Loan shall reduce that Debtor
Intercompany Loan correspondingly; plus
(ii) any intercompany loan (a “Subsidiary Intercompany Loan”) owing by
a Subsidiary of a Danish Guarantor to a borrower (however defined or
described in the relevant Secured Debt Document) and originally
borrowed by that borrower under any Secured Debt Document and on-lent
by that borrower to that Danish Guarantor’s Subsidiary, the total
outstanding amount of the sum, at the Specified Obligations Call Date, of
a. the principal amount of that Subsidiary Intercompany Loan;
b. accrued and unpaid interest in respect of that Subsidiary Intercompany
Loan; and
c. costs and fees attributable to that Subsidiary Intercompany Loan.
provided always that any payment made that Danish Guarantor’s
Subsidiary in respect of the Specified Obligations on the basis of Indirect
Utilisations relating to that Subsidiary Intercompany Loan shall reduce
that Subsidiary Intercompany Loan correspondingly.
"Secured Debt Document" has the meaning given to that term in the
Intercreditor Agreement.
59 EU-DOCS\25771403.12
"Specified Obligations" means, in respect of a Danish Guarantor or, as the case
may be, any of its Subsidiaries its obligations and liabilities under:
(i) Any Guarantee, any other guarantee, indemnity, Security granted or
purported to be granted by it under or pursuant to this Agreement or any other
Secured Debt Documents Document; and
(ii) any other means of direct or indirect financial assistance under or pursuant
to this Agreement or any other Secured Debt Document, including, without
limitation, obligations and liabilities under or pursuant to any provisions
relating to subordination, turnover, rights of re-course, mandatory
prepayments and other application of proceeds.
"Specified Obligations Call Date" means, in respect of a Danish Guarantor, the
date upon which any Secured Party makes any demand for payment of, or takes
any other step relating to the enforcement of, any of that Danish Guarantor 's
Specified Obligations in accordance with the Secured Debt Documents.
Part III
Limitations applying to German Guarantors
i. In this Part III:
“Accounting Principles” means generally accepted accounting principles in Germany,
including IFRS.
“Auditors’ Determination” shall have the meaning ascribed to that term in paragraph
(v) below.
“Enforcement Notice” shall have the meaning ascribed to that term in sub- paragraph
(iv) below.
“German Guarantor” means any Guarantor incorporated in Germany as (x) a limited
liability company (Gesellschaft mit beschränkter Haftung - GmbH) (a “German GmbH
Guarantor”) or (y) a limited partnership (Kommanditgesellschaft) with a limited
liability company as general partner (a “German GmbH & Co. KG Guarantor”) in
relation to whom the Representatives intend to demand payment under the indemnity
set out in Section 6 of this Agreement.
“Group” means the Target and its subsidiaries from time to time.
“Guaranteed Obligor” shall have the meaning ascribed to that term in sub- paragraph
(ii) below.
“Management Determination” shall have the meaning ascribed to that term in sub-
paragraph (iv) below.
“Net Assets” means the relevant company’s assets (Section 266 para.(2) A, B, C, D and
E German Commercial Code (Handelsgesetzbuch)), less the aggregate of its liabilities
(Section 266 para. (3) B (but disregarding any accruals (Rückstellungen)) in respect of
a potential enforcement of the Indemnity (as defined below) or any Security Document,
60 EU-DOCS\25771403.12
C, D and E German Commercial Code), the amount of profits (Gewinne) not available
for distribution to its shareholders in accordance with section 268 para. 8 German
Commercial Code and the amount of its stated share capital (Stammkapital).
“Subsidiary” means a subsidiary within the meaning of Section 17 German Stock
Corporation Act (Aktiengesetz).
ii. The Initial Purchasers and the Representatives agree not to enforce the indemnity
created under this Agreement by a German Guarantor (the “Indemnity”) if and to the
extent.
A. that this Indemnity secures any liability of an obligor which is an affiliate
(verbundenes Unternehmen) of that German Guarantor except for the liabilities of that
German Guarantor’s Subsidiaries (the “Down Stream Liabilities”) (other than liabilities
under this guarantee to the extent such Subsidiary’s guarantee does not secure Down
Stream Liabilities) (the “Guaranteed Obligor”); and
B. a payment under the indemnity would cause that German Guarantor’s (or, in the
case of a German GmbH & Co. KG Guarantor, its general partners’) Net Assets
(determined pursuant to paragraphs (iii), (iv) and/or (v) below) to be reduced below
zero, or further reduced if already below zero.
iii. For the purposes of the calculation of the Net Assets the following balance sheet items
shall be adjusted as follows:
A. the amount of any increase of the stated share capital (i) to the extent not fully
paid up and/or (ii) made out of the relevant German Guarantor’s earnings (Erhöhungen
des Stammkapitals aus Gesellschaftsmitteln) after the date hereof that has been effected
without the prior written consent of the Representatives, shall be deducted from the
stated share capital;
B. amounts owing to any member of the Group or any other affiliated company
which are subordinated by law or by contract to any Financial Indebtedness (as defined
in the Senior Facilities Agreement) outstanding under the Transaction Documents
(including, for the avoidance of doubt, obligations that would in an insolvency be
subordinated pursuant to section 39 para 1 no. 5 or section 39 para 2 of the German
Insolvency Code (Insolvenzordnung)) shall be disregarded, unless a waiver (Erlass) of
such loan provided to the relevant German Guarantor (or, in the case of a GmbH &
Co. KG Guarantor, its general partner) (A) would not be permitted under the
Transaction Documents or (B) would result in that member of the Group or other
affiliated company breaching its obligations under Section 30 GmbHG or any similar
provision of any other jurisdiction applicable to it;
C. liabilities incurred by the relevant German Guarantor in violation of the
Transaction Documents shall be disregarded.
iv. The relevant German Guarantor shall deliver to the Representatives, within 20 Business
Days after receipt from the Representatives of a payment demand under this Indemnity
(the “Enforcement Notice”), its up-to-date balance sheet, or in the case of a German
GmbH & Co. KG Guarantor its and its general partner’s balance sheet, together with a
detailed calculation of the amount of its Net Assets taking into account the adjustments
61 EU-DOCS\25771403.12
set forth in paragraph (iii) above (the “Management Determination”). The Management
Determination shall be prepared as of the date of receipt of the Enforcement Notice.
v. Following the Representatives’ receipt of the Management Determination, upon request
by the Representatives (acting reasonably), the relevant German Guarantor shall deliver
to the Representatives within 20 Business Days of such request its up-to-date balance
sheet, or in the case of a German GmbH & Co. KG Guarantor its and its general
partner’s balance sheet, drawn-up by its auditor together with a detailed calculation of
the amount of the Net Assets taking into account the adjustments set forth in paragraph
(iii) above (the “Auditors’ Determination”). Such balance sheet and Auditors’
Determination shall be prepared in accordance with the Accounting Principles as
consistently applied. The Auditors’ Determination shall be prepared as of the date of
receipt of the Enforcement Notice.
vi. The Representatives shall be entitled to demand payment under this Indemnity in an
amount which would, in accordance with the Management Determination or, if
applicable and taking into account any previous enforcement in accordance with the
Management Determination, the Auditors’ Determination, not cause a German
Guarantor’s Net Assets, or in the case of a German GmbH & Co. KG Guarantor, its
general partner’s Net Assets, to be reduced below zero or further reduced if already
below zero. If and to the extent that the Net Assets as determined by the Auditors’
Determination are lower than the amount enforced (A) in accordance with the
Management Determination or (B) without regard to the Management and/or Auditors’
Determination, the Representatives shall upon written demand by a German Guarantor
to the Representatives, repay to the relevant German Guarantor (or in case of a German
GmbH & Co. KG Guarantor to its general partner) such excess enforcement proceeds,
provided that such demand for repayment is made by the relevant German Guarantor
to the Representative within two months (Ausschlussfrist) after the Auditor’s
Determination has been delivered within twenty (20) Business Days as required by
paragraph (v) above.
vii. No reduction of the amount enforceable pursuant to this Part III will prejudice the right
of the Representatives to continue to enforce the Indemnity (subject always to the
operation of the limitations set out above at the time of such enforcement) until full
satisfaction of the claims under the Indenture.
viii. Each German Guarantor shall (and, in the case of a German GmbH & Co. KG
Guarantor, its general partner shall) use commercially reasonable endeavors to the
extent legally permitted to avoid the enforcement of the Indemnity created under this
Agreement becoming limited pursuant to the terms of this Part III and shall in particular
within three (3) months after receipt of the Enforcement Notice realize, to the extent
legally permitted and commercially justifiable and to the extent necessary to satisfy the
secured claims, any and all of its assets which are not required for the relevant German
Guarantor’s business (nicht betriebsnotwendig) that are shown in the balance sheet with
a book value (Buchwert) that is substantially lower than the market value of the relevant
assets if, as a result of the enforcement of the Indemnity, its Net Assets would be
reduced below zero or further reduced if already below zero.
ix. The restriction under paragraph (ii) above shall not apply:
62 EU-DOCS\25771403.12
A. to the extent that the Indemnity secures (A) any proceeds from the offering of
the Notes to the extent such proceeds are on-lent, actually disbursed to the relevant
German Guarantor or any of its Subsidiaries and not repaid;
B. for so long as the relevant German Guarantor has not complied its obligation to
deliver the Management Determination and the Auditor’s Determination, in each case
together with an up-to-date balance sheet, in accordance with the requirements set out
in paragraph (iv) and (v) above;
C. if the relevant German Guarantor (as dominated entity) is subject to a
domination and/or profit transfer agreement (Beherrschungs- und/oder
Gewinnabführungsvertrag) (a “DPTA”) with the Guaranteed Obligor, whether directly
or indirectly through a chain of DPTAs between each company and its shareholder (or
in case of a German GmbH & Co. KG Guarantor between its general partner and its
shareholder), unless the existence of such DPTA does not lead to the inapplicability of
section 30 para 1 of the German Limited Liability Companies Act (Gesetz betreffend
die Gesellschaften mit beschränkter Haftung);
D. if and to extent the relevant German Guarantor has on the date of enforcement
of the guarantees a fully recoverable indemnity or claim for refund (“vollwertiger
Gegenleistungs-oder Rückgewähranspruch”) against its shareholder or the Guaranteed
Obligor; or
E. if and to the extent that they are not necessary for the purposes of protecting a
German Guarantor’s directors according to section 30 para 1 of the German Limited
Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter
Haftung).
x. Based on the commercial projection regarding the relevant German Guarantor’s
liquidity and the probability of enforcement of the Indemnity (kaufmännische
Prognoseentscheidung) as of the date hereof, the parties to this Agreement assume that
the granting of the Indemnity hereunder will not result in illiquidity
(Zahlungsunfähigkeit) of any German Guarantor. Should new legislation or
jurisprudence of the Federal Court of Justice (BGH) come into force after the date
hereof and should such law or court ruling trigger a German Guarantor’s managing
directors’ liability pursuant to Sections 64 sentence 3 GmbHG or Section 826 German
Civil Code for the granting of the Indemnity, the Representatives shall upon the relevant
German Guarantor’s managing directors’ request enter into negotiations on possible
amendments to this Part III to the extent necessary to avoid the managing directors’
personal liability resulting from the granting of the Indemnity.
xi. This Part III shall not prevent any German Guarantor or its managing directors from
claiming in court that an enforcement of the Indemnity would trigger a liability of the
relevant German Guarantor’s managing directors pursuant to Sections 64 Sentence 3
GmbHG or Section 826 German Civil Code resulting from the granting of the
Indemnity. If and to the extent that an action is brought to a competent court either (A)
by the relevant German Guarantor’s managing directors within three (3) months after
an Enforcement Notice has been given or (B) by the Representatives, and if and to the
extent a court holds that the Indemnity triggers such liability in a final judgment (or
incidentally in such final judgment), the enforcement of the Indemnity shall be limited
to an amount that avoids such liability. If payments have already been made to the
63 EU-DOCS\25771403.12
Representatives, the Representatives shall repay to the relevant German Guarantor the
amount necessary to avoid such liability.
Part IV
Limitations for Italian Guarantors
For the purposes of this Part IV:
“Acquisition Amounts” means any amounts of the Notes the purpose or the actual use of which
is to finance, directly or indirectly, the acquisition of any Guarantor incorporated or established,
as the case may be, under the laws of the Republic of Italy (the “Italian Guarantor”) (or any of
its direct or indirect holding companies) and/or the subscription of any shares or quota in any
Italian Guarantor (or any of its direct or indirect holding companies) (or to refinance, directly
or indirectly, any existing indebtedness incurred for such purposes) and/or the payment of any
fees, costs and expenses, stamp, registration or other Taxes in connection therewith.
“Guaranteed Tranche” means the aggregate amount of the Notes other than the Acquisition
Amounts.
Notwithstanding any other provisions to the contrary in this Agreement, the guarantee granted
by any Italian Guarantor under the Guarantee shall not exceed an amount equal to the lower
of:
(a) the original principal amount of the Guaranteed Tranche reduced, from time to time, by
an amount equal to any redemption of the principal amount of the Notes multiplied by
the ratio of (I) the original principal amount of the Guaranteed Tranche to (II) the
original principal amount of the Notes; and;
(b) the aggregate amount of any intercompany loans (or any other financial support in any
form) which are made available from time to time to such Italian Guarantor (or any of
its direct or indirect subsidiaries (determined in accordance with article 2359 of the
Italian Civil Code)) by the Issuer or any Guarantor hereunder whether or not repaid at
that time,
provided that in order to comply with the provisions of Italian law in relation to financial
assistance (including article 2358 and/or article 2474, as applicable, of the Italian Civil Code),
no Italian Guarantor shall be liable as a Guarantor under this Agreement in relation to:
(i) the obligations of the Issuer in respect of any Acquisition Amounts;
(ii) the obligations of any Guarantor under any guarantee given by such Guarantor in
respect of the obligations referred to in paragraph (i) above.
Without prejudice to the provisions of the paragraphs above:
(A) in order to comply with the mandatory provisions of Italian law in relation to (i)
maximum interest rates (including Law No. 108 of 7 March 1996 (as amended and/or
restated from time to time, the “Italian Usury Law”) and article 1815 of the Italian Civil
Code) and (ii) capitalization of interests (including article 1283 of the Italian Civil
Code), the obligations of any Italian Guarantor under this Agreement shall not include
and shall not extend to (x) any interest qualifying as usurious pursuant the Italian Usury
64 EU-DOCS\25771403.12
Law and (y) any interest on overdue amounts compounded in violation of the provisions
set forth by article 1283 of the Italian Civil Code, respectively; and
(B) in any event, pursuant to article 1938 of the Italian Civil Code, the maximum
amount that any Italian Guarantor may be required to pay in respect of its obligations
as Guarantor under this Agreement shall not exceed 120% of the proceeds from the
Notes.
Notwithstanding any provision to the contrary herein, if at any time any remuneration in excess
of the highest rate permitted by the Italian Usury Law, as subsequently amended, (the
“Maximum Rate”) is provided for in the Indenture, then in such event the remuneration payable
by the Italian Guarantor in respect of the amounts due pursuant to this Agreement shall not
exceed the Maximum Rate.
Part V
Limitations applying to Luxembourg Guarantors
In this Part V:
"Luxembourg Guarantor" means a Guarantor originally incorporated in
Luxembourg or whose "centre of main interests" within the meaning of the Regulation
(EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on
insolvency proceedings (recast) is in Luxembourg or whose place of central
administration (siège de l'administration centrale) within the meaning of the
Luxembourg act of 10 August 1915 on commercial companies, as amended.
Notwithstanding any provision to the contrary in this Agreement or in any other
Transaction Documents, the aggregate obligations and exposure of a Luxembourg
Guarantor under this Agreement shall be limited at any time to an aggregate amount
not exceeding the higher of:
(i) an amount equal to 95% (ninety five per cent) of such Luxembourg
Guarantor's (a) own funds (capitaux propres) (as determined by Annex
1 of the Grand-Ducal Regulation dated 18 December 2015 setting out
the form and the content of the presentation of the balance sheet and
profit and loss account in relation to, inter alia, article 34 of the
Luxembourg law dated 19 December 2002 on the commercial register
and annual accounts, as amended (the "2002 Law")) (the "Own Funds")
and (b) such Luxembourg Guarantor's debt which is subordinated in
right of payment (whether generally or specifically) to any claim of any
Finance Party under any of the Transaction Documents (the
"Subordinated Debt"), as reflected in the financial information of the
Luxembourg Guarantor available to the Trustee at the date of this
Agreement or, as applicable, its accession thereto as a Luxembourg
Guarantor, including, without limitation, its most recently and duly
approved financial statements (comptes annuels) and any (unaudited)
interim financial statements signed by its board of managers (gérants)
or, as applicable, board of directors (administrateurs); and
65 EU-DOCS\25771403.12
(ii) an amount equal to 95% (ninety five per cent) of such (a) Luxembourg
Guarantor's Own Funds and its (b) Subordinated Debt, as reflected in the
financial information of the Luxembourg Guarantor available to the
Agent at the date the guarantee is called, including, without limitation,
its most recently and duly approved financial statements (comptes
annuels) and any (unaudited) interim financial statements signed by its
board of managers (gérants) or, as applicable, board of directors
(administrateurs).
Should the financial information referred to in clause (i) and (ii) above not be available
on the date of this Agreement (or on the date of accession to this Agreement) or on the
date the guarantee is called, as the case may be, such financial information will be
determined by the Trustee or any other person designated by the Trustee, acting
reasonably, in accordance with the Luxembourg accounting principles applicable to the
relevant Luxembourg Guarantor and at the cost of such Luxembourg Guarantor.
For the purposes of determining the amount of Own Funds (and by derogation to the
rules contained in the 2002 Law and Grand-Ducal Regulation dated 18 December 2015
setting out the form and the content of the presentation of the balance sheet and profit
and loss account), the assets of the Luxembourg Guarantor will be valued at their
market value rather than their book value by the Trustee acting in its sole commercially
reasonable discretion.
The above limitation shall not apply:
i. in respect of any amounts due under this Agreement by the Issuer or a Guarantor
which is a direct or indirect subsidiary of that Luxembourg Guarantor;
ii. in respect of any amounts due under the Transaction Documents by the Isuser
or a Guarantor which is not a direct or indirect subsidiary of that Luxembourg
Guarantor and which have been on-lent to or made available by whatever means
to that Luxembourg Guarantor or any of its direct or indirect subsidiaries.
EU-DOCS\25771403.12
ANNEX A
Written Communications
[None.]
EU-DOCS\25771403.12
ANNEX B
Pricing Term Sheet
* * *
See attached.
Strictly Confidential
Not for general circulation in the United States
Pricing Supplement dated 16 October 2019 to the Preliminary Offering Memorandum
dated 7 October 2019 of Motion Bondco DAC
Motion Bondco DAC
$410,000,000 6.625% Senior Notes due 2027
€370,000,000 4.500% Senior Notes due 2027
This Pricing Supplement (this “Pricing Supplement”) is qualified in its entirety by reference to the Preliminary
Offering Memorandum dated 7 October 2019 (the “Preliminary Offering Memorandum” and, together with this
Pricing Supplement, the “Disclosure Package”). The information in this Pricing Supplement supplements and
supersedes the Preliminary Offering Memorandum to the extent inconsistent with the information in the
Preliminary Offering Memorandum. The Preliminary Offering Memorandum is incorporated by reference herein.
Unless otherwise indicated, capitalized terms used but not defined herein have the meanings given to them in the
Preliminary Offering Memorandum.
Tranche: $410,000,000 6.625% Senior Notes due 2027
(the “Dollar Notes”)
€370,000,000 4.500% Senior Notes due 2027
(the “Euro Notes”)
Issuer: Motion Bondco DAC Issue Date Guarantors: Motion Midco Limited, Motion Acquisition Limited, Motion Finco S.à r.l., Motion
Finco 2 S.à r.l., Motion Finco, LLC
Post-Completion
Guarantors:
Merlin Entertainments plc, Madame Tussauds Touring Exhibition Limited, Merlin Attractions Operations Limited, Merlin Entertainments (Dungeons) Limited, Merlin Entertainments Group Holdings Limited, Merlin Entertainments (SEA LIFE) Limited, LEGOLAND ApS, Dungeon Deutschland GmbH, Heide-Park Soltau GmbH, LEGOLAND Deutschland Freizeitpark GmbH, Legoland Deutschland GmbH, Madame Tussauds Deutschland GmbH, Sea Life Deutschland GmbH, Gardaland S.r.l., LEGOLAND California, LLC, LEGOLAND Discovery Centre US, LLC, LEGOLAND New York LLC, Madame Tussaud Las Vegas LLC, Madame Tussaud’s New York LLC, Merlin Entertainments Group Florida LLC, Merlin Entertainments Group U.S. Holdings Inc., Merlin Entertainments North America LLC, Sea Life Minnesota LLC, Sea Life US LLC
Security: As set forth in the Preliminary Offering Memorandum
Distribution: Rule 144A / Regulation S (without registration rights)
Aggregate Principal
Amount:
$410,000,000 €370,000,000
Gross Proceeds: $410,000,000 €370,000,000
Coupon: 6.625% per annum 4.500% per annum
Interest Payment Dates: 15 May and 15 November of each year, commencing 15 May 2020
Interest Record Dates: 1 May and 1 November The Business Day immediately preceding
the Interest Payment Date
2
Tranche: $410,000,000 6.625% Senior Notes
due 2027 (the “Dollar Notes”)
€370,000,000 4.500% Senior Notes
due 2027 (the “Euro Notes”)
Maturity Date: 15 November 2027
Offering Price: 100.000% plus accrued interest from the
Issue Date, if any
100.000% plus accrued interest from the
Issue Date, if any
Yield to Maturity: 6.625% 4.500%
Benchmark: UST 2.25% due 15 November 2027 DBR 5.625% due 4 January 2028
Spread to Benchmark: 494 bps 501 bps
Identification Numbers: ISINs: US61978XAA54 (144A) /
USG6329EAB95 (Reg S)
CUSIPs: 61978X AA5 (144A) /
G6329E AB9 (Reg S)
ISINs: XS2064643641 (144A) /
XS2064643484 (Reg S)
Common Codes: 206464364 (144A) /
206464348 (Reg S)
Optional Redemption: Prior to 15 November 2022: make-whole
(Treasury + 50 bps)
On or after 15 November 2022:
103.3125%
On or after 15 November 2023:
101.65625%
On or after 15 November 2024 and
thereafter: 100.000%
Prior to 15 November 2022: make-whole
(Bund Rate + 50 bps)
On or after 15 November 2022:
102.250%
On or after 15 November 2023:
101.125%
On or after 15 November 2024 and
thereafter: 100.000%
Change of Control
Triggering Event:
Put at 101% of principal plus accrued and unpaid interest, if any, subject to
Consolidated Total Debt Ratio being greater than 5.75 to 1.00 after giving pro forma
effect to such Change of Control
Optional Redemption
upon Certain Tender
Offers:
In connection with any tender offer for, or other offer (including a Change of Control
Offer, Alternate Offer or Asset Sale Offer) for either series of the Notes, if holders of
not less than 90% of the aggregate principal amount of the then outstanding Notes of
such series (excluding any Notes owned by an Affiliate of the Issuer) validly tender
and do not validly withdraw such Notes in such offer and the Issuer, or a third party
making such offer in lieu of the Issuer, purchases all of the Notes of such series validly
tendered and not validly withdrawn by such holders, the Issuer or such third party will
have the right to redeem all the Notes of such series that remain outstanding following
such purchase at a redemption price equal to the price offered plus, to the extent not
included in the offer payment, accrued and unpaid interest, if any, thereon, to, but
excluding, the redemption date.
Redemption with
Proceeds of an Equity
Offering:
At any time prior to 15 November 2022, the Issuer may redeem up to 40% of the
aggregate principal amount of each of the Dollar Notes and the Euro Notes (including
the principal amount of any additional Notes of the same series of Notes) using the net
proceeds of one or more specified equity offerings at a redemption price equal to
106.625% and 104.500% in respect of the Dollar Notes and the Euro Notes,
respectively, of the principal amount of the series of Notes so redeemed, in each case
plus accrued and unpaid interest and additional amounts, if any, to, but not including,
the applicable date of redemption; provided that at least 50% of the aggregate principal
amount of such series (in each case, including any additional Dollar Notes or Euro
Notes, as the case may be) remains outstanding after each such redemption (unless all
Notes of such series are redeemed substantially concurrently).
Special Mandatory
Redemption:
If the conditions to the release of the Escrowed Property have not been satisfied on or
prior to March 31, 2020, or upon the occurrence of certain other events, the Notes will
be subject to a special mandatory redemption. The special mandatory redemption price
3
Tranche: $410,000,000 6.625% Senior Notes
due 2027 (the “Dollar Notes”)
€370,000,000 4.500% Senior Notes
due 2027 (the “Euro Notes”)
of the Notes will be equal to 100% of the aggregate issue price of the Notes, plus
accrued and unpaid interest and additional amounts, if any, to, but excluding such
special mandatory redemption date.
Denominations: Minimum denominations of $200,000 and
integral multiples of $1,000 in excess
thereof
Minimum denominations of €100,000 and
integral multiples of €1,000 in excess
thereof
Trade Date: 16 October 2019
Settlement Date: 4 November 2019 (T+13)
Expected Ratings: B3 (Moody’s) / B- (S&P)
A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
Listing: Application will be made to The International Stock Exchange Authority Limited for
the listing of and permission to deal in the Notes on the Official List of The
International Stock Exchange.
There can be no assurance that the Notes will be listed on the Official List of The
International Stock Exchange, that such permission to deal in the Notes will be granted
or that such listing will be maintained.
Joint Bookrunners: Deutsche Bank AG, London Branch
(B&D), BofA Securities, Inc., Barclays
Bank PLC, HSBC Bank plc, Mizuho
Securities USA LLC, UniCredit Bank AG
Deutsche Bank AG, London Branch
(B&D), Merrill Lynch International,
Barclays Bank PLC, HSBC Bank plc,
Mizuho Securities Europe GmbH,
UniCredit Bank AG
Co-Manager: Blackstone Advisory Partners L.P. Blackstone Advisory Partners L.P.
4
AMENDMENTS TO THE PRELIMINARY OFFERING
MEMORANDUM
In addition to the pricing information above, this Pricing Supplement amends and updates certain sections of the
Preliminary Offering Memorandum, as described below. Additional conforming changes are made to the Preliminary
Offering Memorandum to reflect the changes described herein. Section references in the amended sections below refer to
the sections of the Preliminary Offering Memorandum as amended and supplemented by this Pricing Supplement.
***
The following line items in the table under the caption titled “Other Operating, Financial and Pro Forma Financial
Information” on page 34 and footnote (7) thereto on pages 36 and 37 of the Preliminary Offering Memorandum are
hereby amended as follows:
As at and
for the 52
weeks
ended
29 June
2019 Pro forma net indebtedness (excluding leases)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 3,028
Pro forma cash interest expense (excluding leases)(7)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . 145
Ratio of Pro forma net indebtedness (excluding leases) to pro forma EBITDA(2)(5)
. . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.0x
Ratio of Pro forma net indebtedness (excluding leases) to pro forma operating free cash flow(5)(6)
. . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4x
Ratio of pro forma EBITDA to pro forma cash interest expense (excluding leases)(2)(7)
. . . . . . . . . . . .
. . . . . . . . . . . . . . . . . 3.5x
(7) Pro forma cash interest expense (excluding leases) represents estimated cash interest expense (excluding leases)
of Midco and its consolidated subsidiaries, including the Target, for the 52 weeks ended 29 June 2019, as adjusted
to give effect to the Transactions, as if the Transactions occurred on 1 July 2018. See “Summary—The
Transactions,” “Use of Proceeds” and “Capitalisation.” For purposes of calculating pro forma cash interest
expense, interest on the Notes and drawings under the Senior Facilities have been converted to pounds sterling
at an exchange rate of $1.2787 to £1.00 or €1.1590 to £1.00, as applicable, which was the exchange rate at the
close of trading on 15 October 2019, and interest on the Existing 2026 Notes has been converted to pounds
sterling at an exchange rate of $1.2696 to £1.00, which was the exchange rate at the close of trading on 29 June
2019. However, we may enter into currency and interest rate hedges after the Issue Date, from time to time, which
would impact the actual cash interest payable in connection with our indebtedness. Pro forma cash interest expense
(excluding leases) has been presented for illustrative purposes only and does not purport to represent what our
cash interest expense (excluding leases) would have actually been had the Transactions occurred on the date
assumed, nor does it purport to project our cash interest expenses (excluding leases) for any period or our financial
condition on any future date.
Except as otherwise shown above, the footnotes to the preceding table remain the same as those in the Preliminary Offering
Memorandum.
***
The first sentence, the second paragraph and the following line items in the table under the caption titled “Use of
5
Proceeds” on page 77 of the Preliminary Offering Memorandum are hereby amended as follows:
We estimate the gross proceeds of the Notes will be £640 million (equivalent).
The notional sources and uses necessary to consummate the Acquisition are shown in the table below. Actual amounts
will vary from the notional amounts presented here depending on several factors, including fluctuations in the exchange
rates amongst the U.S. dollar, the euro and the pound sterling, differences between our estimates of fees and expenses
and the actual fees and expenses as at the Acquisition Payment Date, the Acquisition Completion Date and the timing
of the actual Escrow Release Date. Amounts in the table below are notionally converted to pounds sterling at an exchange
rate of $1.2787 to £1.00 or €1.1590 to £1.00, as applicable, which was the exchange rate at the close of trading on 15
October 2019, except for the certain existing net indebtedness of the Target which has been converted to pounds sterling
at an exchange rate of $1.2696 to £1.00, which was the exchange rate at the close of trading on 29 June 2019.
Sources of Funds (£ in millions) Uses of Funds (£ in millions)
Senior Facilities(1) .................................. 2,206
Acquisition of share capital of the
Target(4)................................................. 4,693
Dollar Notes offered hereby(2) ................ 321
Refinancing certain existing net
indebtedness of the Target(5) ................. 661
Euro Notes offered hereby(2) .................. 319
Cash to the balance sheet of the
Target(6)................................................. 133
Equity Contribution(3) ............................ 2,873 Transaction fees and expenses(7) ........... 232
Total Sources ........................................ 5,719 Total Uses ............................................ 5,719
***
The “Transactions Adjustments” and the “As Adjusted” columns in the table under the caption titled “Capitalisation”
on page 79 of the Preliminary Offering Memorandum are hereby replaced with the following:
The Target Midco
As at 29 June
2019 Actual
Transactions
Adjustments(1
)
As at 29 June
2019
As Adjusted
(£ in millions)
Cash and cash equivalents(2) ............................................... 134 (1) 133
Senior Indebtedness:
Existing 2022 Notes(3)............................................................ 627 (627) —
Existing 2026 Notes(4)............................................................ 315 — 315
Existing Senior Facilities(5) .................................................... 168 (168) —
Senior Facilities(6) .................................................................. — 2,206 2,206
Junior Indebtedness:
Notes offered hereby(7) .......................................................... — 640 640
Total Indebtedness (excluding leases)(8) ............................. 1,110 3,161
Issued capital and reserves attributable to owners of the Target(9)
...............................................................................................
1,650
1,223 2,873
Non-controlling interest(10) .................................................... 5 — 5
Total equity .......................................................................... 1,655 2,878
Total capitalisation .............................................................. 2,765 6,039
The footnotes to the preceding table remain the same as those in the Preliminary Offering Memorandum.
***
Sub-clause (A) under clause (1) of the second paragraph under the caption titled “Description of Notes—Limitation on
6
Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock” on page 250 of the Preliminary Offering
Memorandum is hereby replaced with the following:
(A)(i) $1,210.0 million, plus (ii) €1,460.0 million, plus (iii) $572.5 million, plus (iv) £400.0 million;
***
The last sentence of the fifth paragraph under the caption titled “Description of Notes—Limitation on Incurrence of
Indebtedness and Issuance of Disqualified Stock and Preferred Stock” on page 256 of the Preliminary Offering Memorandum
is hereby deleted.
***
The first sentence of the second paragraph under the caption titled “Description of Notes—Amendment, Supplement and
Waiver” on page 272 of the Preliminary Offering Memorandum is hereby replaced with the following:
The Indenture will provide that, without the consent of at least 90% of the affected Holders of Notes, an amendment or waiver
may not, with respect to any Notes held by a non-consenting Holder:
***
Item (4) of the second paragraph under the caption titled “Description of Notes—Amendment, Supplement and Waiver” on
page 272 of the Preliminary Offering Memorandum is hereby replaced with the following:
(4) (A) waive a Default or Event of Default in the payment of principal of or premium, if any, or interest on such Notes,
except a rescission of acceleration of a Series of Notes by the Holders of a majority in principal amount of all the then
outstanding Notes of such series, and a waiver of the payment default that resulted from such acceleration, or (B) waive a
Default or Event of Default in respect of a covenant or provision contained in the Indenture, the Notes or any Guarantee which
cannot be amended or modified without the consent of at least 90% of affected Holders;
***
Conforming changes will be made to the Offering Memorandum to reflect the above terms.
***
This communication is intended for the sole use of the person to whom it is provided by the sender. Distribution of this
Pricing Supplement to any persons other than the person receiving this electronic transmission and its respective agents, and
any persons retained to advise the person receiving this electronic transmission, is unauthorized. Any photocopying, disclosure
or alteration of the contents of this Pricing Supplement or any portion thereof by electronic mail or any other means to any
person other than the person receiving this electronic transmission is prohibited. By accepting delivery of this Pricing
Supplement, the recipient agrees to the foregoing.
Before you invest, you should read the Preliminary Offering Memorandum for more complete information about the Issuer
and the Offering.
This communication does not constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to
any person to whom it is unlawful to make such an offer or solicitation in such jurisdiction.
The Notes and the Note Guarantees have not been, and will not be, registered under the U.S. Securities Act of 1933, as
amended (the “Securities Act”), or the securities laws of any other jurisdiction and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons, except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and such other securities laws. Accordingly, the Securities are
being offered only to (1) “qualified institutional buyers” as defined in Rule 144A under the Securities Act and (2) outside the
United States to non-U.S. persons in compliance with Regulation S under the Securities Act. For details about eligible offers,
deemed representations and agreements by investors and transfer restrictions, see “Notice to Investors” in the Preliminary
Offering Memorandum.
7
The Preliminary Offering Memorandum has been prepared on the basis that any offer of Notes in any Member State of the
European Economic Area has been made to a person who is not a retail investor (within the meaning of point (11) of Article
4(1) of Directive 2014/65/EU (as amended, “MiFID II”) or a customer within the meaning of Directive (EU) 2016/97 (as
amended, 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) and the Notes have not been offered, sold or otherwise made available and will not
be offered, sold or otherwise made available to any retail investor in the European Economic Area.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS
COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE
AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG
OR ANOTHER EMAIL SYSTEM.
EU-DOCS\25771403.12
ANNEX C
Form of Accession Agreement
This ACCESSION AGREEMENT (this “Accession Agreement”), dated as of [●], is
made by [●] (each, a “Post-Completion Guarantor” and collectively, the “Post-Completion
Guarantors”) under the Purchase Agreement referred to below.
WHEREAS, a purchase agreement dated as of October 16, 2019 (the “Purchase
Agreement”) has been entered into by and among Motion Bondco Designated Activity
Company, a designated activity company incorporated under the laws of Ireland (the “Issuer”)
and the initial purchasers named in Schedule I thereto (the “Initial Purchasers”), in connection
with the purchase and sale by the Initial Purchasers of €370 million in aggregate principal
amount of the Issuer’s 4.500% Senior Notes due 2027 and $410 million in aggregate principal
amount of the Issuer’s 6.625% Senior Notes due 2027.
WHEREAS, the Purchase Agreement contemplates that each Post-Completion
Guarantor will accede to the Purchase Agreement within 120 days from the Acquisition
Completion Date, and substantially simultaneously with such Post-Completion Guarantor’s
guarantee of obligations under the Senior Facilities Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, each Post-Completion Guarantor
hereby covenants and agrees:
1. Capitalized Terms. Capitalized terms used in this Accession Agreement and
not otherwise defined in this Accession Agreement shall have the meanings ascribed to them
in the Purchase Agreement.
2. Agreement to Accede. Each Post-Completion Guarantor, as of the date hereof,
hereby agrees to accede to the Purchase Agreement on the terms and conditions set forth in this
Accession Agreement and the Purchase Agreement and shall have the rights and obligations
thereunder as if it had executed the Purchase Agreement as a Guarantor. In connection with
such accession, each Post-Completion Guarantor agrees to be bound by all of the
representations, warranties, covenants, stipulations, promises, agreements and other
obligations applicable as set forth in the Purchase Agreement, to the extent permitted by
applicable law, as of the dates provided therein. On and after the date of this Accession
Agreement, each reference to the “Purchase Agreement” or “this Agreement”, or words of like
import referring to the Purchase Agreement, shall mean the Purchase Agreement together with
this Accession Agreement and any other Accession Agreement entered into on or prior to the
date hereof.
3. Governing Law. This Accession Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts made and to be
performed within the State of New York.
4. Effect of Headings. The Section headings used herein are for convenience only
and shall not affect the construction hereof.
5. Successors. All covenants and agreements in this Accession Agreement by the
parties hereto shall bind their respective successors.
6. Counterparts. This Accession Agreement may be executed by any one or more
69 EU-DOCS\25771403.12
of the parties hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and the same
instrument.
7. Consent to Jurisdiction; Appointment of Agent for Service. Each of the Post-
Completion Guarantors agree that any suit, action or proceeding against it brought by any
Initial Purchaser, the directors, officers, employees and agents of any Initial Purchaser, or by
any person who controls any Initial Purchaser, arising out of or based upon this Accession
Agreement, the Purchase Agreement or the transactions contemplated hereby or thereby may
be instituted in any state or federal court in the Borough of Manhattan in The City of New
York, New York, and waives any objection which it may now or hereafter have to the laying
of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of
such courts in any suit, action or proceeding. Each of the Post-Completion Guarantors will
have appointed, at or prior to the Accession Date, [●], with offices located at [●], Attn: [●], as
its authorized agent in any manner permitted by applicable law (the “Authorized Agent”) upon
whom process may be served in any suit, action or proceeding arising out of or based upon this
Accession Agreement, the Purchase Agreement or the transactions contemplated herein or
therein. Each of the Post-Completion Guarantors hereby represents and warrants that the
Authorized Agent will have accepted, at or prior to the Accession Date, such appointment and
will have agreed, at or prior to the Accession Date, to act as said agent for service of process,
and each of the Post-Completion Guarantors agree to take any and all action, including the
filing of any and all documents that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed,
in every respect, effective service of process upon the Post-Completion Guarantors.
[Signature page follows]
70 EU-DOCS\25771403.12
IN WITNESS WHEREOF, each of the undersigned has executed this Accession
Agreement as of the date first written above.
[●],
as a Post-Completion Guarantor
By:
_________________________
____________________
Name:
Title: