EXHIBIT 1.1
EXECUTION VERSION
EURO 350,000,000
10.125% SENIOR NOTES DUE 2012
$545,000,000
9.625% SENIOR NOTES DUE 2012
MDP ACQUISITIONS PLC
AND
MDCP ACQUISITIONS I, AS GUARANTOR
PURCHASE AGREEMENT
September 23, 2002
Deutsche Bank AG London
Winchester House
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▇▇▇▇▇▇▇ ▇▇▇▇▇ International
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As Representatives of the several
Initial Purchasers named in Schedule I,
Ladies and Gentlemen:
MDP Acquisitions plc a public limited company formed under the laws of
Ireland (the "Company"), proposes to issue and sell to Deutsche Bank AG London
("Deutsche Bank") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and the
several Initial Purchasers listed in Schedule I hereto (together with Deutsche
Bank and ▇▇▇▇▇▇▇ ▇▇▇▇▇, the "Initial Purchasers") EURO 350,000,000 million in
aggregate principal amount of its 10.125% Senior Notes due 2012 (the "Euro
Notes") and $545,000,000 million in aggregate principal amount of its 9.625%
Senior
Notes due 2012 (the "Dollar Notes"; together with the Euro Notes, the "Notes").
The Euro Notes will be issued pursuant to the provisions of an Indenture to be
dated as of September 30, 2002 (the "Euro Indenture") among the Company, MDCP
Acquisitions I, a public unlimited company formed under the laws of Ireland (the
"Guarantor") and Deutsche Bank Trust Company Americas, as trustee (the "Euro
Trustee") and will be fully and unconditionally guaranteed (the "Euro
Guarantee") on a senior subordinated basis by the Guarantor. The Dollar Notes
will be issued pursuant to the provisions of an Indenture to be dated as of
September 30, 2002 (the "Dollar Indenture"; together with the Euro Indenture,
the "Indentures") among the Company, the Guarantor and Deutsche Bank Trust
Company Americas, as trustee (the "Dollar Trustee"; together with the Euro
Trustee, the "Trustees"), and will be fully and unconditionally guaranteed (the
"Dollar Guarantee"; together with the Euro Guarantee, the "Guarantees") on a
senior subordinated basis by the Guarantor. The Euro Notes will be deposited
with Deutsche Bank AG London, acting in its capacity as depositary (the "Euro
Book-Entry Depositary") under the Euro Deposit and Custody Agreement, to be
dated as of September 30, 2002 (the "Euro Deposit and Custody Agreement"),
between the Company and the Euro Book-Entry Depositary. The Dollar Notes will be
deposited with Deutsche Bank Trust Company Americas, acting in its capacity as
depositary (the "Dollar Book-Entry Depositary") under the Dollar Deposit and
Custody Agreement, to be dated as of September 30, 2002 (the "Dollar Deposit and
Custody Agreement"; together with the Euro Deposit and Custody Agreement, the
"Deposit and Custody Agreements"), between the Company and the Dollar Book-Entry
Depositary. The Notes and the Guarantees are collectively referred to herein as
the "Securities".
The offering of the Securities is being made in connection with (i) the
public tender offer by Guarantor to acquire all of the issued and to be issued
share capital of Jefferson Smurfit Group plc ("JSG") on the terms and subject to
the conditions referred to in an offer to purchase dated July 5, 2002, which
offer has been declared unconditional in all respects under Irish law (the
"Tender Offer") and the actions taken by the Guarantor under Irish law to
compulsorily acquire the shares of any shareholders of JSG who do not tender
their shares pursuant to the Tender Offer (the "Compulsory Share Acquisition";
together with the Tender Offer, the "Acquisition") and (ii) that certain bank
credit facility (the "Senior Bank Financing") among the Guarantor, the Company,
various lenders named therein, Deutsche Bank AG London, ▇▇▇▇▇▇▇ ▇▇▇▇▇
International and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation. References in this
Agreement to the "Transactions" shall include the transactions defined in the
Offering Memorandum (as defined) as the "Transactions".
The sale of the Securities to the Initial Purchasers will be made without
registration of the Securities under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption therefrom.
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum dated September 5, 2002 (the "Preliminary
Memorandum") and has prepared a final offering memorandum dated on or about the
date hereof (the "Final Memorandum"; together with the Preliminary Memorandum,
the "Offering Memorandum"), for the information of the Initial Purchasers and
for delivery to prospective purchasers of the Securities by the Initial
Purchasers. Any references herein to the Preliminary Memorandum, the Final
Memorandum or the Offering Memorandum shall be deemed to include all amendments
and supplements thereto.
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The Initial Purchasers and their direct and indirect transferees will be
entitled to the benefits of a registration rights agreement with respect to the
Euro Notes (the "Euro Registration Rights Agreement"), to be dated as of the
Closing Date (as defined) and to be substantially in the form attached hereto as
Exhibit A, pursuant to which the Company and the Guarantor will file one or more
registration statements with the Securities and Exchange Commission (the
"Commission") registering with the Commission the Company's 10.125% Senior Notes
due 2012 with terms substantially identical to those of the Euro Notes (the
"Euro Exchange Notes") to be offered in exchange for the Euro Notes, including a
guarantee substantially identical to that of the Euro Guarantee (the "Euro
Exchange Guarantee"). In addition, the Initial Purchasers and their direct and
indirect transferees will be entitled to the benefits of a registration rights
agreement with respect to the Dollar Notes (the "Dollar Registration Rights
Agreement"; together with the Euro Registration Rights Agreement, the
"Registration Rights Agreements"), to be dated as of the Closing Date (as
defined) and to be substantially in the form attached hereto as Exhibit B,
pursuant to which the Company and the Guarantor will file one or more
registration statements with the Securities and Exchange Commission (the
"Commission") registering with the Commission the Company's 9.125% Senior Notes
due 2012 with terms substantially identical to those of the Dollar Notes (the
"Dollar Exchange Notes"; together with the Euro Exchange Notes, the "Exchange
Notes") to be offered in exchange for the Dollar Notes, including a guarantee
substantially identical to that of the Dollar Guarantee (the "Dollar Exchange
Guarantee"; together with the Euro Exchange Guarantee, the "Exchange
Guarantees").
The Company and the Guarantor agree with the Initial Purchasers as follows:
1. The Company agrees to issue and sell the Securities to the several
Initial Purchasers as hereinafter provided, and each Initial Purchaser, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
the aggregate principal amount of Notes from the Company as set forth opposite
such Initial Purchaser's name in Schedule I hereto at a price (the "Purchase
Price") equal to 100% of the principal amount of the Notes plus accrued
interest, if any, from September 30, 2002 to the date of payment and delivery.
Concurrently with this purchase, the Guarantor agrees to pay to the Initial
Purchasers, in euro (with respect to Securities denominated in euro) and U.S.
dollars (with respect to Securities denominated in U.S. dollars), 2.75% of the
gross proceeds of the offering of the Securities (the "Initial Purchasers'
Commission") (each Initial Purchaser to receive a proportion of the Initial
Purchasers' Commission equal to the proportions set forth in Schedule I hereto).
2. The Company and the Guarantor understand that the Initial Purchasers
intend (i) to offer the Securities to "qualified institutional buyers" within
the meaning of Rule 144A under the Securities Act, and to also offer the
Securities pursuant to Regulation S under the Securities Act ("Regulation S"),
their respective portions of the Securities as soon after this Agreement has
become effective as in the judgment of the Initial Purchasers is advisable and
(ii) initially to offer the Securities upon the terms set forth in this
Agreement and in the Offering Memorandum.
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The Company and the Guarantor confirm that they have authorized the Initial
Purchasers, subject to the restrictions set forth below, to distribute copies of
the Offering Memorandum in connection with the offering of the Securities. Each
Initial Purchaser hereby makes to the Company and the Guarantor the following
representations and agreements:
(i) it is a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act; and
(ii) (A) it will not solicit offers for, or offer to sell, the Securities
by any form of general solicitation or general advertising (as those terms are
used in Regulation D under the Securities Act ("Regulation D")) or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act and (B) it will solicit offers for the Securities only from, and will offer
the Securities only to, persons whom it reasonably believes to be, (x) in the
case of offers of the Securities 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 Securities outside the United States,
persons other than U.S. persons ("foreign purchasers," which term shall include
dealers or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate or
trust)) that, in each case, in purchasing the Securities 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
clause (ii)(B)(y) above, each Initial Purchaser hereby represents and agrees
with the Company and the Guarantor that:
(i) it understands that no action has been or will be taken by the
Company or the Guarantor that would permit a public offering of the Securities,
or possession or distribution of the Offering Memorandum or any other offering
or publicity material relating to the Securities, in any country or jurisdiction
where action for that purpose is required;
(ii) it will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or has
in its possession or distributes the Offering Memorandum or any such other
material, in all cases at its own expense;
(iii) the Securities offered and sold by such Initial Purchaser pursuant
hereto in reliance on Regulation S have been and will be offered and sold only
in offshore transactions;
(iv) the sale of the Securities offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S is not part of a plan or scheme to
evade the registration provisions of the Securities Act;
(v) it understands that the Securities have not been and will not be
registered under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the Securities Act or pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act;
(vi) it has not offered the Securities and will not offer and sell the
Securities (a) as part of its distribution at any time and (b) otherwise prior
to 40 days after the later of the
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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 Securities, and
such Initial Purchaser, its affiliates and any such persons have complied and
will comply with the offering restrictions requirement of Regulation S; and
(vii) it agrees that, at or prior to confirmation of sales of the
Securities, it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities 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 prior to 40 days after the
closing of the offering, except in either case in accordance with
Regulation S (or Rule 144A, if available) under the Securities Act.
Terms used above have the meaning given to them by Regulation S."
Terms used in this Section 2 and not otherwise defined in this Agreement have
the meanings given to them by Regulation S.
Each Initial Purchaser hereby makes to the Company and the Guarantor the
following additional representations and agreements:
(i) it has not offered or sold and will not offer or sell the Securities
in the United Kingdom prior to the admission of the Securities to listing in
accordance with Part IV of the Financial Services and Markets Act 2000 (the
"FSMA Act") except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995 or the
FSMA;
(ii) 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 FSMA) received
by it in connection with the issue or sale of the Securities in circumstances in
which Section 21(1) of the FSMA does not apply to the Company or the Guarantor;
(iii) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Securities in, from
or otherwise involving the United Kingdom; and
(iv) otherwise than in circumstances which do not constitute an offer to
the public within the meaning of the Companies Acts 1963 to 2001, it will not
anywhere in the world (A) offer to sell any Securities by means of any document
other than the Final Memorandum or (B)
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issue any application for Securities; (ii) it will not make in Ireland a public
offer of Securities to which the European Communities (Transferable Securities
and Stock Exchange) Regulations, 1992 would apply, except by means of the Final
Memorandum or otherwise in accordance with the provisions of those regulations;
and (iii) it has complied and will comply with all applicable provisions of the
Investment Intermediaries Act, 1995 with respect to anything done or to be done
by it in relation to the Securities in, from or otherwise involving Ireland.
3. Payment for the Euro Notes and the Euro Guarantee (the "Euro
Securities") shall be made by wire transfer in immediately available funds to a
euro account and payment for the Dollar Notes and the Dollar Guarantee (the
"Dollar Securities") shall be made by wire transfer in immediately available
funds to a dollar account, in each case as specified by the Company to Deutsche
Bank and ▇▇▇▇▇▇▇ ▇▇▇▇▇, as representatives of the Initial Purchasers (the
"Representatives") on September 30, 2002, or at such other time on the same or
such other date, not later than the tenth Business Day thereafter, as the
Representatives and the Company may agree upon in writing. The time and date of
such payment are referred to herein as the "Closing Date." As used herein, the
term "Business Day" means any day other than a day on which banks are permitted
or required to be closed in New York City.
Payment for the Dollar Securities shall be made against delivery to the
nominee of The Depository Trust Company ("DTC") for the respective accounts of
the several Initial Purchasers of certificateless depositary interests
representing one or more global notes (collectively, the "Global Dollar Note")
representing the Dollar Notes. Payment for the Euro Securities shall be made
against delivery to a common depositary or its nominee for Euroclear Bank
S.A./N.V., as operator of the Euroclear System ("Euroclear") and Clearstream
Banking S.A. ("Clearstream"), for the respective accounts of the several Initial
Purchasers of certificated depositary interests representing one or more global
notes (collectively, the "Global Euro Note"; together with the Global Dollar
Note, the "Global Notes") representing the Euro Notes. The Global Notes will be
made available for inspection by the Initial Purchasers at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CityPoint, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, 1:00 pm (London time), on the Business Day prior to the Closing Date.
4. The Company and the Guarantor, jointly and severally, represent and
warrant to each Initial Purchaser that:
(a) the Preliminary Memorandum did not, as of its date, and the Final
Memorandum will not, in the form used by the Initial Purchasers to confirm sales
of the Securities and as of the Closing Date, 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 this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information relating to any Initial Purchaser furnished
to the Company in writing by such Initial Purchaser expressly for use therein;
(b) since the respective dates as of which information is given in the
Preliminary Memorandum and the Final Memorandum, 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, shareholders' equity, results of
6
operations or prospects of the Company and its subsidiaries, taken as a whole
and after giving effect to the Transactions (a "Material Adverse Effect"),
otherwise than as disclosed in the Final Memorandum;
(c) the statistical and market-related data included in the Offering
Memorandum are based on or derived from sources (including those described in
the Offering Memorandum under the heading "Market, Ranking and Other Data")
which the Company and the Guarantor believe to be reliable and accurate in all
material respects;
(d) each of the Company and the Guarantor has been duly incorporated or
organized, as the case may be, and is validly existing as a public limited
company, in the case of the Company, and a public unlimited company, in the case
of the Guarantor, under the laws of Ireland, with power and authority to own its
properties and conduct its business as described in the Final Memorandum, and
has been duly qualified as a foreign company for the transaction of business
and, if applicable, is in good standing under the laws of each other
jurisdiction in which it owns or leases 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;
(e) each of the Company's subsidiaries 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 its properties and conduct its business as described in the Offering
Memorandum, and has been duly qualified as a foreign corporation for the
transaction of business and is, if applicable, in good standing under the laws
of each other jurisdiction in which it owns or leases 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;
(f) JSG's consolidated capitalization at June 30, 2002 is as set forth in
the Offering Memorandum under the heading "Capitalization"; the outstanding
share capital of the Company has been duly authorized and is validly issued,
fully paid and non-assessable; the corporate organizational charts set forth as
Exhibit F hereto (the "Corporate Chart") accurately reflect the organizational
structure of the Company; and the outstanding share capital held by the Company
and its subsidiaries as set forth in the Corporate Chart in each case is duly
authorized, validly issued, fully-paid and non-assessable, and (except for any
directors' qualifying shares and except as noted in the Offering Memorandum)
will be owned by the Company, directly or indirectly, free and clear of all
liens, encumbrances, security interests and claims other than liens,
encumbrances, security interests and claims created pursuant to the Senior Bank
Financing or pursuant to the indebtedness disclosed in the Offering Memorandum
under the caption "Description of Certain Indebtedness - Other Indebtedness";
(g) this Agreement has been duly authorized, executed and delivered by the
Company and the Guarantor;
(h) the Notes have been duly authorized by the Company and, when issued and
delivered pursuant to this Agreement and authenticated by the Trustees in
accordance with the Indentures and payment therefor is received, will be duly
executed, authenticated, issued and delivered and
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will constitute valid and binding obligations of the Company entitled to the
benefits provided by the Indentures, enforceable against the Company in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, examinership, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
each Indenture has been duly authorized by the Company and the Guarantor and,
when executed and delivered by the Company and the Guarantor (assuming due
execution and delivery by each Trustee), each Indenture will constitute a valid
and binding instrument of the Company and the Guarantor, enforceable against the
Company and the Guarantor in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, examinership, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles; the Notes and each Indenture will conform in all
material respects to the descriptions thereof in the Final Memorandum; and on
the Closing Date, each Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "1939 Act") and
the rules and regulations of the Commission applicable to an Indenture which is
qualified thereunder;
(i) the Guarantees have been duly authorized by the Guarantor and, when
issued and delivered as contemplated by this Agreement and the Indentures, will
be duly executed, issued and delivered and will constitute valid and binding
obligations of the Guarantor entitled to the benefits provided by the
Indentures, enforceable against the Guarantor in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, examinership,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Guarantees will
conform in all material respects to the descriptions thereof in the Final
Memorandum;
(j) the unissued Exchange Notes have been duly authorized by the Company
and, if and when duly issued and authenticated in accordance with the terms of
the Indentures and, assuming due authentication of the Exchange Notes by the
Exchange Trustees, upon delivery in accordance with the exchange offer provided
for in the Registration Rights Agreements, will be duly executed, authenticated,
issued and delivered and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indentures, enforceable against
the Company in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, examinership, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Exchange Notes will conform in all material respects to the
descriptions thereof in the Final Memorandum;
(k) the unissued Exchange Guarantees have been duly authorized by the
Guarantor and, if and when, issued and delivered in accordance with the terms of
the Registration Rights Agreements and the Indentures, will be duly executed,
issued and delivered and will constitute valid and binding obligations of the
Guarantor entitled to the benefits provided by the Indentures, enforceable
against the Guarantor in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, examinership, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles; and the Exchange Guarantees will conform in all
material respects to the descriptions thereof in the Final Memorandum;
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(l) the Registration Rights Agreements have been duly authorized by the
Company and the Guarantor and, when duly executed and delivered by the Company
and the Guarantor (assuming due execution and delivery by the Initial
Purchasers), will constitute a valid and binding agreement of the Company and
the Guarantor, enforceable against the Company and the Guarantor in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
examinership, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles, except that the
enforceability of any indemnification or contribution provisions thereof may be
limited under applicable securities laws or the public policies underlying such
laws; and the Registration Rights Agreements will conform in all material
respects to the descriptions thereof in the Final Memorandum;
(m) the Deposit and Custody Agreements have been duly authorized by the
Company and, when duly executed and delivered by the Company (assuming due
execution and delivery by the Book-Entry Depositaries), will constitute valid
and binding agreements of the Company, enforceable against the Company in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, examinership, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
the Deposit and Custody Agreements will conform in all material respects to the
descriptions thereof in the Final Memorandum;
(n) neither the Company nor any of its subsidiaries is, or with the giving
of notice or lapse of time or both would be, in violation of or in default
under, its 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 the Company or any of its subsidiaries is
a party or by which it or any of them or any of their respective properties is
bound, 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;
(o) the execution and delivery of this Agreement, the Registration Rights
Agreements, the Deposit and Custody Agreements and the Indentures, the
performance by the Company and the Guarantor of their respective obligations
hereunder and thereunder and the consummation of the transactions contemplated
hereby and thereby will not (i) violate the memorandum and articles of
association (or the equivalent) or bylaws (or the equivalent) of the Company,
the Guarantor, or JSG (ii) constitute a violation by the Company, the Guarantor
or JSG of any applicable provision of any law, statute or regulation, except for
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
Company, the Guarantor or JSG to be material to the Company and its subsidiaries
taken as a whole, except for conflicts or breaches which would not have a
Material Adverse Effect, and no consent, approval, authorization, order,
license, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
consummation by the Company and the Guarantor of the other Transactions, except
such consents, approvals, authorizations, orders, licenses, registrations or
qualifications (i) as have been obtained or (ii) as may be required under (A)
state securities or blue sky laws in connection with the purchase and
distribution of the Securities by the Initial Purchasers, (B) the Securities Act
with respect to the registration of the Exchange Notes pursuant to the terms of
the Registration Rights Agreements or (C) the 1939 Act, with respect to the
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registration of the Exchange Notes pursuant to the terms of the Registration
Rights Agreements or (iii) the failure to obtain of which would not have a
Material Adverse Effect;
(p) the fair saleable value of the consolidated assets of the Company
exceeds 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
Company as they mature; the consolidated assets of the Company do not constitute
unreasonably small capital to carry out its business as conducted or as proposed
to be conducted; the Company does not intend to, and does not believe that it
will, incur debts beyond its ability to pay such debts as they mature; upon the
consummation of the Transactions, the fair saleable value of the assets of the
Company and its subsidiaries 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 Company and its
subsidiaries, taken as a whole, as they mature; the assets of the Company and
its subsidiaries do not, and upon the consummation of the Transactions will not,
constitute unreasonably small capital for the Company and its subsidiaries to
carry out their respective businesses as now conducted or as proposed to be
conducted including the capital needs of the Company and its subsidiaries, and
projected capital requirements of the business conducted by the Company and each
of its subsidiaries, and projected capital requirements and capital availability
thereof; and the Company does not intend to, and does not intend to permit any
of its subsidiaries to, incur debts beyond their respective ability to pay such
debts as they mature;
(q) other than as disclosed in the Final Memorandum, there are no legal or
governmental investigations of which the Company has received notice or
proceedings pending against or affecting the Company or any of its subsidiaries
or any of their respective properties which, individually or in the aggregate,
if determined adversely to the Company or any of its subsidiaries, would
reasonably be expected to have a Material Adverse Effect; and, to the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(r) other than as disclosed in the Final Memorandum, there are no court and
administrative orders, writs, judgments and decrees specifically directed to the
Company or any of its subsidiaries and known to the Company's executive officers
to be material to the Company and its subsidiaries taken as a whole;
(s) other than as disclosed in the Final Memorandum, the Company and its
subsidiaries have good and marketable title to all real property and good and
marketable title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are described or
referred to in the Offering Memorandum or such as would not have a Material
Adverse Effect; and any real property and buildings held under lease or cutting
rights by the Company and its subsidiaries are held by them under valid,
existing and enforceable leases or other agreements with such exceptions as
would not have a Material Adverse Effect;
(t) each of the Company and its subsidiaries 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
10
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 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 Company nor any
such subsidiary has 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 Offering
Memorandum and except as would not have a Material Adverse Effect; and each of
the Company and its subsidiaries 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;
(u) the Company and its subsidiaries (i) are in compliance with any and all
applicable European Union, national, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except as disclosed in the
Offering Memorandum or except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other 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;
(v) in the ordinary course of its business, the Company and its
subsidiaries conduct a periodic review of the effect of Environmental Laws on
the business, operations and properties of JSG and its subsidiaries, in the
course of which it identifies and evaluates associated costs and liabilities; on
the basis of such review, the Company has reasonably concluded that, except as
disclosed in the Offering Memorandum, such associated costs and liabilities
would not, singly or in the aggregate, have a Material Adverse Effect;
(w) the Company and its subsidiaries 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 Company's management reasonably believes are adequate to
protect the Company and its subsidiaries and their respective businesses, with
such exceptions as would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has (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;
(x) except as disclosed in the Offering Memorandum, no subsidiary of the
Company 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 to the Company or any other subsidiary of the Company;
11
(y) 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 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or quoted in a U.S.
automated inter-dealer quotation system;
(z) neither the Company nor any affiliate (as defined in Rule 501(b) of
Regulation D) of the Company has directly, or through any agent, sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect of, any
security which is or will be integrated with the sale of the Securities in a
manner that would require the registration under the Securities Act of the
offering and sale of the Securities;
(aa) each of the Company and the Guarantor is a "foreign private issuer"
(as such term is defined in the rules and regulations under the Securities Act
and the Exchange Act);
(bb) there is no "substantial U.S. market interest" as defined in Rule
902(i) of Regulation S in any of the Company's or the Guarantor's respective
debt or equity securities;
(cc) none of the Company, the Guarantor, any affiliate of either the
Company or the Guarantor or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company or the Guarantor make no
representation) has 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 Notes 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 the Company, any affiliate of the Company and any person acting on its
or their behalf has complied with and will implement the "offering restrictions"
requirements of Regulation S;
(dd) the Notes offered and sold in reliance on Regulation S have been and
will be offered and sold only in offshore transactions;
(ee) prior to the date hereof, neither the Company nor any of its
affiliates has taken 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 Company in connection with the
offering of the Securities;
(ff) none of the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the Securities)
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;
(gg) Ernst & Young, Dublin are independent certified public accountants
with respect to the Company and with respect to JSG and its subsidiaries within
the meaning of Rule 101 of the Code of Professional Conduct of the American
Institute of Certified Public Accountants ("AICPA") and its interpretations and
rulings thereunder; the historical financial statements (including the related
notes) included in the Offering Memorandum comply in all material respects with
the requirements applicable to a registration statement on Form F-1 under the
12
Securities Act; such financial statements and related notes have been prepared
in accordance with generally accepted accounting principles in Ireland
consistently applied throughout the periods covered thereby and fairly present
the financial position of the entities purported to be covered thereby at the
respective dates indicated and the results of their operations and their cash
flows for the respective periods indicated; the financial data contained in the
Offering Memorandum under the headings "Summary," "Capitalization," "Selected
Historical Financial Data", "Management's Discussion and Analysis of Financial
Condition and Results of Operations," "Business" and "Unaudited Pro Forma
Financial Statements" fairly present the information purported to be shown
thereby on a basis consistent with that of the audited and unaudited financial
statements contained in the Offering Memorandum; the PRO FORMA financial
information contained in the Offering Memorandum has been prepared on a basis
consistent with the historical financial statements contained in the Offering
Memorandum (except for the PRO FORMA adjustments specified therein), includes
all material adjustments to the historical financial information required by
Rule 11-02 of Regulation S-X under the Securities Act and the Exchange Act to
reflect the Transactions, gives effect to assumptions made on a reasonable basis
and fairly presents the Transactions;
(hh) none of the Company or any of its subsidiaries is, or after giving
effect to the offering and sale of the Securities and the application of the
proceeds therefrom as described in the Final 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 (the "Investment
Company Act");
(ii) assuming the accuracy of the representations of the Initial
Purchasers contained in Section 2 hereof, it is not necessary in connection with
the offer, sale and delivery of the Securities in the manner contemplated by
this Agreement and the Offering Memorandum to register the Securities under the
Securities Act or to qualify the Indenture or the Exchange Indenture under the
1939 Act;
(jj) no stamp or other issuance or transfer taxes or duties, value-added
tax, documentary tax, registration tax and no withholding or other taxes are
payable by or on behalf of the Initial Purchasers in connection with (a) the
issuance of Securities, (b) the sale, transfer and delivery of the Securities to
the Initial Purchasers pursuant to this Agreement or for the resale of the
Securities placed by or at the direction of the Initial Purchasers or (c) the
execution and delivery of this Agreement, the Registration Rights Agreements,
the deposit and Custody Agreements and the Indentures or the consummation of any
of the transactions contemplated hereby or thereby;
(kk) under the laws of Ireland, the submission by the Company and the
Guarantor 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, the Registration Rights Agreements, the
Deposit and Custody Agreement and the Indentures are valid and binding upon the
Company and the Guarantor and would be recognized and enforceable against the
Company and the Guarantor in Ireland; and
(ll) The form of certificates for the Securities to be sold pursuant to
this Agreement conforms to the corporate law of Ireland.
13
5. The Company and the Guarantor, jointly and severally, covenant and
agree with each of the several Initial Purchasers as follows:
(a) to deliver to the Initial Purchasers as many copies of the Preliminary
Memorandum and the Final Memorandum (including all amendments and supplements
thereto) as the Initial Purchasers or their counsel may reasonably request;
(b) before distributing any amendment or supplement to the Offering
Memorandum, to furnish to the Initial Purchasers a copy of the proposed
amendment or supplement for review and not to distribute any such proposed
amendment or supplement to which the Initial Purchasers or their counsel
reasonably object;
(c) if, at any time prior to the expiration of nine months after the date
of the Final Memorandum, any event shall occur as a result of which it is
necessary in the reasonable opinion of counsel to the Initial Purchasers to
amend or supplement the Final Memorandum in order to make the statements
contained therein, in the light of the circumstances when such Final Memorandum
is delivered, not misleading, or if in the reasonable opinion of counsel to the
Initial Purchasers it is necessary to amend or supplement the Final Memorandum
to comply with law, forthwith to prepare and furnish, at the expense of the
Company and the Guarantor, to the Initial Purchasers and to the dealers (whose
names and addresses the Initial Purchasers will furnish to the Company and the
Guarantor) to which Securities may have been sold by the Initial Purchasers and
to any other dealers upon request, such reasonable number of amendments or
supplements to the Final Memorandum as may be necessary so that the statements
in the Final Memorandum as so amended or supplemented will not, in light of the
circumstances when the Final Memorandum is delivered, be misleading or so that
the Final Memorandum will comply with law;
(d) to cooperate with the Initial Purchasers and their counsel in
connection with the qualification of the Securities for offer and sale under the
state securities or blue sky laws of such jurisdictions as the Initial
Purchasers 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 Securities; PROVIDED that neither the Company nor the Guarantor shall be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(e) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of their obligations hereunder,
including all fees, costs and expenses incidental to (i) the preparation,
issuance, execution, authentication and delivery of the Securities, including
any expenses of the Trustees, the Exchange Trustees, 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 Memorandum and the Final Memorandum (including
in each case all exhibits, amendments and supplements thereto), (iii) the
registration or qualification and determination of eligibility for investment of
the Securities 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 Securities on any
securities exchange (including the listing of the Securities on the Luxembourg
14
Stock Exchange) or inter-dealer quotation system (as well as in connection with
the designation of the Securities as PORTAL securities, if so requested), (v)
the printing (including word processing and duplication costs) and delivery of
this Agreement, the Indentures, the Deposit and Custody Agreements, the
Registration Rights Agreements and the Preliminary and Final Blue Sky Memoranda
and the furnishing to the Initial Purchasers and dealers of copies of the
Offering Memorandum, including mailing and shipping, as herein provided, (vi)
any fees charged by investment rating agencies in connection with the rating of
the Securities, (vii) the fees and expenses of the Company's and the Guarantor's
counsel and independent accountant; (viii) any meetings with prospective
investors in the Securities (including reasonable expenses relating to
commercial flights, the chartering of any planes, food, lodging and all other
reasonable travel costs incurred during the roadshow or other meetings with
investors); (ix) the fees and expenses of any Authorized Agent (as defined in
Section 12 hereof); (x) any stamp or other issuance or transfer taxes or
governmental duties, if any, payable by the Initial Purchasers in connection
with the offer and sale of the Securities to the Initial Purchasers and resales
by the Initial Purchasers to initial purchasers thereof; and (xi) all other
reasonable out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by the Initial Purchasers or any of their affiliates in
connection with, or arising our of, the offering and sale of the Securities;
PROVIDED, HOWEVER, that, pursuant to a Bridge Facilities Fee Letter dated June
17, 2002 (the "Fee Letter") from the Initial Purchasers and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Capital Corporation (collectively, the "Underwriters") to MDP Acquisitions plc
(the "Parent"), the reasonable fees (but not the expenses) of counsel for the
Initial Purchasers to be paid or reimbursed by the Company and the Guarantor or
the Parent shall not exceed US$400,000 less the reasonable fees and expenses of
counsel for the Arrangers (as defined in the Fee Letter) previously paid
pursuant to a Bridge Facilities Letter dated June 17, 2002 from the Underwriters
to the Parent.
(f) to use the gross proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified and under the
circumstances assumed in the Final Memorandum under the caption "Use of
Proceeds";
(g) during the period beginning after the date hereof and continuing until
the date six months after the Closing Date, not to offer, sell, contract to
sell, or otherwise dispose of any securities of the Company that are
substantially similar to the Securities without the consent of Deutsche Bank AG
London (which consent shall not be unreasonably withheld);
(h) not to take any action prohibited by Regulation M under the Exchange
Act in connection with the distribution of the Securities contemplated hereby;
(i) that none of the Company or the Guarantor, any of their affiliates (as
defined in Rule 501(b) under the Securities Act) or any person acting on behalf
of the Company or such affiliate will solicit any offer to buy or offer to sell
the Securities by means of any form of general solicitation or general
advertising, including: (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar medium or
broadcast over television or radio; and (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising;
(j) that none of the Company or the Guarantor, any of their affiliates (as
defined in Rule 144(a)(1) under the Securities Act) or any person acting on
behalf of any of the foregoing will
15
engage in any directed selling efforts with respect to the Securities within the
meaning of Regulation S;
(k) that none of the Company, any of its affiliates (as defined in
Regulation 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
Company and the Guarantor will take all action that is appropriate or necessary
to assure that their offerings of other securities will not be integrated for
purposes of the Securities Act with the offerings contemplated hereby;
(l) to obtain the approval of (i) DTC for "book-entry" transfer of the
Dollar Securities and (ii) Euroclear and Clearstream for "book-entry" transfer
of the Euro Securities;
(m) if requested by the Initial Purchasers, to use their best efforts to
cause the Dollar Securities to be eligible for the PORTAL trading system of the
National Association of Securities Dealers, Inc.;
(n) the Company and the Guarantor will, jointly and severally, indemnify
and hold harmless the Initial Purchasers against any documentary, stamp or
similar issuance tax, including any interest and penalties, whether in Ireland
or in any other jurisdiction, on the creation, issuance and sale of the
Securities and on the initial resale thereof by the Initial Purchasers and on
the execution and delivery of this Agreement; all payments to be made by the
Company and the Guarantor hereunder shall be made without withholding or
deduction for or on account of any present or future taxes, duties or
governmental charges whatsoever unless the Company or the Guarantor is compelled
by law to deduct or withhold such taxes, duties or charges; and in that event,
the Company or the Guarantor, as the case may be, shall pay such additional
amounts 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;
(o) for so long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, to
furnish to holders of the Securities and prospective purchasers of the
Securities 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 Company 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 time to time of the Securities and
prospective purchasers of the Securities designated by such holders);
(p) to cause the Securities to be listed on the Luxembourg Stock Exchange
in accordance with the rules and regulations thereof as promptly as practicable
and to maintain the listing of the Securities on such exchange for so long as
any Security is outstanding;
(q) during the period from the Closing Date until two years after the
Closing Date, without the prior written consent of each of the Initial
Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Securities that
16
have been reacquired by them, except for Securities purchased by the Company or
any of its affiliates and resold in a transaction registered under the
Securities Act, or in a transaction outside the United States in accordance with
Regulation S;
(r) to use their reasonable best 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 and to satisfy all conditions precedent to the
delivery of the Securities; and
(s) other than pursuant to and in accordance with the Registration Rights
Agreements, for a period of 180 days from the date of the Offering Memorandum,
not to offer for sale, sell, contract to sell or otherwise dispose of, directly
or indirectly, or file a registration statement for, or announce any offer,
sale, contract for sale of or other disposition of any debt securities issued or
guaranteed by the Company or any of its subsidiaries (other than the Securities)
without the prior written consent of the Representatives (which consent shall
not be unreasonably withheld); and
(t) to use their reasonable best efforts to have the Securities approved
for trading and duly listed on the Luxembourg Stock Exchange before the date of
the first interest payment on the Notes.
6. The several obligations of the Initial Purchasers hereunder to purchase
the Securities on the Closing Date are subject to the performance by the Company
and the Guarantor of their obligations hereunder and to the following additional
conditions:
(a) the representations and warranties of the Company and the Guarantor
contained herein are true and correct on and as of the Closing Date as if made
on and as of the Closing Date; the statements of the Company, the Guarantor and
JSG 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; and the
Company and the Guarantor shall have complied with all agreements and all
conditions on their part to be performed or satisfied hereunder at or prior to
the Closing Date;
(b) subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, suspension or
withdrawal in the rating accorded the Securities or any securities of the
Company or its subsidiaries by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act and no such organization shall have publicly announced that it
has under surveillance or review, with negative implications, its rating of any
securities of the Company or any of its subsidiaries;
(c) since the respective dates as of which information is given in the
Offering Memorandum there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material adverse
change or any development which would reasonably be expected to result in a
Material Adverse Effect, otherwise than as disclosed in the Final Memorandum,
the effect of which in the judgment of the Initial Purchasers makes it
impracticable or inadvisable to proceed with the offerings or the delivery of
the Securities on the Closing Date on the terms and in the manner contemplated
in the Offering Memorandum;
17
(d) the Initial Purchasers shall have received on and as of the Closing
Date a certificate of an officer of each of the Company and the Guarantor, with
specific knowledge about financial matters of the Company or the Guarantor, as
the case may be, reasonably satisfactory to the Representatives to the effect
set forth in subsections (a) and (b) of this Section;
(e) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, as United States and English counsel for the Company
and the Guarantor, shall have furnished to the Initial Purchasers its written
opinions, substantially in the form of Exhibits B and C attached hereto;
(f) ▇▇▇▇▇▇ ▇▇▇, as Irish counsel for the Company and the Guarantor, shall
have furnished to the Initial Purchasers its written opinion, dated the Closing
Date, substantially in the form of Exhibit D attached hereto;
(g) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as in-house counsel for JSG, shall have furnished an
opinion substantially in the form of Exhibit E attached hereto;
(h) on the date of the Offering Memorandum and on the Closing Date, Ernst &
▇▇▇▇▇, Dublin shall have furnished to the Initial Purchasers letters, dated the
respective dates of delivery thereof, in form and substance reasonably
satisfactory to the Representatives, containing statements and information of
the type customarily included in accountants "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Offering Memorandum;
(i) the Initial Purchasers shall have received an opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, United States counsel to the Initial Purchasers, dated the
Closing Date, in form and substance reasonably satisfactory to the
Representatives;
(j) the Initial Purchasers shall have received a certificate of the
Company, dated the Closing Date, in form and substance satisfactory to the
Representatives and counsel for the Initial Purchasers, as to the solvency of
the Company following the Transactions;
(k) the Securities shall have been approved for trading and duly listed on
PORTAL;
(l) the Initial Purchasers shall have received counterparts, conformed as
executed, of the Indentures which shall have been entered into by the Company,
the Guarantor, the Euro Trustee (with respect to the Euro Indenture) and the
Dollar Trustee (with respect to the Dollar Indenture);
(m) the Representatives shall have received counterparts, conformed as
executed, of the Registration Rights Agreements which shall have been entered
into by the Company and the Representatives;
(n) the Acquisition and the Senior Bank Financing shall be consummated
prior to or simultaneously with the offering of the Securities in all material
respects on the terms described in the Offering Memorandum and the Initial
Purchasers shall have received the documents governing the Senior Bank Financing
and such other documentation as they deem necessary to evidence the consummation
thereof;
18
(o) on or prior to the Closing Date the Company shall have furnished to the
Initial Purchasers such further certificates and documents as the
Representatives shall reasonably request.
7. The Company and the Guarantor, jointly and severally, agree to
indemnify and hold harmless each Initial Purchaser, each affiliate of any
Initial Purchaser which assists such Initial Purchaser in the distribution of
the Securities and each person, if any, who controls any Initial Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Offering Memorandum (and any amendment or
supplement thereto if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser expressly for use therein; PROVIDED, HOWEVER,
that the indemnification contained in this paragraph shall not inure to the
benefit of the Initial Purchasers (or to the benefit of any person controlling
the Initial Purchasers) on account of any such loss, claim, damage, liability or
expense arising from the sale of the Securities by the Initial Purchasers to any
person if a copy of the Final Memorandum (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) shall not
have been delivered or sent to such person and any untrue statement of a
material fact contained in, and any omission or alleged omission of a material
fact from, such Offering Memorandum was corrected in the Final Memorandum (as so
amended or supplemented) and it shall have been determined that any Initial
Purchaser and each person, if any, who controls such Initial Purchasers would
not have incurred such losses, claims, damages, liabilities and expenses had the
Final Memorandum been delivered or sent.
Each Initial Purchaser agrees, severally and not jointly, to indemnify and
hold harmless the Company and the Guarantor, their directors, their officers and
each person who controls the Company or the Guarantor within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity from the Company and the Guarantor to
each Initial Purchaser, but only with reference to information relating to such
Initial Purchaser furnished to the Company in writing by such Initial Purchaser
expressly for use in the Offering Memorandum or any amendment or supplement
thereto.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but
19
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the contrary, (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person, or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such reasonable fees
and expenses shall be reimbursed as they are incurred. Any such separate firm
for the Initial Purchasers, each affiliate of any Initial Purchaser which
assists such Initial Purchaser in the distribution of the Securities and such
control persons of the Initial Purchasers shall be designated in writing by
Deutsche Bank AG London, and any such separate firm for the Company and the
Guarantor, their directors, their officers and such control persons of the
Company or the Guarantor shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested that an Indemnifying
Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the Indemnifying
Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, which consent will not be unreasonably
withheld, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Person, unless
such settlement includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject matter of such proceeding and
does not include any statement as to, or any admission of, fault, culpability or
a failure to act by or on behalf of any Indemnified Party.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 Company and the Guarantor on the one hand and the
Initial Purchasers on the other hand from the offering of the Securities 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 Company and the Guarantor 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 Company and the Guarantor
on the one hand and the Initial
20
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 Company and the Guarantor and the total discounts and commissions received
by the Initial Purchasers, bear to the aggregate offering price of the
Securities. The relative fault of the Company and the Guarantor on the one hand
and the Initial Purchasers on the other shall be determined by reference to,
among 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 Company and the 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.
The Company, the Guarantor and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Initial Purchasers or the Company
and the Guarantor 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 Person 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 Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, 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 Securities 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 7 are several in proportion
to the respective principal amount of the Securities set forth opposite their
names in Schedule I hereto, and not joint. The Company and the Guarantor's
obligations to contribute pursuant to this Section 7 are joint and several.
The remedies provided for in this Section 7 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.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company, the Guarantor and the Initial
Purchasers set forth in this Agreement 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 Company and the
Guarantor, their officers, their directors or any other person controlling the
Company or the Guarantor and (iii) acceptance of and payment for any of the
Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Initial Purchasers, by notice given
to the Company and the Guarantor, 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 or by, as the case may be, any of the Irish
Stock Exchange, the Luxembourg Stock Exchange, the New York Stock Exchange, the
21
American Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of or guaranteed by JSG 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 Irish, Luxembourg, United States
federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the Initial Purchasers,
is material and adverse and which, in the reasonable judgment of the Initial
Purchasers, makes it impracticable to market the Securities on the terms and in
the manner contemplated in the Offering Memorandum.
9. If, on the Closing Date, any of the Initial Purchasers shall fail or
refuse to purchase Securities which it has agreed to purchase hereunder on such
date, and the aggregate principal amount or liquidation preference of the
Securities which such defaulting Initial Purchaser agreed but failed or refused
to purchase is not more than one-eleventh of the aggregate principal amount or
liquidation preference of the Securities to be purchased on such date, the other
Initial Purchasers shall be obligated to purchase the Securities which such
defaulting Initial Purchaser agreed but failed or refused to purchase on such
date; PROVIDED that in no event shall the principal amount or liquidation
preference of the Securities that any Initial Purchaser has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-eleventh of such principal amount of the Securities without the
written consent of such Initial Purchaser. If, on the Closing Date, any Initial
Purchaser shall fail or refuse to purchase Securities which it has agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-eleventh
of the aggregate principal amount of the Securities to be purchased on such
date, and arrangements satisfactory to the Initial Purchasers and the Company
for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Offering Memorandum or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement.
10. If this Agreement shall be terminated by the Initial Purchasers, or
either of them, (i) because of any failure or refusal on the part of either the
Company or the Guarantor to comply with the terms or to fulfill any of the
conditions of this Agreement, or (ii) if for any reason the Company and the
Guarantor shall be unable to perform their obligations under this Agreement or
any condition of the Initial Purchasers' obligations cannot be fulfilled, the
Company and the Guarantor 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 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.
11. This Agreement shall inure to the benefit of and be binding upon the
Company and the Guarantor, the Initial Purchasers, each affiliate of any Initial
Purchaser which assists such Initial Purchaser in the distribution of the
Securities, any controlling persons referred to herein
22
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 Securities
from any Initial Purchaser shall be deemed to be a successor by reason merely of
such purchase.
12. The parties hereto acknowledge and agree that, for all purposes of this
Agreement, the information furnished to the Company by the Representatives for
inclusion in the Offering Memorandum consists solely of the following
information in the Offering Memorandum: the statements concerning the Initial
Purchasers contained in the first, second and seventh, eighth and ninth
paragraphs under the heading "Plan of Distribution."
13. (a) To the extent that the Company and the Guarantor or any of their
respective 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 its obligations, liabilities or any other matter under or
arising out of or in connection with this Agreement and the transactions
contemplated hereby, the Company and the Guarantor hereby irrevocably and
unconditionally waive, and agree not to plead or claim, any such immunity and
consent to such relief and enforcement.
(b) The Company and the Guarantor irrevocably submit to the non-exclusive
jurisdiction of any federal or 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 agrees that
all claims in respect of such suit or proceeding may be determined in any such
court. The Company and the Guarantor 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 Company and the Guarantor hereby waive any objections to the
enforcement by any competent court in Ireland of any judgment validly obtained
in any such court in New York on the basis of any such legal suit, action or
proceeding. The Company and the Guarantor have each appointed National
Registered Agents, Inc. (the "Authorized Agent") as their respective authorized
agents upon whom process may be served in any such legal suit, action or
proceeding. Such appointments shall be irrevocable. National Registered Agents,
Inc. has agreed to act as said agent for service of process and the Company and
the Guarantor 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 Company and the Guarantor
further agree that service of process upon the Authorized Agent and written
notice of said service to the Company and the Guarantor shall be deemed in every
respect effective service of process upon the Company and the Guarantor in any
such legal suit, action or proceeding. Nothing herein shall affect the right 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
12(b) are intended to be effective upon the execution of this Agreement without
any further action by any of the Company or any
23
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.
(c) The Company and the Guarantor jointly and severally agree to indemnify
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 U.S. dollars (in the case of the Dollar
Securities) or euro (in the case of the Euro Securities) and as a result of any
variation as between (i) the rate of exchange at which the U.S. dollar amount or
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 date of payment of such
judgment or order is able to purchase U.S. dollars or 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 Company and the Guarantor and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, U.S. dollars or euro, as the case may
be.
14. Any action by the Initial Purchasers hereunder may be taken by the
Initial Purchasers jointly or by Deutsche Bank alone on behalf of the Initial
Purchasers, and any such action taken by the Initial Purchasers jointly or by
Deutsche Bank alone shall be binding upon the Initial Purchasers. 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 to the
Representatives at Deutsche Bank AG London, Winchester House, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (telefax number:
▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇); and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial
Center, ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
and the Head of European Leveraged Finance (telefax number: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇);
with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CityPoint, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (telefax number: +44 20
7275 6502); and to MDP Acquisitions plc, ▇▇▇▇▇▇ ▇▇▇ Building, Earlsfort Terrace,
Dublin 2, Ireland, Attention: Secretary (telefax number: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇); and
MDCP Acquisitions I, ▇▇▇▇▇▇ ▇▇▇ Building, Earlsfort Terrace, Dublin 2, Ireland,
Attention: Secretary (telefax number: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇); with a copy to ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇ (telefax: (▇▇▇) ▇▇▇ ▇▇▇▇).
The Company shall be entitled to act and rely upon any request, consent,
notice or agreement given or made on behalf of the Initial Purchasers by the
Representatives.
15. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
16. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGE FOLLOWS]
24
If the foregoing is in accordance with your understanding, please sign and
return six counterparts hereof.
Very truly yours,
MDP ACQUISITIONS PLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
MDCP ACQUISITIONS I
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Accepted: September 23, 2002
DEUTSCHE BANK AG LONDON
For itself and as Representative
of the several Initial Purchasers named
in Schedule I hereto
By: /s/ ▇. ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Title: MD
By: /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇
Title: ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
For itself and as Representative
of the several Initial Purchasers named
in Schedule I hereto
By:
------------------------------------
Name:
Title:
Accepted: September 23, 2002
DEUTSCHE BANK AG LONDON
For itself and as Representative
of the several Initial Purchasers named
in Schedule I hereto
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
For itself and as Representative
of the several Initial Purchasers named
in Schedule I hereto
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
SCHEDULE I
Aggregate Principal
Amount of Dollar Notes
Initial Purchaser To Be Purchased
--------------------- --------------------------
Deutsche Bank AG London ........................................ $ 211,187,500
▇▇▇▇▇▇▇ ▇▇▇▇▇ International..................................... $ 211,187,500
▇.▇. ▇▇▇▇▇▇ Securities Ltd...................................... $ 54,500,000
▇▇▇▇▇▇ Brothers International (Europe).......................... $ 54,500,000
ABN AMRO Bank N.V............................................... $ 13,625,000
Total: ............................... $ 545,000,000
Aggregate Principal
Amount of Euro Notes To
Initial Purchaser Be Purchased
--------------------- --------------------------
Deutsche Bank AG London ........................................ EURO 135,625,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ International..................................... EURO 135,625,000
▇.▇. ▇▇▇▇▇▇ Securities Ltd...................................... EURO 35,000,000
▇▇▇▇▇▇ Brothers International (Europe).......................... EURO 35,000,000
ABN AMRO Bank N.V............................................... EURO 8,750,000
Total: ............................... EURO 350,000,000