«IMPORTANT NOTICE Attached please find an electronic copy of the Offering Circular (the “Offering Circular”), dated September 22, 2006 relating to ...»
Section 406(a) of ERISA and Section 4975 of the United States Internal Revenue Code of 1986, as amended (the “Code”), prohibit certain transactions (“prohibited transactions”) involving the assets of ERISA Plans or plans described in Section 4975(e)(1) of the Code and subject to Section 4975 of the Code (together with ERISA Plans, “Plans”) and certain persons (collectively, “Parties in Interest” having certain relationships to such plans and entities. A Party in Interest who engages in a non-exempt prohibited transaction may be subject to non-deductible excise taxes and other penalties and liabilities under ERISA and/or the Code.
Each of the Issuer, the Co-Issuer, the Initial Purchaser and the Collateral Servicer as a result of their own activities or because of the activities of an affiliate, may be considered a Party in Interest with respect to Plans. Accordingly, prohibited transactions within the meaning of Section 406 of ERISA and Section 4975 of the Code may arise if Notes are acquired by a Plan with respect to which any of the Issuer, the Co-Issuer, the Initial Purchaser, the Collateral Servicer, the obligors on the Collateral Debt Securities or any of their respective affiliates is a Party in Interest. In addition, if a Party in Interest with respect to a Plan owns or acquires a beneficial interest in the Issuer or the Co-Issuer, the acquisition or holding of Notes by or on behalf of the Plan could be considered to constitute an indirect prohibited transaction. Moreover, the acquisition or holding of Notes or other indebtedness issued by the Issuer or the Co-Issuer by or on behalf of a Party in Interest with respect to a Plan that owns or acquires a beneficial interest in the Issuer or the Co-Issuer, as the case may be, also could give rise to an indirect prohibited transaction. Certain exemptions from the prohibited transaction rules could be applicable, however, depending in part upon the type of Plan Fiduciary making the decision to acquire a Note and the circumstances under which such decision is made. Included among these exemptions are DOL Prohibited Transaction Class Exemption (“PTCE”) PTCE 84-14, regarding transactions effected by independent “qualified professional asset managers”; PTCE 90-1, regarding investments by insurance company pooled separate accounts; PTCE 91-38, regarding investments by bank collective investment funds; PTCE 95-60, regarding investments by insurance company general accounts; and PTCE 96-23, regarding investments by certain in-house asset managers. Even if the conditions specified in one or more of these exemptions are met, the scope of the relief provided by these exemptions might or might not cover all acts which might be construed as prohibited transactions. If a purchase of Notes were to be a non-exempt prohibited transaction, the purchase might have to be rescinded.
Government plans and certain church plans, while not subject to the fiduciary responsibility provisions of ERISA or the provisions of Section 4975 of the Code, may nevertheless be subject to local, state or other Federal laws that are similar to the foregoing provisions of ERISA and the Code (a “Similar Law”).
The DOL, the government agency primarily responsible for administering the ERISA fiduciary rules and the prohibited transaction rules under ERISA and the Code, has issued a regulation (the “Plan Asset Regulation”) that, under specified circumstances, requires plan fiduciaries, and entities with certain specified relationships to a Plan, to “look through” investment vehicles (such as the Issuer) and treat as an “asset” of the Plan each underlying investment made by such investment vehicle. The Plan Asset Regulation provides, however, that if equity participation in any entity by “Benefit Plan Investors” is not significant then the “look-through” rule will not apply to such entity. “Benefit Plan Investors” are defined in the Plan Asset Regulation to include (1) any employee benefit plan (as defined in Section 3(3) of ERISA), whether or not subject to Title I of ERISA, including, without limitation, governmental plans, foreign (non-U.S.) plans and church plans, (2) any plan described in Section 4975(e)(1) of the Code, including, without limitation, individual retirement accounts and Keogh plans, and (3) any entity whose underlying assets include plan assets by reason of a plan’s investment in the entity. Equity participation by Benefit Plan Investors in an entity is significant if, immediately after the most recent acquisition of any equity interest in the entity, 25% or more of the value of any class of equity interests in the entity (excluding the value of any interests held by certain persons, other than Benefit Plan Investors, having discretionary authority or control over the assets of the entity or providing investment advice with respect to the assets of the entity for a fee, direct or indirect, or any affiliates of such persons (any such person, a “Controlling Person”)) is held by Benefit Plan Investors (the “25% Threshold”).
There is little pertinent authority in this area. However, it is not anticipated that the Class A Notes, the Class B Notes or the Class C Notes will constitute “equity interests” in the Co-Issuers.
Based primarily on the investment-grade rating of the Class D Notes, the unconditional obligation of the Issuer to pay interest and to repay principal by a fixed maturity date and the creditors’ remedies available to holders of the Class D Notes, it is anticipated that the Class D Notes should not constitute “equity interests” in the Issuer, despite their subordinated position in the capital structure of the Issuer.
No measures (such as those described below with respect to the Preference Shares) will be taken to restrict investment in the Class D Notes by Benefit Plan Investors. It should be noted that the debt treatment of the Notes for ERISA purposes could change subsequent to their issuance (i.e., they could be treated as equity) if the Issuers incur losses or the rating of such Notes changes. The risk of recharacterization is enhanced for subordinate classes of Notes.
The Issuer will attempt to ensure that the initial purchase and subsequent transfers and purchases of Preference Shares will be limited so that less than 25% of the value of all Preference Shares (disregarding Preference Shares held by Controlling Persons, such as Preference Shares held by an Affiliate of the Collateral Servicer) will be held by Benefit Plan Investors by requiring each purchaser of a Preference Share to make certain representations and agree to additional transfer restrictions described under “Transfer Restrictions”. No purchase of a Preference Share by or proposed transfer to a person that has represented that it is a Benefit Plan Investor or a Controlling Person will be permitted to the extent that such purchase or transfer would result in persons that have represented that they are Benefit Plan Investors owning 25% or more of the outstanding Preference Shares (disregarding Preference Shares held by Controlling Persons) immediately after such purchase or proposed transfer (determined in accordance with the Plan Asset Regulation and the Preference Share Paying Agency Agreement), based upon the assurances received from investors. In addition, the Initial Purchaser, the Collateral Servicer and the Trustee agree that, after the initial distribution of the Preference Shares, neither they nor any of their respective Affiliates will acquire any Preference Shares unless such acquisition would not, as determined by the Trustee, result in persons that have represented that they are Benefit Plan Investors owning 25% or more of the outstanding Preference Shares (disregarding Preference Shares held by Controlling Persons) immediately after such acquisition. Preference Shares held as principal by the Collateral Servicer, the Initial Purchaser, the Trustee, any of their respective Affiliates and persons that have represented that they are Controlling Persons will be disregarded, and will not be treated as outstanding for purposes of determining whether the 25% Threshold is exceeded, to the extent that such a Controlling Person is not a Benefit Plan Investor.
Thus, each original purchaser and each transferee of a Preference Share will be required to certify whether or not it is a Benefit Plan Investor or a Controlling Person. No transfer of Preference Shares will be effective, and neither the Issuer nor the Preference Share Paying Agent will recognize any such transfer if, after giving effect to such transfer, 25% or more of the Preference Shares would be held by Benefit Plan Investors (disregarding Preference Shares held by Controlling Persons), and no transfer of Preference Shares (or an interest therein) will be permitted after the Closing Date to a Benefit Plan Investor or a Controlling Person, if, in the case of a Controlling Person, such transfer would cause the 25% Threshold to be exceeded.
Although each such owner will be required to indemnify the Issuer for the consequences of any breach of such obligations, there is no assurance that an owner will not breach such obligations or that, if such breach occurs, such owner will have the financial capacity and willingness to indemnify the Issuer for any losses that the Issuer may suffer, including non-compliance with the 25% Threshold.
If for any reason the assets of the Issuer are deemed to be “plan assets” of a Plan because one or more such Plans is an owner of Preference Shares, certain transactions that either of the Co-Issuers might enter into, or may have entered into, in the ordinary course of its business might constitute nonexempt “prohibited transactions” under Section 406 of ERISA or Section 4975 of the Code and might have to be rescinded. In addition, if the assets of the Issuer are deemed to be “plan assets” of a Plan, the payment of certain of the fees payable to the Collateral Servicer might be considered to be a non-exempt “prohibited transaction” under Section 406 of ERISA or Section 4975 of the Code. Moreover, if the underlying assets of the Issuer were deemed to be assets constituting plan assets, (i) the assets of the Issuer could be subject to ERISA’s reporting and disclosure requirements, (ii) a fiduciary causing a Benefit Plan Investor to make an investment in the equity of the Issuer could be deemed to have delegated its responsibility to manage the assets of the Benefit Plan Investor, (iii) various providers of fiduciary or other services to the Issuer, and any other parties with authority or control with respect to the Issuer, could be deemed to be Plan fiduciaries or otherwise Parties in Interest by virtue of their provision of such services, and (iv) it is not clear that Section 404(b) of ERISA, which generally prohibits plan fiduciaries from maintaining the indicia of ownership of assets of plans subject to Title I of ERISA outside the jurisdiction of the district courts of the United States, would be satisfied in all instances.
The sale of any Offered Security to a Plan is in no respect a representation by the Issuer, the Initial Purchaser, the Collateral Servicer or any of their affiliates that such an investment meets all relevant legal requirements with respect to investments by Plans generally or any particular Plan, or that such an investment is appropriate for a Plan generally or any particular Plan.