«IMPORTANT NOTICE Attached please find an electronic copy of the Offering Circular (the “Offering Circular”), dated September 22, 2006 relating to ...»
BENEFICIAL INTEREST THEREIN) TO A PERSON WHO IS NOT A BENEFIT PLAN INVESTOR OR A
CONTROLLING PERSON AND WHO MEETS ALL OTHER APPLICABLE TRANSFER RESTRICTIONS
AND, IF SUCH HOLDER DOES NOT COMPLY WITH SUCH DEMAND WITHIN 30 DAYS THEREOF,
THE ISSUER MAY SELL SUCH HOLDER’S INTEREST IN SUCH PREFERENCE SHARES.
ANY PLAN FIDUCIARY THAT PROPOSES TO CAUSE A PLAN TO PURCHASE OFFERED
SECURITIES SHOULD CONSULT WITH ITS OWN LEGAL AND TAX ADVISORS WITH RESPECT TO
THE POTENTIAL APPLICABILITY OF ERISA AND THE CODE TO SUCH INVESTMENTS, THE
CONSEQUENCES OF SUCH AN INVESTMENT UNDER ERISA AND THE CODE AND THE ABILITY
TO MAKE THE REPRESENTATIONS DESCRIBED ABOVE. MOREOVER, EACH PLAN FIDUCIARY
SHOULD DETERMINE WHETHER, UNDER THE GENERAL FIDUCIARY STANDARDS OF ERISA, AN
INVESTMENT IN THE OFFERED SECURITIES IS APPROPRIATE FOR THE PLAN, TAKING INTO
ACCOUNT THE OVERALL INVESTMENT POLICY OF THE PLAN AND THE COMPOSITION OF THE
PLAN’S INVESTMENT PORTFOLIO. NO TRANSFER OF A PREFERENCE SHARE WILL BE
EFFECTIVE, AND NEITHER THE ISSUER NOR THE PREFERENCE SHARE PAYING AGENT WILL
RECOGNIZE ANY SUCH TRANSFER IF SUCH TRANSFER IS TO A BENEFIT PLAN INVESTOR.It should be noted that an insurance company’s general account may be deemed to include assets of ERISA Plans under certain circumstances, e.g., where an ERISA Plan purchases an annuity contract issued by such an insurance company, based on the reasoning of the United States Supreme Court in John Hancock Mutual Life Ins. Co. v. Harris Trust and Savings Bank, 510 U.S. 86 (1993). An insurance company considering the purchase of Offered Securities with assets of its general account should consider such purchase and the insurance company’s ability to make the representations described above in light of John Hancock Mutual Life Ins. Co. v. Harris Trust and Savings Bank, Section 401(c) of ERISA and 29 C.F.R. §2550.401C.
The discussion of ERISA and Section 4975 of the Code contained in this Offering Circular, is, of necessity, general, and does not purport to be complete. Moreover, the provisions of ERISA and Section 4975 of the Code are subject to extensive and continuing administrative and judicial interpretation and review. Therefore, the matters discussed above may be affected by future regulations, rulings and court decisions, some of which may have retroactive application and effect.
PLAN OF DISTRIBUTION
The Notes and the Preference Shares are offered by Credit Suisse Securities (USA) LLC as initial purchaser (“Credit Suisse” or the “Initial Purchaser”) or through one or more of its affiliates, subject to prior sale, when, as and if issued. The Issuer and the Initial Purchaser will enter into a Purchase Agreement (the “Purchase Agreement”) relating to the purchase and sale of the Offered Securities to be delivered on the Closing Date. In the Purchase Agreement, the Co-Issuers will agree to sell to the Initial Purchaser, and the Initial Purchaser will agree to purchase, the entire principal amount of the Notes and all of the Preference Shares as set forth in the Purchase Agreement, and to privately place such Notes and Preference Shares with eligible investors. Credit Suisse will act as the sole book runner and lead manager for the Offering. The Notes and the Preference Shares may be sold by the Initial Purchaser at varying prices. The obligations of the Initial Purchaser under the Purchase Agreement will be subject to the satisfaction of certain conditions set forth in the Purchase Agreement. Pursuant to the Purchase Agreement, each of the Co-Issuers will agree to indemnify the Initial Purchaser against certain liabilities, including liabilities under the Securities Act, or to contribute to payments the Initial Purchaser may be required to make in respect thereof.
It is expected that, on or about the Closing Date, the Collateral Servicer and/or its Affiliates will purchase 100% of the Preference Shares. The Co-Issuers have been advised by the Initial Purchaser that the Initial Purchaser proposes to sell the Offered Securities (a) in the United States or to or for the benefit or account of U.S. Persons, to Qualified Institutional Buyers that are also Qualified Purchasers, in reliance on Rule 144A or another applicable exemption from the registration requirements of the Securities Act and (b) through one or more of its affiliates, acting as its sales agent, to certain persons who are not U.S. Persons in offshore transactions in reliance on Regulation S under the Securities Act.
The Preference Shares are being offered within and outside the United States only to “Qualified Institutional Buyers” (as defined under Rule 144A under the Securities Act) that are also “Qualified Purchasers” (as defined herein).
United States The Offered 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 pursuant to an applicable exemption from the registration requirements under the Securities Act.
(1) In the Purchase Agreement, the Initial Purchaser will represent and agree that it has not offered or sold Offered Securities and will not offer or sell any Offered Securities as part of its distribution at any time within the United States or to, or for the account or benefit, of U.S. Persons except, in either case, in accordance with Rule 144A and that it will send to each other dealer to which it sells any of the Offered Securities during the restricted period (unless the sale is made in accordance with Rule 144A or in a transaction otherwise exempt from registration under the Securities Act) a confirmation or other notice setting forth the restrictions on offers and sales of the Notes or Preference Shares, as the case may be, within the United States or to, or for the account or benefit of, U.S. Persons. Resales of the Offered Securities are restricted as described under “Transfer Restrictions” herein.
(2) In the Purchase Agreement, the Initial Purchaser will agree that it will not, acting either as principal or agent, offer or sell any Offered Securities in the United States other than Offered Securities in registered form bearing a restrictive legend thereon, and it will not, acting either as principal or agent, offer, sell, reoffer or resell any of such Offered Securities (or approve the resale of any of such Offered
(a) except (1) inside the United States through a U.S. broker dealer that is registered under the Exchange Act to investors, each of which the Initial Purchaser reasonably believes is a Qualified Institutional Buyer or (2) otherwise in accordance with the restrictions on transfer set forth in such Offered Securities, the Purchase Agreement and this Offering Circular; or (b) by means of any form of general solicitation or general advertisement, including but not limited to (1) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio and (2) any seminar or meeting whose attendees have been advised by any general solicitation or general advertising. Prior to the sale of any Offered Securities in registered form bearing a restrictive legend thereon, the Initial Purchaser will have provided each offeree that is a U.S. Person with a copy of the Offering Circular in the form the Issuer and the Initial Purchaser will have agreed most recently will be used for offers and sales in the United States.
(3) In the Purchase Agreement, the Initial Purchaser will represent and agree that in connection with each sale to a Qualified Institutional Buyer it has taken or will take reasonable steps to ensure that the purchaser is aware that the Offered Securities have not been and will not be registered under the Securities Act and that transfers of Offered Securities are restricted as set forth herein.
The Initial Purchaser will also represent and agree as follows:
(1) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000) received by it in connection with the issue or sale of any Offered Securities in circumstances in which Section 21(1) of said Act would not apply to the Co-Issuers; and (2) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act 2000 with respect to anything done by it in relation to the Offered Securities in, from or otherwise involving the United Kingdom.
Cayman Islands The Initial Purchaser will represent and agree that it has not made and will not make any invitation to the public in the Cayman Islands to subscribe for the Offered Securities.
General No action has been or will be taken in any jurisdiction that would permit a public offering of the Offered Securities or the possession, circulation or distribution of this Offering Circular or any other material relating to the Issuer or the Offered Securities in any country or jurisdiction where action for that purpose is required. Accordingly, the Offered Securities may not be offered or sold, directly or indirectly, and neither this Offering Circular nor any other offering material or advertisements in connection with the Offered Securities may be distributed or published, in or from any country or jurisdiction, except under circumstances that will result in compliance with any applicable rules and regulations of any such country or jurisdiction.
The Issuer will pay all other fees and expenses in connection with the Offering as set forth in the Purchase Agreement. Details of any such fees and expenses will be made available upon request. The Co-Issuers extend to each prospective investor the opportunity, prior to the consummation of the sale of the Offered Securities, to ask questions of and receive answers from the Issuer or a person or persons acting on behalf of the Issuer, including the Initial Purchaser, concerning the Offered Securities and the terms and conditions of this Offering and to obtain any additional information it may consider necessary in making an informed investment decision and any information in order to verify the accuracy of the information set forth herein, to the extent that the Issuer possesses the same or can acquire the same without unreasonable effort and expense. Requests for such additional information can be directed to Credit Suisse at 11 Madison Avenue, New York, New York, 10010, Attention: The CDO Group.
Purchasers of the Offered Securities may be required to pay stamp taxes and other charges in accordance with the laws and practices of the country of purchase in addition to the purchase price.
Purchasers of the Offered Securities will be required, as a condition to payment of amounts on the Offered Securities without the imposition of withholding tax, to provide certain certifications with respect to any applicable taxes or reporting requirements of the United States or the Cayman Islands.
Each Original Purchaser of a Preference Share will be required to execute and deliver an Investor Application Letter in form and substance satisfactory to the Initial Purchaser and the Issuer.
The Offered Securities are a new issue of securities for which there currently is no market. The Initial Purchaser has advised the Issuer that it intends to make a market in the Offered Securities as permitted by applicable law. It is not obligated, however, to make a market in any of the Offered Securities and any market making may be discontinued at any time at its sole discretion. Accordingly, no assurances can be given as to the development or liquidity of any market of the Offered Securities.
In connection with this offer, the Initial Purchaser or its affiliates may engage in over-allotment, stabilizing transactions, covering transactions and penalty bids in accordance with Regulation M under the Securities Exchange Act of 1934, as amended. The stabilizing transactions, covering transactions and penalty bids may cause the price of the Notes to be higher than it would otherwise be in the absence of these transactions. The transactions, if commenced, may be discontinued at any time.
See “Risk Factors-Certain Conflicts of Interest-Certain Conflicts of Interest Involving the Initial Purchaser” for a description of potential conflicts of interest involving the Initial Purchaser and/or its affiliates.
Global Notes Investors may hold their interests in a Regulation S Global Note directly through Euroclear or Clearstream, if they are participants in such systems, or indirectly through organizations which are participants in such systems. Euroclear and Clearstream will hold interests in Regulation S Global Notes on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositaries, which in turn will hold such interests in such Regulation S Global Note in customers’ securities accounts in the depositaries’ names on the books of DTC. Investors may hold their interests in a Restricted Global Note directly through DTC, if they are Participants in such system, or indirectly through organizations which are Participants in such system.