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«IMPORTANT NOTICE Attached please find an electronic copy of the Offering Circular (the “Offering Circular”), dated September 22, 2006 relating to ...»

-- [ Page 44 ] --

(7) Certain Resale Limitations. The purchaser is aware that no Offered Security (nor

any interest therein) may be offered or sold, pledged or otherwise transferred:

(a) in the United States or to a U.S. Person, except to a transferee (i) whom the seller reasonably believes is a Qualified Institutional Buyer, purchasing for its own account, to whom notice is given that the resale, pledge or other transfer is being made in reliance on the exemption from the registration requirements of the Securities Act provided by Rule 144A (subject to the delivery of such certifications, legal opinions or other information as the Issuer may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act) and (ii) that is a Qualified Purchaser;

(b) to a transferee acquiring an interest in a Regulation S Global Note except to a transferee that is not a U.S. Person and is acquiring such interest in an offshore transaction (within the meaning of Regulation S) in accordance with Regulation S;

(c) solely in the case of Preference Shares, (i) except to a transferee (1) whom the seller reasonably believes is a Qualified Institutional Buyer, purchasing for its own account, to whom notice is given that the resale, pledge or other transfer is being made in reliance on the exemption from the registration requirements of the Securities Act provided by Rule 144A (subject to the delivery of such certifications, legal opinions or other information as the Issuer may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act) and (2) that is a Qualified Purchaser, or (ii) after the Closing Date, to a transferee who is a Benefit Plan Investor or to a Controlling Person if, in the case of a Controlling Person, such transfer would cause the 25% Threshold to be exceeded; or (d) except in compliance with the other requirements set forth in the Indenture and/or the Preference Share Documents (as applicable) and the Notes or Preference Shares (as applicable) and in accordance with any other applicable securities laws of any relevant jurisdiction.

(8) Limited Liquidity. The purchaser understands that there is no market for the Offered Securities and that there can be no assurance that a secondary market for any of the Offered Securities will develop, or if a secondary market does develop, that it will provide the holders of such Offered Securities with liquidity of investment or that it will continue for the life of the Offered Securities. It further understands that, although the Initial Purchaser may from time to time make a market in one or more Classes of Notes or Preference Shares, the Initial Purchaser is under no obligation to do so and, following the commencement of any market-making, may discontinue the same at any time. Accordingly, the purchaser must be prepared to hold its Offered Securities for an indefinite period of time or until the applicable Stated Maturity (or, in the case of the Preference Shares, the winding-up of the Issuer).

(9) Investment Company Act. In the case of Notes, the purchaser either (a) is not a U.S. Person or (b) is a Qualified Purchaser. The purchaser agrees that no sale, pledge or other transfer of a Note (or any interest therein) may be made (i) to a transferee acquiring a Restricted Note (or any interest therein) except to a transferee that is a Qualified Purchaser, (ii) to a transferee acquiring a Regulation S Note (or any interest therein) except to a transferee that is not a U.S. Person or (iii) if such transfer would have the effect of requiring either of the Co-Issuers or the Collateral to be registered as an investment company under the Investment Company Act.

In the case of the Preference Shares, (A) the purchaser is a Qualified Purchaser; and (B) the purchaser agrees that no sale, pledge or other transfer of a Preference Share (or any interest therein) may be made (1) to a transferee acquiring a Preference Share (or any interest therein) except to a transferee that is a Qualified Purchaser or (2) if such transfer would have the effect of requiring either of the Co-Issuers or the Collateral to be registered as an investment company under the Investment Company Act.

If the purchaser is (i) a U.S. Person or (ii) is purchasing the Preference Shares, in each case, if it is an entity that would be an investment company but for the exception provided for in Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act (any such entity, an “excepted investment company”) (a) all of the beneficial owners of outstanding securities (other than shortterm paper) of such entity (such beneficial owners determined in accordance with Section 3(c)(1)(A) of the Investment Company Act) that acquired such securities on or before April 30, 1996 (“pre-amendment beneficial owners”) and (b) all pre-amendment beneficial owners of the outstanding securities (other than short-term paper) of any excepted investment company that, directly or indirectly, owns any outstanding securities of such entity, have consented to such entity’s treatment as a Qualified Purchaser in accordance with the Investment Company Act.

(10) ERISA. In the case of a purchaser of a Note, either (a) it is not (and for so long as it holds any Note or any interest therein will not be) and is not acting on behalf of (and for so long as it holds any Note or any interest therein will not be acting on behalf of) an “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA, a plan described in Section 4975(e)(1) of the Code subject to Section 4975 of the Code, an entity which is deemed to hold the assets of any such plan pursuant to 29 C.F.R. section 2510.3-101, which entity is subject to Title I of ERISA or Section 4975 of the Code that is subject to Section 4975 of the Code, or a governmental or church plan which is subject to any Similar Law, or (b) its acquisition and holding of such Note will be covered by a prohibited transaction class exemption issued by the DOL (or, in the case of governmental or church plan, will not constitute a violation of such Similar Law).





In the case of an initial purchaser of Preference Shares except as otherwise disclosed in the Investor Application Letter, the purchaser is not (i) a “Benefit Plan Investor,” as defined in the Plan Asset Regulation issued by the DOL, 29 C.F.R. §2510.3-101(f) (a “Benefit Plan Investor”) or (ii) a person other than a Benefit Plan Investor who has discretionary authority or control with respect to the assets of the Issuer or provides investment advice with respect to the assets of the Issuer for a fee, direct or indirect, or an affiliate of any such person (a “Controlling Person”). If an initial purchaser of a Preference Share is a Benefit Plan Investor that is subject to Title I of ERISA, Section 4975 of the Code or any Similar Law, it represents and warrants that its acquisition and holding of Preference Shares will not result in a non-exempt “prohibited transaction” under the foregoing provisions of ERISA and the Code or a violation of any Similar Law. The initial purchaser further understands and agrees that the information supplied above will be utilized to determine whether Benefit Plan Investors own less than 25% of the Preference Shares.

Each initial purchaser of a Preference Share understands and agrees that (1) no sale, pledge or other transfer of a Preference Share may be made after the initial placement of the Preference Shares to (i) a Benefit Plan Investor or (ii) a Controlling Person, if in the case of a Controlling Person, such transfer would cause the ownership of Preference Shares by Benefit Plan Investors to exceed the 25% threshold established under the Plan Asset Regulation and (2) that the Preference Share Documents permit the Issuer to require that any person acquiring Preference Shares (or a beneficial interest therein) after the initial sale of the Preference Shares who is determined to be a Benefit Plan Investor or a Controlling Person if, in the case of a Controlling Person, such acquisition causes the 25% Threshold to be exceeded sell such Preference Shares (or a 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 redeem such Holder’s interest in such Preference Shares.

In addition, if the purchaser of an Offered Security is, or is acting on behalf of, a Plan or an employee benefit or other plan that is not subject to Title I of ERISA or Section 4975 of the Code but is subject to provisions of a Similar Law, the fiduciaries of such Plan or such employee benefit or other plan, as applicable, represent and warrant that they have been informed of and understand the Issuer’s investment objectives, policies and strategies and that the decision to invest such Plan’s assets or such plan or employee benefit or other plan’s assets, as the case may be, in Offered Securities was made with appropriate consideration of relevant investment factors with regard to such Plan or such employee benefit or other plan, as the case may be, and is consistent with the duties and responsibilities imposed upon fiduciaries with regard to their investment decisions under such Similar Law.

(11) Limitations on Flow-Through Status. The purchaser is (a) not a Flow-Through Investment Vehicle (other than a Qualifying Investment Vehicle) and (b) if it is a Qualifying Investment Vehicle, (w) it has only one class of securities outstanding (other than any nominal share capital the distributions in respect of which are not correlated to or dependent upon distributions on, or the performance of, the Offered Securities), (x) in the case of Notes, either (1) none of the beneficial owners of its securities is a U.S. Person or (2) some or all of the beneficial owners of its securities are U.S. Persons and each such beneficial owner has certified to the purchaser that such owner is a Qualified Purchaser and (y) in the case of the Preference Shares, each such beneficial owner is a Qualified Purchaser. A purchaser is a “Flow-Through Investment Vehicle” if: (i) in the case of a purchaser that would be an investment company but for the exception in Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act, the amount of the purchaser’s investment in the Offered Securities exceeds 40% of the total assets (determined on a consolidated basis with its subsidiaries) of the purchaser, (ii) any person owning any equity or similar interest in the purchaser has the ability to control any investment decision of the purchaser (other than a general partner or similar entity) or to determine, on an investment-byinvestment basis, the amount of such person’s contribution to any investment made by the purchaser, (iii) the purchaser was organized or reorganized for the specific purpose of acquiring any Offered Securities or (iv) additional capital or similar contributions were specifically solicited from any person owning an equity or similar interest in the purchaser for the purpose of enabling the purchaser to purchase Offered Securities. A “Qualifying Investment Vehicle” means an entity as to which all of the beneficial owners of any securities issued by such entity have made, and as to which (in accordance with the document pursuant to which such entity was organized or the agreement or other document governing such securities) each such beneficial owner must require any transferee of any such security to make each of the representations set forth in this Offering Circular and (where applicable) an Investor Application Letter and/or the transfer certificate pursuant to which such Offered Securities were transferred to such entity (in each case, with appropriate modifications to reflect the indirect nature of the interests of such beneficial owners in the Offered Securities).

(12) Certain Transfers Void. The purchaser agrees that (a) any sale, pledge or other transfer of an Offered Security (or any interest therein) made in violation of the transfer restrictions contained in this Offering Circular and the Indenture or the Preference Share Documents, as applicable, or made based upon any false or inaccurate representation made by the purchaser or a transferee to the Issuer, will be void and of no force or effect and (b) none of the Issuer, the Co-Issuer, the Trustee, the Collateral Servicer and the Note Registrar (in the case of the Notes) and neither the Issuer nor the Preference Share Paying Agent (in the case of the Preference Shares) has any obligation to recognize any sale, pledge or other transfer of an Offered Security (or any interest therein) made in violation of any such transfer restriction or made based upon any such false or inaccurate representation.

The Indenture provides that if, notwithstanding the restrictions on transfer contained therein, the Issuer determines that any beneficial owner of a Restricted Note (or any interest therein) (a) is a U.S. Person and (b) is not both a Qualified Institutional Buyer and a Qualified Purchaser, then the Issuer may require, by notice to such beneficial owner, that such beneficial owner sell all of its right, title and interest to such Restricted Note (or interest therein) to a person that is (i) a non-U.S. Person in a transfer for an interest in a Regulation S Global Note, or (ii) both a Qualified Institutional Buyer and a Qualified Purchaser, with such sale to be effected within 30 days after notice of such sale requirement is given. If such beneficial owner fails to effect the transfer required within such 30-day period, (y) upon direction from the Issuer, the Trustee, on behalf of and at the expense of the Issuer, shall cause such beneficial owner’s interest in such Note to be transferred in a commercially reasonable sale arranged by the Issuer (conducted by the Trustee in accordance with Section 9-610(b) of the Uniform Commercial Code as in effect in the State of New York as applied to securities that are sold on a recognized market or that may decline speedily in value) to a person to whom such Note (or interest therein) may be transferred in accordance with the transfer restrictions set forth in the Indenture and (z) pending such transfer, no further payments will be made in respect of such Note held by such beneficial owner.



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