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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 46 ] --

INSTITUTIONAL BUYER” (A QUALIFIED INSTITUTIONAL BUYER) WITHIN THE MEANING

OF RULE 144A UNDER THE SECURITIES ACT (RULE 144A), 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 SECURITIES ACT

REGISTRATION 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), (B) TO A PERSON THAT IS

ALSO A QUALIFIED PURCHASER WITHIN THE MEANING OF SECTION 3(C)(7) OF THE

INVESTMENT COMPANY ACT AND THE RULES THEREUNDER, (C) IN COMPLIANCE WITH

THE CERTIFICATION AND OTHER REQUIREMENTS SPECIFIED IN THE ISSUER CHARTER

AND THE PREFERENCE SHARE PAYING AGENCY AGREEMENT REFERRED TO HEREIN

AND (D) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY RELEVANT

JURISDICTION. NEITHER THE ISSUER NOR THE COLLATERAL HAS BEEN REGISTERED

UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE INVESTMENT

COMPANY ACT). NO TRANSFER OF A PREFERENCE SHARE (OR ANY INTEREST

THEREIN) MAY BE MADE (AND NEITHER THE ISSUER NOR THE PREFERENCE SHARE

REGISTRAR WILL RECOGNIZE ANY SUCH TRANSFER) IF (A) SUCH TRANSFER WOULD

BE MADE TO A TRANSFEREE THAT IS NOT (I) A “QUALIFIED PURCHASER” AS DEFINED IN

SECTION 2(a)(51)(A) OF THE INVESTMENT COMPANY ACT OR (II) A COMPANY EACH OF

WHOSE BENEFICIAL OWNERS IS A “QUALIFIED PURCHASER” (ANY PERSON DESCRIBED

IN CLAUSES (I) OR (II), A QUALIFIED PURCHASER), (B) SUCH TRANSFER WOULD HAVE

THE EFFECT OF REQUIRING THE ISSUER OR THE COLLATERAL TO REGISTER AS AN

INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY ACT, (C) SUCH TRANSFER

IS MADE AFTER THE INITIAL SALE OF THE PREFERENCE SHARES TO A BENEFIT PLAN

INVESTOR (AS DEFINED BELOW) OR TO 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 IS AN AFFILIATE OF

ANY SUCH PERSON (A CONTROLLING PERSON), EXCEPT IN THE CASE OF A TRANSFER

TO A CONTROLLING PERSON, IF SUCH TRANSFER WOULD NOT CAUSE EQUITY

PARTICIPATION BY BENEFIT PLAN INVESTORS TO EQUAL OR EXCEED 25% OF THE

VALUE OF ANY CLASS OF EQUITY INTERESTS IN THE ISSUER (EXCLUDING THE VALUE

OF ANY INTERESTS HELD BY CONTROLLING PERSONS) (THE 25% THRESHOLD),

(D) SUCH TRANSFER WOULD BE MADE TO A PERSON THAT IS A FLOW-THROUGH

INVESTMENT VEHICLE OTHER THAN A QUALIFYING INVESTMENT VEHICLE (EACH AS

DEFINED IN THE TRANSFER CERTIFICATE ATTACHED TO THE PREFERENCE SHARE

PAYING AGENCY AGREEMENT) AND IF IT IS A QUALIFYING INVESTMENT VEHICLE EACH

SUCH BENEFICIAL OWNER HAS CERTIFIED THAT SUCH OWNER IS A QUALIFIED

PURCHASER OR (E) SUCH TRANSFER WOULD BE MADE TO A PERSON WHO IS

OTHERWISE UNABLE TO MAKE THE CERTIFICATIONS AND REPRESENTATIONS

REQUIRED BY THE APPLICABLE TRANSFER CERTIFICATE OR INVESTOR APPLICATION

LETTER, AS APPLICABLE, ATTACHED AS AN EXHIBIT TO THE PREFERENCE SHARE

PAYING AGENCY AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, AN INVESTOR IN

PREFERENCE SHARES MUST BE PREPARED TO BEAR THE ECONOMIC RISK OF SUCH

INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. IF, NOTWITHSTANDING THE

RESTRICTIONS SET FORTH IN THE PREFERENCE SHARE PAYING AGENCY

AGREEMENT, THE ISSUER DETERMINES THAT ANY HOLDER OF THIS SECURITY OR AN

INTEREST HEREIN IS NOT BOTH (A) A QUALIFIED INSTITUTIONAL BUYER AND (B) A

QUALIFIED PURCHASER, THE ISSUER MAY REQUIRE, BY NOTICE TO SUCH HOLDER

THAT SUCH HOLDER SELL ALL OF ITS RIGHT, TITLE AND INTEREST TO THIS SECURITY

(OR INTEREST HEREIN) TO A PERSON THAT IS BOTH (1) A QUALIFIED INSTITUTIONAL

BUYER AND (2) A QUALIFIED PURCHASER, WITH SUCH SALE TO BE EFFECTED WITHIN





30 DAYS AFTER NOTICE OF SUCH SALE REQUIREMENT IS GIVEN. IF SUCH HOLDER

FAILS TO EFFECT THE TRANSFER REQUIRED WITHIN SUCH 30-DAY PERIOD, (X) UPON

WRITTEN DIRECTION FROM THE ISSUER, THE PREFERENCE SHARE PAYING AGENT

SHALL, AND IS HEREBY IRREVOCABLY AUTHORIZED BY SUCH HOLDER TO, CAUSE

SUCH HOLDER’S INTEREST IN THIS SECURITY TO BE TRANSFERRED IN A

COMMERCIALLY REASONABLE SALE ARRANGED BY THE ISSUER (CONDUCTED BY THE

PREFERENCE SHARE PAYING AGENT IN ACCORDANCE WITH SECTION 9-610 OF THE

UCC AS IN EFFECT IN THE STATE OF NEW YORK AS APPLIED TO SECURITIES THAT ARE

SOLD ON A RECOGNIZED MARKET OR ARE THE SUBJECT OF WIDELY DISTRIBUTED

STANDARD PRICE QUOTATIONS) TO A PERSON THAT CERTIFIES TO THE PREFERENCE

SHARE PAYING AGENT, THE ISSUER AND THE COLLATERAL SERVICER, IN CONNECTION

WITH SUCH TRANSFER, THAT SUCH PERSON IS BOTH (1) A QUALIFIED INSTITUTIONAL

BUYER AND (2) A QUALIFIED PURCHASER, AND (Y) PENDING SUCH TRANSFER, NO

FURTHER PAYMENTS WILL BE MADE IN RESPECT OF THE INTEREST IN THIS SECURITY

HELD BY SUCH HOLDER, AND THE INTEREST IN THIS SECURITY SHALL NOT BE DEEMED

TO BE OUTSTANDING FOR THE PURPOSE OF ANY VOTE OR CONSENT OF THE

HOLDERS OF THE PREFERENCE SHARES.

EACH ORIGINAL PURCHASER OF PREFERENCE SHARES WILL BE REQUIRED TO

CERTIFY THAT ITS INVESTMENT IN PREFERENCE SHARES WILL NOT RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE UNITED STATES

EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION

4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (OR, IN THE CASE OF A

GOVERNMENTAL OR CHURCH PLAN, A VIOLATION OF A MATERIALLY SIMILAR FEDERAL,

STATE OR LOCAL LAW). EACH TRANSFEREE OF PREFERENCE SHARES AFTER THE

INITIAL PURCHASE THEREOF WILL BE REQUIRED TO CERTIFY THAT IT IS NOT A

BENEFIT PLAN INVESTOR AND WHETHER IT IS A CONTROLLING PERSON. THE ISSUER

MAY REQUIRE 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 UNDER THE PLAN ASSET REGULATION ISSUED BY THE UNITED STATES

DEPARTMENT OF LABOR, 29 C.F.R. § 2510.3-101, TO BE EXCEEDED TO 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 SELL SUCH

HOLDER’S INTEREST IN SUCH PREFERENCE SHARES.

“BENEFIT PLAN INVESTOR” MEANS ANY (i) “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN

SECTION 3(3) OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT

OF 1974, AS AMENDED (“ERISA”)), WHETHER OR NOT SUBJECT TO TITLE I OF ERISA,

INCLUDING, WITHOUT LIMITATION, GOVERNMENTAL PLANS, FOREIGN (NON-U.S.)

PLANS AND CHURCH PLANS, (ii) “PLAN” (AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)), INCLUDING, WITHOUT

LIMITATION, INDIVIDUAL RETIREMENT ACCOUNTS AND KEOGH PLANS OR (iii) ENTITY

WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF SUCH AN

EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, INCLUDING,

WITHOUT LIMITATION, AS APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT.

“CONTROLLING PERSON” MEANS 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 IS AN AFFILIATE OF ANY SUCH

PERSON.

Investor Representations on Resale

Except as provided below, each transferor and transferee of an Offered Security will be required to deliver a duly executed certificate in the form of the relevant exhibit attached to the Indenture or the Preference Share Paying Agency Agreement, as the case may be, and such other certificates and other information as the Issuer, the Co-Issuer, the Trustee or the Preference Share Paying Agent may reasonably require to confirm that the proposed transfer complies with the transfer restrictions contained in this Offering Circular and the Indenture or the Preference Share Documents, as applicable.

An owner of a beneficial interest in a Restricted Global Note may transfer such interest in the form of a beneficial interest in such Restricted Global Note without the provision of written certification.

Each transferee of a beneficial interest in a Global Note will be deemed to make the applicable representations and warranties described herein.

Each transferee of an Offered Security that is required to deliver a transfer certificate will be required, pursuant to such transferee certificate, and each transferee that is not required to deliver a certificate will be deemed, (a) to acknowledge, represent and warrant to and agree with the Co-Issuers (or, in the case of a Class D Note, the Issuer) and the Trustee (in the case of a Note) or the Issuer and the Preference Share Paying Agent (in the case of a Preference Share) as to the matters set forth in each of paragraphs (1) through (19) above as if each reference therein to “the purchaser” were instead a reference to the transferee and (b) to further represent and warrant to and agree with the Co-Issuers (or, in the case of a Class D Note, the Issuer) and the Trustee (in the case of a Note) or to the Issuer and the

Preference Share Paying Agent (in the case of a Preference Share) as follows:

(1) In the case of a transferee who takes delivery of a Restricted Note (or a beneficial interest therein) or a Preference Share (or a beneficial interest therein), it is a Qualified Institutional Buyer and also a Qualified Purchaser and is acquiring such Restricted Note (or beneficial interest therein) or a Preference Share (or a beneficial interest therein) for its own account and is aware that such transfer is being made to it in reliance on Rule 144A. In addition, it (i) is not a dealer described in paragraph (a)(1)(ii) of Rule 144A unless such purchaser owns and invests on a discretionary basis at least U.S.$25,000,000 in securities of issuers that are not affiliated persons of the dealer, (ii) is not a plan referred to in paragraph (a)(1)(i)(D) or (a)(1)(i)(E) of Rule 144A, or a trust fund referred to in paragraph (a)(1)(i)(F) of Rule 144A that holds the assets of such a plan, unless investment decisions with respect to the plan are made solely by the fiduciary, trustee or sponsor of such plan and (iii) it will provide written notice of the foregoing, and of any applicable restrictions on transfer, to any transferee.

(2) In the case of a transferee who takes delivery of a Regulation S Note (or a beneficial interest therein), it is not a U.S. Person and is acquiring such Regulation S Note (or beneficial interest therein) for its own account and not for the account or benefit of a U.S. Person in an offshore transaction in accordance with Regulation S.



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