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«Carrera Capital Finance Limited (incorporated with limited liability in Jersey) and Carrera Capital Finance LLC (organized with limited liability in ...»

-- [ Page 27 ] --

A U.S. Person (including a tax-exempt entity) that purchases the Capital Notes for cash will be required to file a Form 926 or similar form with the IRS if (i) such person owned, directly or by attribution, immediately after the transfer at least 10% by vote or value of the equity of the Issuer (including the Capital Notes) or (ii) if the transfer, when aggregated with all transfers made by such person (or any related person) within the preceding 12 month period, exceeds U.S.$100,000. In the event a U.S. Holder fails to file any such required form, the U.S. Holder could be required to pay a penalty equal to 10% of the gross amount paid for such Capital Notes (subject to a maximum penalty of U.S.$100,000, except in cases involving intentional disregard). U.S. persons should consult their tax advisors with respect to this or any other reporting requirement which may apply with respect to their acquisition of the Capital Notes.

Information Reporting and Backup Withholding

Under certain circumstances, the Code requires "information reporting", and may require "backup withholding", with respect to certain payments made on the Notes and the payment of the proceeds from the disposition of the Notes. Backup withholding generally will not apply to corporations, taxexempt organizations, qualified pension and profit sharing trusts, and individual retirement accounts.

Backup withholding will apply to a U.S. Holder if the U.S. Holder fails to provide certain identifying information (such as the U.S. Holder's taxpayer identification number) or otherwise comply with the applicable requirements of the backup withholding rules. The application for exemption from backup withholding for a U.S. Holder is available by providing a properly completed IRS Form W-9.

Backup withholding is not an additional tax and may be refunded (or credited against the U.S.

Holder's U.S. federal income tax liability, if any), provided that certain required information is furnished. The information reporting requirements may apply regardless of whether withholding is required.

U.S. Tax Treatment of Non-U.S. Holders of Notes

A Noteholder that is not a United States person within the meaning of Section 7701(a)(30) of the Code, will be exempt from any United States federal income or withholding taxes with respect to gain derived from the sale, exchange or redemption of, or any distributions received in respect of Notes unless such gain or distributions are effectively connected with the conduct of a United States trade or business by the non-U.S. Noteholder, or in the case of gain, such non-U.S. Noteholder is a nonresident alien individual who holds Notes as a capital asset and who is present in the United States for 183 days or more during a taxable year of the disposition, and certain other conditions are satisfied.

Payment of the proceeds from the disposition of Notes to or through the United States office of a broker is subject to information reporting and backup withholding unless the non-U.S. Noteholder establishes an exemption from information reporting and backup withholding.

Disclosure of Reportable Transactions and Maintenance of Participants List Disclosure Requirements for U.S. Holders Recognizing Significant Losses or Experiencing Significant Book-Tax Differences, and for Certain Preference Shareholders Any U.S. Holder of Capital Notes that claims significant losses in respect of such Securities (generally U.S.$2 million or more for individuals and partnerships with one or more noncorporate partners, and U.S.$10 million or more for corporations and partnerships consisting solely of corporate partners) in any taxable year may be required to disclose such transactions on IRS Form 8886. In addition, a U.S. Holder of 10% of the Capital Notes could be subject to these disclosure requirements if the Issuer recognizes losses of $10 million or more with respect to a transaction or enters into a transaction that is offered under conditions of confidentiality in any taxable year. Recent legislation imposes significant penalties on taxpayers who participate in such "reportable transactions" and fail to make the required disclosure. The penalty is generally U.S.$10,000 for natural persons and $50,000 for other persons (increased to U.S.$100,000 and U.S.$200,000, respectively, if the reportable transaction is a "listed" transaction). Should the Issuer become aware that a U.S. Holder's investment in Capital Notes has become such a "reportable transaction," the Issuer will so inform the holders of Capital Notes receiving "PFIC Annual Information Statements" as described above in "Investment in a Passive Foreign Investment Company" and provide, or cause its accountants to provide, all information available to it which is necessary for such holders to comply with these disclosure requirements. Prospective investors should consult their tax advisers concerning any possible disclosure obligation with respect to the Notes.

SUBSCRIPTION AND SALE

Notes may be sold from time to time by the Issuer and, if applicable, the Co-Issuer to the Dealers or to purchasers procured by the Dealers. The arrangements under which Notes may from time to time be agreed to be sold by the Issuer to, and purchased by, Dealers are set out in the Dealer Agreement. Any such agreement will, inter alia, make provision for the form and terms and conditions of the relevant Notes, the price at which such Notes will be purchased by the Dealers and the commissions or other agreed deductibles (if any) payable or allowable by the Issuer in respect of such purchase. The Dealer Agreement makes provision for the resignation or termination of appointment of existing Dealers and for the appointment of additional or other Dealers either generally in respect of the Programme or in relation to a particular Tranche of Notes.





Notes sold in the United States pursuant to Rule 144A will be offered by the U.S. Dealers listed on the cover of this Base Prospectus and Notes sold pursuant to Regulation S will be offered by the Euro Dealers listed on the cover of this Base Prospectus.

Each prospective initial purchaser of the Notes offered in reliance on Rule 144A and each prospective initial purchaser of the Notes offered in reliance on Regulation S under the Securities Act (collectively, the "Initial Offerees") will be deemed to have represented, acknowledged and agreed as

follows:

(a) The Initial Offeree acknowledges that this Base Prospectus (together with any relevant Final Terms and any relevant Supplemental Prospectus (collectively, the "Offering Documents")) is personal to the Initial Offeree and does not constitute an offer to any other person or to the public generally to subscribe for or otherwise acquire the Notes other than pursuant to Rule 144A or in offshore transactions in accordance with Regulation S. Distribution of the Offering Documents or disclosure of any of their contents to any person other than the Initial Offeree and those persons, if any, retained to advise the Initial Offeree with respect thereto and other persons meeting the requirements of Rule 144A or another exemption from registration from the Securities Act or Regulation S is unauthorised and any disclosure of any of the contents of the Offering Documents, without the prior written consent of the Issuer, is prohibited.

(b) The Initial Offeree agrees to make no photocopies of the Offering Documents or any documents referred to herein or therein and, if received in any electronic format, agrees not to disclose or alter the contents of the Offering Documents or to forward a copy of all or any portion hereof or thereof by electronic mail or any other means to any person other than the person receiving electronic transmission hereof or thereof from the Dealer and any person retained to advise the person receiving such electronic transmission with respect to the offering contemplated herein. If the Initial Offeree does not purchase the Notes or the offering is terminated, it agrees to return all Offering Documents and all other documents referred to herein or therein to Carrera Capital Finance Limited, Whiteley Chambers, Don Street, St. Helier, Jersey JE4 9WG, Attention: The Directors or, at the sole election and direction of the Dealer, to permanently delete any electronic copy thereof.

(c) The Initial Offeree has carefully read and understands the Offering Documents, including, without limitation, the "Risk Factors" section herein, and has based its decision to purchase the Notes upon the information contained herein and not on any other information. The Initial Offeree is not purchasing the Notes with a view to the resale, distribution or other disposition thereof in violation of the Securities Act.

United States of America:

Initial Offers and Sales of Notes The Notes (or beneficial interests therein) have not been, and are not expected to be, registered under the Securities Act, the securities laws of any state of the United States or the securities laws of any other jurisdiction. Neither the Issuer nor the Co-Issuer has registered and does not intend to register as an investment company under the Investment Company Act, in reliance on the exception provided by Section 3(c)(7) of the Investment Company Act.

The Notes are being offered (i) outside of the United States to non-U.S. persons in reliance on Regulation S, and (ii) within the United States or to or for the account or benefit of U.S. persons in reliance on Rule 144A. The Notes may not be offered, sold or delivered within the United States or to or for the account or benefit of any person that is a U.S. person unless, among other things, such person is both (1) a QIB and (2) a QP, acting for its own account or the account of another QIB which is a QP, and meets the other requirements set forth herein.

Interests in the Notes may not be reoffered, resold, pledged or otherwise transferred unless registered pursuant to, or in transactions exempt from or not subject to the registration requirements of, the Securities Act and any other applicable securities laws. By its purchase or acquisition of Notes (or beneficial interest therein), such purchaser will be deemed to represent, warrant acknowledge and agree or, in the case of registered definitive notes, will be required to certify that it will only resell or otherwise transfer such Notes (or beneficial interest therein) in accordance with the applicable restrictions set forth in the Notes and herein. Any resale or other transfer of a Note (or beneficial interest therein) which is not made in compliance with the transfer restrictions set forth therein shall be null and void and not honoured by the Issuer.

Representations and Restrictions on Purchasers and Transferees Purchasers' Representations and Warranties

Rule 144A Notes:

Each person who purchases or otherwise acquires a Rule 144A Note (or a beneficial interest therein) will be required, in a transfer certificate, to represent, warrant, acknowledge and agree, for the benefit of the Issuer and the Co-Issuer, that it and any person for which it is acting will not reoffer, resell, pledge, exchange or otherwise transfer such Rule 144A Note or any beneficial interest therein except in compliance with the Securities Act and all other applicable laws of any jurisdiction and except (a) to a person it reasonably believes to be both a QIB (as defined below) and a QP (as defined below) in a transaction meeting the requirements of Rule 144A under the Securities Act; or (b) in an offshore transaction meeting the requirements of Regulation S under the Securities Act and the transfer restrictions applicable to Regulation S Notes; or (c) to Carrera Capital Finance Limited or to HSH Nordbank SA.

Each person that purchases or otherwise acquires a Rule 144A Note or a beneficial interest in any Rule 144A Note will be required to certify in a transfer certificate delivered to the Principal Paying

Agent and the Issuer that either (A):

–  –  –

(b) it, and each person for which it is acting, is aware that the sale, resale, pledge, exchange or other transfer of the Rule 144A Notes (or beneficial interest therein) is

–  –  –

(h) it will not institute against, or join any person instituting against, the Issuer or the CoIssuer any bankruptcy, reorganisation, arrangement, insolvency or liquidation proceeding under any federal or state bankruptcy or similar law, for two years and a day (or, if longer, the preference period then in effect) after the date the latest maturing Senior Note, Senior Subordinated Note or Capital Note is paid in full, or (B) it and each person for which it is acting (1) is not a U.S. person within the meaning of Regulation S, (2) is taking delivery of an interest in a Regulation S Note in an offshore transaction meeting the requirements of Regulation S and the transfer restrictions applicable to Regulation S Notes and, if applicable, in a transaction that has received the prior written authorisation of the Issuer, and (3) the transferee has provided to the Principal Paying Agent and the Issuer the transfer certificate(s) applicable to transfers of Regulation S Notes (or beneficial interest therein).

"QIB" means a "qualified institutional buyer" as defined under Rule 144A.

"QP" means a "qualified purchaser" as defined under Section 2(a)(51)(A) of the Investment Company

Act and the rules and regulations thereunder, and that is not:

–  –  –

(d) an investment company excepted from the Investment Company Act pursuant to Section 3(c)(1) or Section 3(c)(7) thereof (or a foreign investment company under Section 7(d) thereof relying on Section 3(c)(1) or 3(c)(7) with respect to its holders that are U.S. persons), which was formed on or before 30 April 1996, unless it has received the consent of its beneficial owners who acquired their interests on or before 30 April 1996, with respect to its treatment as a QP in the manner required by Section 2(a)(51)(C) of the Investment Company Act and the rules promulgated thereunder;

(e) a: (a) partnership; (b) common trust fund; or (c) special trust, pension fund or profit sharing or retirement plan, or other entity, in which the partners, beneficiaries, beneficial owners, participants or other equity owners, as the case may be, may designate the particular investments to be made, or the allocation thereof; or

–  –  –



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