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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 29 ] --

AS AN INVESTMENT COMPANY UNDER THE UNITED STATES INVESTMENT COMPANY

ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"), IN RELIANCE ON

THE EXCEPTION PROVIDED BY SECTION 3(c)(7) OF THE INVESTMENT COMPANY ACT.

THIS NOTE AND BENEFICIAL INTERESTS IN THIS NOTE MAY NOT BE REOFFERED,

RESOLD, PLEDGED, EXCHANGED OR OTHERWISE TRANSFERRED IN VIOLATION OF

THE SECURITIES ACT OR SUCH OTHER SECURITIES LAWS. EACH PERSON WHO

PURCHASES OR OTHERWISE ACQUIRES THIS NOTE (OR A BENEFICIAL INTEREST

HEREIN) IS 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 THIS NOTE OR ANY BENEFICIAL

INTEREST HEREIN 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 QP (AS

DEFINED BELOW) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A

UNDER THE SECURITIES ACT ("RULE 144A") (IN WHICH CASE IT WILL INFORM SUCH

PERSON THAT THE TRANSFER TO SUCH PERSON IS BEING MADE IN RELIANCE ON

RULE 144A); OR (B) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF

REGULATION S UNDER THE SECURITIES ACT ("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; OR (C) TO THE ISSUER OR TO HSH NORDBANK SECURITIES SA.

"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:

(a) A BROKER-DEALER WHICH OWNS AND INVESTS ON A DISCRETIONARY

BASIS LESS THAN U.S.$25 MILLION IN SECURITIES OF UNAFFILIATED

ISSUERS;

(b) A PARTICIPANT-DIRECTED EMPLOYEE PLAN, SUCH AS A 401(k) PLAN,

OR A TRUST FUND HOLDING THE ASSETS OF SUCH PLAN;

–  –  –

(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

(f) AN ENTITY THAT HAS INVESTED MORE THAN 40% OF ITS ASSETS IN

THE NOTES (OR BENEFICIAL INTERESTS THEREIN) AND/OR OTHER

SECURITIES OF THE ISSUER AFTER GIVING EFFECT TO THE PURCHASE

OF THE NOTES (OR BENEFICIAL INTERESTS THEREIN).

EACH PURCHASER OR TRANSFEREE HEREOF WILL BE REQUIRED, IN A TRANSFER

CERTIFICATE, TO REPRESENT, WARRANT, ACKNOWLEDGE AND AGREE, THAT

EITHER:

(A)

–  –  –

(c) IT, AND EACH ACCOUNT FOR WHICH IT IS PURCHASING OR OTHERWISE

ACQUIRING NOTES (OR BENEFICIAL INTEREST THEREIN), WILL HOLD

AT LEAST U.S.$250,000 (OR ITS EQUIVALENT IN ANY OTHER CURRENCY IN WHICH RULE 144A NOTES MAY BE ISSUED) OF RULE 144A NOTES (OR

BENEFICIAL INTEREST THEREIN);

–  –  –

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).

IN ACQUIRING THIS RULE 144A NOTE (OR BENEFICIAL INTEREST HEREIN), THE

TRANSFEREE MAY SEEK THE PRIOR WRITTEN AUTHORISATION OF THE ISSUER AND A

WRITTEN OPINION OF THE ISSUER'S COUNSEL THAT SUCH TRANSACTION WILL NOT

AFFECT THE ISSUER'S OR THE CO-ISSUER'S ABILITY TO RELY ON THE SECTION 3(c)(7)

EXCEPTION FROM THE INVESTMENT COMPANY ACT. THE REGISTRAR MAY RELY

UPON ANY SUCH AUTHORISATION OR OPINION FOR ALL PURPOSES HEREUNDER

WITHOUT FURTHER INQUIRY.

THE ISSUER AND THE PRINCIPAL PAYING AGENT MAY REQUIRE THE HOLDER TO

PROVIDE THEM WITH AN OPINION OF COUNSEL ADDRESSED TO AND SATISFACTORY

TO THEM TO THE EFFECT THAT SUCH REOFFER, RESALE, EXCHANGE, PLEDGE OR

OTHER TRANSFER IS EXEMPT FROM OR NOT SUBJECT TO REGISTRATION UNDER THE

SECURITIES ACT AND WILL NOT REQUIRE THE ISSUER OR THE CO-ISSUER TO

REGISTER AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY ACT.

IN ADDITION, EACH PURCHASER AND ANY SUBSEQUENT TRANSFEREE OF THIS RULE

144A NOTE (OR A BENEFICIAL INTEREST HEREIN), WILL BE REQUIRED, IN A

TRANSFER CERTIFICATE, TO REPRESENT, WARRANT, ACKNOWLEDGE AND AGREE

THAT IT, AND EACH PERSON FOR WHICH IT IS ACTING, UNDERSTANDS THAT THIS

NOTE (OR BENEFICIAL INTEREST HEREIN) IS BEING OFFERED AND MAY BE

TRANSFERRED ONLY IN TRANSACTIONS NOT INVOLVING ANY PUBLIC OFFERING

WITHIN THE MEANING OF THE SECURITIES ACT AND MUST BE PREPARED TO HOLD

THIS NOTE (OR BENEFICIAL INTEREST HEREIN) UNTIL MATURITY.

EACH PERSON THAT PURCHASES OR OTHERWISE ACQUIRES A BENEFICIAL INTEREST

IN ANY RULE 144A NOTE WILL BE REQUIRED TO CERTIFY IN A TRANSFER

CERTIFICATE DELIVERED TO THE PRINCIPAL PAYING AGENT, THE ISSUER AND THE

CO-ISSUER THAT (I) IT IS NOT, AND IS NOT ACTING ON BEHALF OF, AN ERISA PLAN

(AS DEFINED BELOW) OR OTHER PLAN (AS DEFINED BELOW), OR AN ENTITY WHOSE

UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF AN ERISA PLAN'S OR

OTHER PLAN'S INVESTMENT IN THE ENTITY WITHIN THE MEANING OF THE PLAN

ASSETS REGULATION (AS DEFINED BELOW), OR A GOVERNMENTAL OR OTHER

EMPLOYEE BENEFIT PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR

NON-U.S. LAW THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION

406 OF ERISA (AS DEFINED BELOW) OR SECTION 4975 OF THE CODE (AS DEFINED

BELOW), AND (II) IT WILL NOT SELL OR OTHERWISE TRANSFER ANY SUCH NOTES TO

ANY PERSON WITHOUT OBTAINING THESE SAME REPRESENTATIONS, WARRANTIES

AND AGREEMENTS FROM SUCH PERSON.

AS USED ABOVE:

"ERISA" MEANS THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY

ACT OF 1974, AS AMENDED;

THE "CODE" MEANS THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS

AMENDED;

"ERISA PLAN" MEANS AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF

SECTION 3(3) OF ERISA THAT IS SUBJECT TO TITLE I OF ERISA;

"OTHER PLAN" MEANS A PLAN, AN INDIVIDUAL RETIREMENT ACCOUNT OR

ANOTHER ENTITY SUBJECT TO SECTION 4975 OF THE CODE; AND

"PLAN ASSETS REGULATION" MEANS THE REGULATIONS ISSUED BY THE UNITED

STATES DEPARTMENT OF LABOR AND FOUND AT 29 CFR SECTION 2510.3-101.

IF THE PURCHASER OR ANY SUBSEQUENT TRANSFEREE OF A NOTE (OR A

BENEFICIAL INTEREST THEREIN) IS DETERMINED NOT TO HAVE BEEN BOTH A QIB

AND A QP (AND TO HAVE MET THE OTHER REQUIREMENTS SET FORTH HEREIN) AT

THE TIME IT ACQUIRED SUCH NOTE (OR BENEFICIAL INTEREST THEREIN), THE

ISSUER MAY COMPEL SUCH PERSON TO SELL SUCH NOTE (OR BENEFICIAL INTEREST

THEREIN) WITHIN 30 DAYS AFTER NOTICE OF THE SALE REQUIREMENT IS GIVEN TO A

PERSON THAT IS BOTH A QIB AND A QP (AND MEETS THE OTHER REQUIREMENTS SET

FORTH HEREIN) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A. IF

SUCH PERSON FAILS TO EFFECT THE SALE WITHIN SUCH 30-DAY PERIOD, THE ISSUER

MAY CAUSE SUCH PERSON'S NOTE (OR BENEFICIAL INTEREST THEREIN) TO BE

TRANSFERRED IN A COMMERCIALLY REASONABLE SALE (CONDUCTED IN

ACCORDANCE WITH SECTIONS 9-610, 9-611 AND 9-627 OF THE UNIFORM COMMERCIAL

CODE AS APPLIED TO SECURITIES THAT ARE SOLD ON A RECOGNISED MARKET) TO A

TRANSFEREE THAT CERTIFIES TO THE ISSUER AND THE TRUSTEE THAT IT IS BOTH A

QIB AND A QP (AND MEETS THE OTHER REQUIREMENTS SET FORTH HEREIN) AND IS

AWARE THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,

TOGETHER WITH THE OTHER ACKNOWLEDGEMENTS, REPRESENTATIONS AND

AGREEMENTS TO BE MADE BY A TRANSFEREE OF A NOTE OR BENEFICIAL INTEREST

THEREIN, PROVIDED, HOWEVER, THAT THE ISSUER MAY WAIVE THE FOREGOING

CERTIFICATION REQUIREMENT IF THEY HAVE BEEN ADVISED BY ISSUER'S COUNSEL

THAT SUCH SALE WOULD NOT REQUIRE THE ISSUER TO REGISTER AS AN

INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY ACT OR REQUIRE

REGISTRATION UNDER THE SECURITIES ACT.

THIS NOTE AND RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED

FROM TIME TO TIME BY THE ISSUER, WITHOUT THE CONSENT OF BUT UPON NOTICE

TO THE DEALERS AND TO THE HOLDERS OF NOTES SENT TO THEIR REGISTERED

ADDRESSES, TO (1) MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES

AND OTHER TRANSFERS OF THIS NOTE AND/OR BENEFICIAL INTERESTS THEREIN TO

REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE

INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO RESALES OR OTHER

TRANSFERS OF RESTRICTED SECURITIES SUCH AS THIS NOTE GENERALLY OR (2)

ENABLE THE ISSUER TO RELY UPON ANY EXCLUSION FROM THE DEFINITION OF

INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY ACT THAT MAY

BECOME AVAILABLE, PROVIDED, IN EACH CASE, THAT NO SUCH AMENDMENT OR

SUPPLEMENT SHALL HAVE A MATERIAL ADVERSE EFFECT UPON HOLDERS OR

OWNERS OF BENEFICIAL INTERESTS IN THE NOTES OR ON THE ABILITY OF THE

ISSUER TO RELY ON SECTION 3(c)(7) OF THE INVESTMENT COMPANY ACT. THE

HOLDER HEREOF, BY PURCHASING OR ACCEPTING THIS NOTE, AGREES, AND EACH

BENEFICIAL OWNER, BY PURCHASING OR OTHERWISE ACQUIRING A BENEFICIAL

INTEREST IN THIS NOTE, SHALL AGREE, TO ANY SUCH AMENDMENT OR SUPPLEMENT

(EACH OF WHICH SHALL BE CONCLUSIVE AND BINDING ON THE HOLDER HEREOF

AND THE OWNERS OF BENEFICIAL INTERESTS HEREIN AND ALL FUTURE HOLDERS OF

THIS NOTE AND OWNERS OF BENEFICIAL INTERESTS HEREIN AND ANY NOTES



Pages:     | 1 |   ...   | 27 | 28 || 30 | 31 |   ...   | 32 |


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