ADAGIO II CLO PLC (a public company with limited liability incorporated under the laws of Ireland) 158,250,000 Class A-1 Senior Floating Rate Notes due 2021 70,000,000 Class A-2A Senior Floating Rate Notes due 2021 8,000,000 Class A-2B Senior Floating Rate Notes due 2021 35,875,000 Class B Senior Floating Rate Notes due 2021 14,590,000 Class C-1 Senior Subordinated Deferrable Floating Rate Notes due 2021 8,160,000 Class C-2 Senior Subordinated Deferrable Fixed Rate Notes due 2021 3,925,000 Class D-1 Senior Subordinated Deferrable Floating Rate Notes due 2021 9,200,000 Class D-2 Senior Subordinated Deferrable Fixed Rate Notes due 2021 10,500,000 Class E Senior Subordinated Deferrable Floating Rate Notes due 2021 36,300,000 Class F Subordinated Notes due 2021 12,240,000 Class P Combination Notes due 2021 15,000,000 Class Q Combination Notes due 2021 5,000,000 Class R Combination Notes due 2021 5,000,000 Class S Combination Notes due 2021 9,550,000 Class T Combination Notes due 2021 12,400,000 Class U Combination Notes due 2021 Each Combination Note (as defined below) consists of two or more "Components", such Components comprising, in the case of: (i) the Class P Combination Notes, one of Class C-2 Notes and one of Class F Subordinated Notes, (ii) the Class Q Combination Notes, one of Class D-2 Notes and one of Class F Subordinated Notes, (iii) the Class R Combination Notes, one of Class A-1 Notes and one of Class F Subordinated Notes, (iv) the Class S Combination Notes, one of Class B Notes and one of Class E Notes, (v) the Class T Combination Notes, one corresponding to Euro denominated French Obligation Assimilable du Trésor treasury strips ("OAT Strips") and one of Class F Subordinated Notes, and (vi) the Class U Combination Notes, one corresponding to OAT Strips and one of Class F Subordinated Notes. The initial principal amount of each Component (excluding those corresponding to the OAT Strips) is included in (and not additional to) the initial principal amounts of the Class A-1 Notes, the Class B Notes, the Class C-2 Notes, the Class D-2 Notes, the Class E Notes and the Class F Subordinated Notes. Secured primarily by a Portfolio of Secured Senior Loans, Unsecured Senior Loans, Mezzanine Obligations, High Yield Bonds and Synthetic Securities (each as defined herein) managed by AXA Investment Managers Paris S.A. The Notes (as defined below) are being offered and sold hereby by Merrill Lynch International (the "Initial Purchaser") outside the United States to non-u.s. Persons (as defined below) in offshore transactions in reliance on Regulation S under the Securities Act (as defined below). In addition to the offering of the Notes outside the United States, the Initial Purchaser is concurrently offering the Notes in the United States to qualified institutional buyers (as defined below) in reliance on Rule 144A (as defined below) under the Securities Act in transactions exempt from registration under the Securities Act. See "Plan of Distribution". See "Risk Factors" beginning on page 52 for a discussion of certain factors to be considered in connection with an investment in the Notes. There is no established trading market for the Notes. Application has been made to the Irish Financial Services Regulatory Authority, as competent authority under Directive 2003/71/EC, for this prospectus (the "Prospectus") to be approved. Application has been made to the Irish Stock Exchange for the Notes to be admitted to the Official List and traded on its regulated market. This Prospectus constitutes a "prospectus" for the purposes of Directive 2003/71/EC. There can be no assurance that such application will be approved. It is a condition of the issue and sale of the Notes that the Notes be issued with at least the following ratings from Standard & Poor's Ratings Group, a division of The McGraw-Hill Companies, Inc. ("S&P") and from Moody's Investors Service, Inc ("Moody's" and, together with S&P, the "Rating Agencies" and each, a "Rating Agency"), respectively: the Class A-1 Notes: AAA and Aaa, the Class A-2A Notes: AAA and Aaa, the Class A-2B Notes: AAA and Aa1, the Class B Notes: AA and Aa2, the Class C-1 Notes: A and A2, the Class C-2 Notes: A and A2, the Class D-1 Notes: BBB and Baa2, the Class D-2 Notes: BBB and Baa2, the Class E Notes: BB and Ba2, the Class P Combination Notes: A by S&P only, the Class Q Combination Notes: BBB by S&P only, the Class R Combination Notes: AAA by S&P only, the Class S Combination Notes: AA by S&P only and the Class - i -
T Combination Notes: AAA by S&P only. The ratings assigned by S&P to the Class A Notes and the Class B Notes (each as defined below) address the timely payment of interest and the ultimate payment of principal. The ratings assigned by S&P to the Class C Notes, the Class D Notes and the Class E Notes address the ultimate payment of principal and interest. The ratings assigned by Moody's to the Class A Notes and the Class B Notes address the expected loss posed to the investors by the legal final maturity date. In Moody's opinion, the structure allows for the timely payment of interest and the ultimate payment of principal with respect to the Class A Notes and the Class B Notes by the legal final maturity date. The ratings assigned by Moody's to the Class C Notes, the Class D Notes and the Class E Notes address the expected loss posed to the investors by the legal final maturity date. In Moody's opinion, the structure allows for the ultimate payment of principal and interest with respect to the Class C Notes, the Class D Notes and the Class E Notes by the legal final maturity date. The ratings assigned by S&P to the Class P Combination Notes, the Class Q Combination Notes, the Class R Combination Notes, the Class S Combination Notes and the Class T Combination Notes apply only to the ultimate payment of principal. With respect to the Class P Combination Notes, the Class Q Combination Notes, the Class R Combination Notes, the Class S Combination Notes and the Class T Combination Notes, the ratings assigned by S&P do not address the likelihood of such Class being redeemed pursuant to Condition 7(b) (Optional Redemption), and in such event the ratings assigned by S&P would only address the principal amount of the relevant rated Component. The Class F Subordinated Notes (as defined below) and the Class U Combination Notes being offered hereby will not be rated. A security rating is not a recommendation to buy, sell or hold securities and may be subject to revision, suspension or withdrawal at any time by the applicable rating agency. Moody's ratings address only the credit risks associated with the transaction. Other non-credit risks have not been addressed, but may have a significant effect on yield to investors. CERTAIN PLEDGED ASSETS OF THE ISSUER (AS DEFINED BELOW) ARE THE SOLE SOURCE OF PAYMENTS ON THE NOTES. THE NOTES ARE NOT OBLIGATIONS OF, AND ARE NOT INSURED OR GUARANTEED BY, ANY OF THE CLASS A NOTEHOLDERS, THE CLASS B NOTEHOLDERS, THE CLASS C NOTEHOLDERS, THE CLASS D NOTEHOLDERS, THE CLASS E NOTEHOLDERS, THE CLASS F SUBORDINATED NOTEHOLDERS, THE COMBINATION NOTEHOLDERS, THE PORTFOLIO MANAGER, THE COLLATERAL ADMINISTRATOR, THE INITIAL PURCHASER OR THE TRUSTEE (EACH SUCH PARTY AS DEFINED HEREIN) OR ANY OF THEIR RESPECTIVE AFFILIATES. THE NOTES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, SUBJECT TO CERTAIN EXCEPTIONS, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT ("REGULATION S"). THE NOTES WILL BE OFFERED AND SOLD ONLY: (A) OUTSIDE THE UNITED STATES TO NON-U.S. PERSONS IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT ("REGULATION S NOTES") AND (B) WITHIN THE UNITED STATES TO PERSONS WHO ARE QUALIFIED INSTITUTIONAL BUYERS (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT WHO ARE ALSO QUALIFIED PURCHASERS ("QUALIFIED PURCHASERS") FOR THE PURPOSES OF SECTION 3(C)(7) OF THE INVESTMENT COMPANY ACT 1940 (AS AMENDED, THE "INVESTMENT COMPANY ACT"). THE ISSUER WILL NOT BE REGISTERED UNDER THE INVESTMENT COMPANY ACT. INTERESTS IN THE NOTES WILL BE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER. SEE "PLAN OF DISTRIBUTION" AND "TRANSFER RESTRICTIONS". EACH PURCHASER OF THE NOTES OFFERED HEREBY IN MAKING ITS PURCHASE WILL BE DEEMED TO HAVE MADE CERTAIN ACKNOWLEDGEMENTS, REPRESENTATIONS AND AGREEMENTS AS SET OUT UNDER "TRANSFER RESTRICTIONS". The Notes are offered by the Initial Purchaser subject to its right to reject any order in whole or in part. It is expected that the Notes will be ready for delivery in book-entry form on or about 14 December 2005 (the "Closing Date"), only through the facilities of Euroclear Bank S.A./N.V., as operator of the Euroclear System ("Euroclear") and Clearstream Banking, societe anonyme ("Clearstream, Luxembourg"). The Initial Purchaser expects to underwrite the Notes and may do so in individually negotiated transactions at prices other than the prices set out herein. The Notes offered hereby will be issued in minimum denominations of 250,000. The date of this Prospectus is 16 December 2005 Merrill Lynch International - ii -
Adagio II CLO PLC (the "Issuer") will issue 158,250,000 Class A-1 Senior Floating Rate Notes due 2021 (the "Class A-1 Notes"), 70,000,000 Class A-2A Senior Floating Rate Notes due 2021 (the "Class A-2A Notes"), 8,000,000 Class A-2B Senior Floating Rate Notes due 2021 (the "Class A-2B Notes" and together with the Class A-2A Notes together the "Class A-2 Notes" and the Class A-1 Notes and the Class A-2 Notes, the "Class A Notes"), 35,875,000 Class B Senior Floating Rate Notes due 2021 (the "Class B Notes"), 14,590,000 Class C-1 Senior Subordinated Deferrable Floating Rate Notes due 2021 (the "Class C-1 Notes"), 8,160,000 Class C-2 Senior Subordinated Deferrable Fixed Rate Notes due 2021 (the "Class C-2 Notes" and together with the Class C-1 Notes, the "Class C Notes"), 3,925,000 Class D-1 Senior Subordinated Deferrable Floating Rate Notes due 2021 (the "Class D-1 Notes"), 9,200,000 Class D-2 Senior Subordinated Deferrable Fixed Rate Notes due 2021 (the "Class D-2 Notes and together with the Class D-1 Notes, the "Class D Notes"), 10,500,000 Class E Senior Subordinated Deferrable Floating Rate Notes due 2021 (the "Class E Notes" and, together with the Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes, the "Rated Notes" which expression shall include, where applicable, the Class P Combination Notes, the Class Q Combination Notes, the Class R Combination Notes, the Class S Combination Notes and the Class T Combination Notes (each as defined below)), 36,300,000 Class F Subordinated Notes due 2021 (the "Class F Subordinated Notes"), 12,240,000 Class P Combination Notes due 2021 (the "Class P Combination Notes"), 15,000,000 Class Q Combination Notes due 2021 (the "Class Q Combination Notes"), 5,000,000 Class R Combination Notes due 2021 (the "Class R Combination Notes"), 5,000,000 Class S Combination Notes due 2021 (the "Class S Combination Notes"), 9,550,000 Class T Combination Notes due 2021 (the "Class T Combination Notes" and 12,400,000 Class U Combination Notes due 2021 (the "Class U Combination Notes" and together with the Class P Combination Notes, the Class Q Combination Notes, the Class R Combination Notes, the Class S Combination Notes and the Class T Combination Notes, the "Combination Notes" and, the Combination Notes together with the Rated Notes and the Class F Subordinated Notes, the "Notes"). The Notes will be issued pursuant to a trust deed (the "Trust Deed") to be dated on or about 14 December 2005 between the Issuer and J.P. Morgan Corporate Trustee Services Limited as security trustee and note trustee (the "Trustee"), as amended and supplemented. The net proceeds of the offering of the Notes will be applied by the Issuer to purchase a portfolio (the "Portfolio") of Secured Senior Loans, Unsecured Senior Loans, Mezzanine Obligations, High Yield Bonds and Synthetic Securities, which Portfolio will be charged and assigned under the Trust Deed, by the Issuer to the Trustee on behalf of the holders of the Class A Notes (the "Class A Noteholders"), the holders of the Class B Notes (the "Class B Noteholders"), the holders of the Class C Notes (the "Class C Noteholders"), the holders of the Class D Notes (the "Class D Noteholders"), the holders of the Class E Notes (the "Class E Noteholders"), the holders of the Class F Subordinated Notes (the "Class F Subordinated Noteholders" and the holders of the Combination Notes (the "Combination Noteholders" and, together with the Class A Noteholders, the Class B Noteholders, the Class C Noteholders, the Class D Noteholders, the Class E Noteholders and the Class F Subordinated Noteholders, the Noteholders ) and certain other secured parties. AXA Investment - iii -
Managers Paris S.A. will act as Portfolio Manager (as defined in "Summary" below) for the Portfolio. The Rated Notes (save for the Class C-2 Notes and the Class D-2 Notes) will bear interest from 14 December 2005 at a floating rate, and with a margin of 0.25 per cent. per annum in respect of the Class A-1 Notes, 0.235 per cent. per annum in the case of the Class A-2A Notes, 0.37 per cent. per annum in the case of the Class A-2B Notes, 0.38 per cent. per annum in the case of the Class B Notes, 0.65 per cent. per annum in the case of the Class C-1 Notes, 1.60 per cent. per annum in respect of the Class D-1 Notes and 4.70 per cent. per annum in respect of the Class E Notes above the euro-zone interbank fixed rates for 6 month euro deposits ("6-month Euribor") except for the first interest period where the applicable margin above the euro-zone interbank fixed rates for 7 month euro deposits will be used. The Class C-2 Notes and the Class D-2 Notes will bear interest from 14 December 2005 at a fixed rate of 4.193 per cent. per annum in respect of the Class C-2 Notes and 5.152 per cent. per annum in respect of the Class D-2 Notes. Interest on the Class F Subordinated Notes will be paid on an available funds basis. Interest on the Class A Notes, the Class B Notes, the Class C Notes, the Class D Notes, the Class E Notes and the Class F Subordinated Notes will accrue from the Closing Date and be payable semi-annually in arrears on 15 January and 15 July of each year, commencing on 15 July 2006 (subject to adjustment for non-business Days (as defined in "Conditions of the Notes" below)) in accordance with the terms and conditions (the "Conditions") of the Notes, at maturity and upon any redemption of the Notes (each, a "Payment Date"). On each Payment Date on which payments, whether from Principal Proceeds or Interest Proceeds (each as defined in Conditions of the Notes ) are made or upon redemption, a portion of such payment shall be allocated to the Combination Notes in the proportion that the principal amount of each Component of such Combination Note bears to the principal amount of the related Class of Notes as a whole (including the related Component). No amount of principal in respect of the Class B Notes shall become due and payable until redemption and payment in full of the Class A Notes, no amount of principal (for the avoidance of doubt, excluding Deferred Interest) in respect of the Class C Notes shall become due and payable until redemption and payment in full of the Class A Notes and the Class B Notes, no amount of principal (for the avoidance of doubt, excluding Deferred Interest) in respect of the Class D Notes shall become due and payable until redemption and payment in full of the Class A Notes, the Class B Notes and the Class C Notes, no amount of principal (for the avoidance of doubt, excluding Deferred Interest) in respect of the Class E Notes shall become due and payable until redemption and payment in full of the Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes and no amount of principal in respect of the Class F Subordinated Notes shall become due and payable until redemption and payment in full of each of the other Classes of Notes. The Notes will be limited recourse debt obligations of the Issuer. Subject as provided herein, payments of interest and principal on the Class A-1 Notes will rank pari passu and pro rata with payments of interest and principal on the Class A-2 Notes but the Class A-2A Notes shall rank in priority to the Class A-2B Notes as expressly provided for herein. Payments of interest on the Class A Notes will rank senior in right of payment to payments of principal and - iv -
interest in respect of each other Class of Notes and payments of principal on the Class A Notes will rank senior in right of payment to payments of principal in respect of each other Class of Notes subject to Condition 3(c)(ii)(U)(Application of Interest Proceeds). Payments of interest on the Class B Notes will be subordinated in right of payment to payments of interest in respect of the Class A Notes and payments of principal on the Class B Notes will be subordinated in right of payment to payments of interest and principal in respect of the Class A Notes. Payments of interest on the Class B Notes will rank senior in right of payment to payments of interest and principal on the Class C Notes, the Class D Notes, the Class E Notes and the Class F Subordinated Notes. Payments of principal on the Class B Notes will rank senior in right of payment to payments of principal on the Class C Notes, the Class D Notes, the Class E Notes and the Class F Subordinated Notes subject to Condition 3(c)(ii)(U)(Application of Interest Proceeds). Payments of interest and principal on the Class C-1 Notes will rank pari passu with payments of interest and principal on the Class C-2 Notes. Payments of interest on the Class C Notes will be subordinated in right of payment to payments of interest in respect of the Class A Notes and the Class B Notes. Payments of principal on the Class C Notes will be subordinated in right of payment to payments of principal and interest in respect of the Class A Notes and the Class B Notes (for the avoidance of doubt, excluding Deferred Interest). Payments of interest on the Class C Notes will rank senior in right of payment to payments of interest and principal on the Class D Notes, the Class E Notes and the Class F Subordinated Notes. Payments of principal on the Class C Notes will rank senior in right of payment to payments of principal on the Class D Notes, the Class E Notes and the Class F Subordinated Notes subject to Condition 3(c)(ii)(U)(Application of Interest Proceeds). Payments of interest and principal on the Class D-1 Notes will rank pari passu with payments of interest and principal on the Class D-2 Notes. Payments of interest on the Class D Notes will be subordinated in right of payment to payments of interest in respect of the Class A Notes, the Class B Notes and the Class C Notes. Payments of principal on the Class D Notes will be subordinated in right of payment to payments of principal and interest on the Class A Notes, the Class B Notes and the Class C Notes (for the avoidance of doubt, excluding Deferred Interest). Payments of interest on the Class D Notes will rank senior in right of payment to payments of interest and principal on the Class E Notes and the Class F Subordinated Notes. Payments of principal on the Class D Notes will rank senior in right of payment to payments of principal on the Class E Notes and the Class F Subordinated Notes subject to Condition 3(c)(ii)(U)(Application of Interest Proceeds). Payment of interest on the Class E Notes will be subordinated in right of payment to payments of interest in respect of the Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes. Payments of principal on the Class E Notes will be subordinated in right of payment to payments of principal and interest on the Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes (for the avoidance of doubt, excluding Deferred Interest). Payments of interest on the Class E Notes will rank senior in right of payment to payments of interest and principal on the Class F Subordinated Notes. Payments of principal - v -
on the Class E Notes will rank senior in right of payment to payments of principal on the Class F Subordinated Notes. Interest Proceeds shall be paid on the Class F Subordinated Notes on each Payment Date in accordance with the priority of payments on an available funds basis. All payments on the Class F Subordinated Notes will be subordinated in right of payment to such payments in respect of the Rated Notes. Each Component of the Combination Notes shall rank in accordance with the Class of Notes represented thereby. The Notes shall be redeemed by the Issuer, in whole but not in part, on (a) any Payment Date falling on or after expiry of the Non-Call Period, at the request in writing of the holders of at least 66 2 /3 per cent. of the Principal Amount Outstanding (as defined herein) of the Class F Subordinated Notes, (b) any Payment Date falling after the Non-Call Period but during the Reinvestment Period at the discretion of the Portfolio Manager, (c) any Payment Date falling after the occurrence of a Collateral Tax Event (as defined herein) at the request in writing of the holders of at least 66 2 /3 per cent. of the Principal Amount Outstanding of the Class F Subordinated Notes, or (d) any Payment Date falling after the occurrence of a Note Tax Event (as defined herein) at the request in writing of the holders of at least 66 2 /3 per cent. of the Principal Amount Outstanding of each of the Controlling Class and of the Class F Subordinated Notes at such time, in each case, subject to the satisfaction of certain conditions set out herein. Certain Classes of the Notes will be subject to mandatory redemption in whole or in part on each Payment Date to the extent any Coverage Test (as defined herein) is not satisfied or upon the occurrence of an Effective Date Rating Event (as defined herein), as further described herein. See Condition 7 (Redemption and Purchase). Save for the information contained in the section of this Prospectus headed "The Portfolio Manager", the Issuer accepts responsibility for the information contained in this Prospectus and to the best of the knowledge and belief of the Issuer (which has taken all reasonable care to ensure that such is the case), such information is in accordance with the facts and does not omit anything likely to affect the import of such information. The delivery of this Prospectus at any time does not imply that the information herein is correct at any time subsequent to the date of this Prospectus. The Portfolio Manager accepts responsibility for the accuracy and completeness of the information contained in the section of this Prospectus headed "The Portfolio Manager". To the best of the knowledge and belief of the Portfolio Manager (which has taken all reasonable care to ensure that such is the case), such information is in accordance with the facts and does not omit any material fact likely to affect the import of such information. The Portfolio Manager accepts no responsibility for the accuracy and completeness of any other information contained in this Prospectus. None of the Issuer (with respect to the section of this Prospectus headed "The Portfolio Manager" only), Merrill Lynch International, in its capacity as Initial Purchaser in respect of the Notes, the Trustee, the Collateral Administrator or (save in respect of the section headed "The Portfolio Manager") the Portfolio Manager has separately verified the information contained in this Prospectus and, accordingly, none of the Issuer (with respect to the section of this Prospectus headed "The Portfolio Manager" only), Initial Purchaser, the Trustee, the - vi -
Collateral Administrator or (save in respect of the section headed "The Portfolio Manager") the Portfolio Manager makes any representation, recommendation or warranty, express or implied, regarding the accuracy, adequacy, reasonableness or completeness of the information contained in this Prospectus or in any further notice or other document which may at any time be supplied in connection with the Notes or their distribution or accepts any responsibility or liability therefor. None of the Initial Purchaser, the Trustee, the Collateral Administrator or the Portfolio Manager undertakes to review the financial condition or affairs of the Issuer during the life of the arrangements contemplated by this Prospectus nor to advise any investor or potential investor in the Notes of any information coming to the attention of the Initial Purchaser, the Trustee, the Collateral Administrator or the Portfolio Manager which is not included in this Prospectus. This Prospectus does not constitute an offer of, or an invitation by or on behalf of, the Issuer, the Initial Purchaser, the Portfolio Manager, or any Affiliate (as defined below) of the Initial Purchaser or the Portfolio Manager to subscribe for or purchase, any of the Notes in any jurisdiction to any person to whom it is unlawful to make such an offer or invitation in such jurisdiction. The distribution of this Prospectus and the offering of the Notes in certain jurisdictions may be restricted by law. In particular, the communication constituted by this Prospectus is directed only at persons who (i) are outside the United Kingdom or (ii) have professional experience in matters relating to investments or (iii) are persons falling within Article 49(2)(a) to (d) ("high net worth companies, unincorporated association etc") of The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (all such persons together being referred to as "relevant persons"). This communication must not be acted on or relied on by persons who are not relevant persons. Any investment or investment activity to which this communication relates is available only to relevant persons and will be engaged in only with relevant persons. For a description of certain further restrictions on offers and sales of Notes and the distribution and issue of this Prospectus and other documents, see "Transfer Restrictions" below. In connection with the issue and sale of the Notes, no person is authorised to give any information or to make any representation not contained in this Prospectus and, if given or made, such information or representation must not be relied upon as having been authorised by or on behalf of the Issuer. The delivery of this Prospectus at any time does not imply that the information contained in it is correct as at any time subsequent to its date. Any investment in Notes does not have the status of a bank deposit and is not within the scope of the deposit protection scheme operated by the Irish Financial Services Regulatory Authority ( IFSRA ). The Issuer is not and will not be regulated by IFSRA as a result of issuing the Notes. Copies of this Prospectus have been filed with and approved by IFSRA as required by the Prospectus (Directive 2003/71/EC) Regulations 2005 (the Prospectus Regulations ) (which implement Directive 2003/71/EC (the Prospectus Directive ) in Ireland). Upon approval of this Prospectus by IFSRA, this Prospectus will be filed with the Irish Companies Registration Office in accordance with Regulation 38(1)(b) of the Prospectus Regulations. - vii -
IN CONNECTION WITH THIS ISSUE, MERRILL LYNCH INTERNATIONAL OR ANY PERSON ACTING FOR IT MAY OVER-ALLOT OR EFFECT TRANSACTIONS WITH A VIEW TO SUPPORTING THE MARKET PRICE OF THE NOTES AT A LEVEL HIGHER THAN THAT WHICH MIGHT OTHERWISE PREVAIL FOR A LIMITED PERIOD AFTER THE CLOSING DATE BUT NONE OF THESE ACTIVITIES WILL TAKE PLACE IN OR FROM IRELAND. HOWEVER, THERE IS NO ASSURANCE THAT MERRILL LYNCH INTERNATIONAL OR ANY PERSON ACTING FOR IT WILL UNDERTAKE STABILISING ACTION. ANY STABILISING ACTION MAY BEGIN ON OR AFTER THE DATE ON WHICH ADEQUATE DISCLOSURE OF THE TERMS OF THE OFFER OF THE NOTES IS MADE, AND, IF BEGUN, MAY BE ENDED AT ANY TIME, BUT IT MUST END NO LATER THAN THE EARLIER OF 30 DAYS AFTER THE ISSUE OF THE NOTES AND 60 DAYS AFTER THE DATE OF ALLOTMENT OF THE NOTES. Unless otherwise specified or the context requires, references to "euro" and " " are to the currency introduced at the start of the third stage of European economic and monetary union pursuant to the Treaty establishing the European Community, as amended. See "Glossary of Defined Terms" for details of the pages on which capitalised terms used herein are defined. IMPORTANT NOTICE IMPORTANT: You must read the following disclaimer before continuing. The following disclaimer applies to the attached preliminary offering circular accessed from this page or otherwise received as a result of such access and you are therefore advised to read this disclaimer page carefully before reading, accessing or making any other use of the attached preliminary offering circular. In accessing the attached preliminary offering circular, you agree to be bound by the following terms and conditions, including any modifications to them from time to time, each time you receive any information from us as a result of such access. Confirmation of Your Representation: You have been sent the attached preliminary offering circular on the basis that you have confirmed to Merrill Lynch International being the sender of the attached that (i) the address to which it has been delivered is not located in the United States of America, its territories and possessions, any State of the United States and the District of Colombia; and possessions include Puerto Rico, the US Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands and (ii) that you consent to delivery by electronic transmission. This Prospectus has been sent to you in an electronic form. You are reminded that documents transmitted via this medium may be altered or changed during the process of transmission and consequently none of Merrill Lynch International (or any person who controls it or any director, officer, employee or agent of it, or affiliate of any such person) accepts any liability or responsibility whatsoever in respect any difference between the preliminary offering circular distributed to you in electronic format and the hard copy version available to you on request from Merrill Lynch International. You are reminded that the attached preliminary offering circular has been delivered to you on the basis that you are a person into whose possession this preliminary offering circular may be - viii -
lawfully delivered in accordance with the laws of jurisdiction in which you are located and you may not nor are you authorised to deliver this preliminary offering circular to any other person. Restrictions: Nothing on this electronic transmission constitutes an offer of securities for sale in the United States or any other jurisdiction. Any securities to be issued will not be registered under the Securities Act and may not be offered or sold in the United States or to or for the account or benefit of U.S. persons (as such terms are defined in Regulation S under the Securities Act) unless registered under the Securities Act or pursuant to an exemption from such registration. NOTICE TO NEW HAMPSHIRE RESIDENTS NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A LICENSE HAS BEEN FILED UNDER CHAPTER 421-B OF THE NEW HAMPSHIRE REVISED STATUTES (THE "RSA") WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW HAMPSHIRE CONSTITUTES A FINDING BY THE SECRETARY OF STATE OF NEW HAMPSHIRE THAT ANY DOCUMENT FILED UNDER RSA 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH FACT NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY OR A TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON, SECURITY, OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE MADE, TO ANY PROSPECTIVE PURCHASER, CUSTOMER, OR CLIENT ANY REPRESENTATION INCONSISTENT WITH THE PROVISIONS OF THIS PARAGRAPH. INFORMATION AS TO PLACEMENT WITHIN THE UNITED STATES The Issuer has not been registered under the Investment Company Act (as defined below). Each purchaser of an interest in the Notes (other than a non-u.s. Person) will be deemed to have represented and agreed that it is a qualified purchaser within the meaning of Section 3(c)(7) of the Investment Company Act (a "QP") and will also be deemed to have made the representations set out in "Transfer Restrictions" herein. The purchaser of any Note, by such purchase, agrees that such Note is being acquired for its own account and not with a view to distribution and may be resold, pledged or otherwise transferred only (1) to the Issuer (upon redemption thereof or otherwise), (2) to a person the purchaser reasonably believes is a "qualified institutional buyer" (as defined in Rule 144A) (a "QIB"), which is also a QP, in a transaction meeting the requirements of Rule 144A, or (3) outside the United States to a non- U.S. Person in an offshore transaction in reliance on Regulation S, in each case, in compliance with the Trust Deed and all applicable securities laws of any state of the United States or any other jurisdiction. See "Transfer Restrictions". - ix -
In making an investment decision, investors must rely on their own examination of the Issuer and the terms of the Notes and the offering thereof described herein, including the merits and risks involved. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH, OR APPROVED BY, ANY UNITED STATES FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE. PROSPECTIVE INVESTORS SHOULD NOT CONSTRUE THE CONTENTS OF THIS PROSPECTUS AS LEGAL, INVESTMENT, ACCOUNTING, TAX OR OTHER ADVICE. EACH PROSPECTIVE INVESTOR MUST RELY UPON HIS OR HER OWN REPRESENTATIVES AND PROFESSIONAL ADVISERS, INCLUDING HIS OR HER OWN LEGAL COUNSEL AND ACCOUNTANTS, AS TO LEGAL, ECONOMIC, TAX AND RELATED ASPECTS OF THE INVESTMENT IN THE NOTES. AN INVESTMENT IN THE NOTES MAY NOT BE SUITABLE FOR ALL RECIPIENTS OF THIS PROSPECTUS. IN MAKING AN INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THE NOTES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE IN THE UNITED STATES. This Prospectus has been prepared by the Issuer solely for use in connection with the offering of the Notes described herein (the "Offering"). The Issuer and the Initial Purchaser reserve the right to reject any offer to purchase Notes in whole or in part for any reason, or to sell less than the stated initial principal amount of any Class of Notes offered hereby. This Prospectus is personal to each offeree to whom it has been delivered by the Issuer, the Initial Purchaser or any Affiliate thereof and does not constitute an offer to any other person or to the public generally to subscribe for or otherwise acquire the Notes. Distribution of this Prospectus to any persons other than the offeree and those persons, if any, retained to advise such offeree with respect thereto is unauthorised and any disclosure of any of its contents, without the prior written consent of the Issuer, is prohibited. Each prospective purchaser in the United States, by accepting delivery of this Prospectus, agrees to the foregoing and to make no photocopies of this Prospectus or any documents related hereto. AVAILABLE INFORMATION To permit compliance with Rule 144A under the Securities Act in connection with the sale of the Notes, the Issuer will be required pursuant to the Trust Deed to furnish, upon request of a - x -
holder of a Note, to such holder and a prospective purchaser designated by such holder, the information required to be delivered under Rule 144A(d)(4) under the Securities Act if at the time of the request the Issuer is not a reporting company under Section 13 or Section 15(d) of the United States Securities Exchange Act of 1934, as amended (the "Exchange Act"), or exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act. All information made available by the Issuer pursuant to the terms of this paragraph may also be obtained during usual business hours free of charge at the office of the Paying Agent in Luxembourg. ENFORCEABILITY OF JUDGMENTS The Issuer is a public company incorporated with limited liability under the laws of Ireland. Certain of the Issuer's assets are located outside the United States. None of the officers and directors of the Issuer are residents of the United States. As a result, it may not be possible for investors to effect service of process within the United States upon the Issuer or the officers and directors of the Issuer with respect to matters arising under the federal or state securities laws of the United States, or to enforce against them judgments of courts of the United States predicated upon the civil liability provisions of such securities laws. There is doubt as to the enforceability in the United Kingdom and in Ireland, in original actions or in actions for the enforcement of judgments of US courts, of civil liabilities predicated solely upon such securities laws. AUSTRALIAN SELLING RESTRICTIONS NEITHER THIS PROSPECTUS NOR ANY OTHER PROSPECTUS OR DISCLOSURE DOCUMENT IN RELATION TO THE NOTES HAS BEEN LODGED WITH, OR REGISTERED BY, THE AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ("ASIC"). (i) (ii) NO OFFER OR INVITATION OF AN OFFER OF THE NOTES FOR ISSUE OR SALE HAS BEEN MADE OR WILL BE MADE IN AUSTRALIA (INCLUDING AN OFFER OR INVITATION WHICH IS RECEIVED BY A PERSON IN AUSTRALIA); AND NO DISTRIBUTION OR PUBLICATION OF THIS PROSPECTUS OR ANY OTHER OFFERING MATERIAL OR ADVERTISEMENT RELATING TO THE NOTES IN AUSTRALIA HAS BEEN MADE OR WILL BE MADE, UNLESS (a) THE MINIMUM AGGREGATE CONSIDERATION PAYABLE BY EACH OFFEREE IS AT LEAST A$500,000 (DISREGARDING MONEYS LENT BY THE OFFEROR OR ITS ASSOCIATES) OR THE OFFER OTHERWISE DOES NOT REQUIRE DISCLOSURE TO INVESTORS IN ACCORDANCE WITH PART 6D.2 OF THE CORPORATIONS ACT, AND (b) SUCH ACTION COMPLIES WITH ALL APPLICABLE LAWS AND REGULATIONS. BELGIAN SELLING RESTRICTIONS THE ISSUER REPRESENTS AND AGREES THAT IT HAS NOT OFFERED OR SOLD AND WILL NOT OFFER OR SELL, DIRECTLY OR INDIRECTLY, AT THE TIME OF THE PLACING, ANY OF THE NOTES BY WAY OF A PUBLIC OFFERING IN - xi -
BELGIUM AND/OR THAT THE NOTES WILL BE OFFERED ONLY TO PERSONS FALLING UNDER THE DEFINITION OF A PROFESSIONAL INVESTOR IN ACCORDANCE WITH THE ROYAL DECREE OF 7 JULY 1999. FRENCH SELLING RESTRICTIONS THE OFFERING OF THE NOTES HAS NOT GIVEN RISE TO THE REGISTRATION OF AN INFORMATIVE DOCUMENT WITH THE AUTORITÉ DES MARCHÉS FINANCIERS. POTENTIAL PURCHASERS MAY SUBSCRIBE TO THE NOTES ONLY FOR THEIR OWN ACCOUNT PURSUANT TO THE CONDITIONS SET OUT IN DECREE NO. 98-880 OF 1 OCTOBER 1998. THE DIRECT OR INDIRECT CIRCULATION TO THE PUBLIC OF THE NOTES SO SUBSCRIBED MAY NOT OCCUR WITHOUT MEETING THE CONDITIONS PROVIDED FOR UNDER ARTICLE L 411-1, L 411-2, L 412-2 AND L 612-8 OF THE CODE MONÉTAIRE ET FINANCIER. GERMAN SELLING RESTRICTIONS THE NOTES HAVE NOT BEEN REGISTERED OR AUTHORISED FOR PUBLIC OFFER OR PUBLIC DISTRIBUTION UNDER GERMAN LAW. ACCORDINGLY, THE NOTES MAY NOT BE DISTRIBUTED TO OR WITHIN GERMANY BY WAY OF A PUBLIC OFFER WITHIN THE MEANING OF APPLICABLE GERMAN LAWS, PUBLIC ADVERTISEMENT OR IN ANY SIMILAR MANNER AND THIS PROSPECTUS AND ANY OTHER DOCUMENT RELATING TO THE NOTES, AS WELL AS INFORMATION CONTAINED THEREIN, MAY NOT BE SUPPLIED TO THE PUBLIC IN GERMANY OR USED IN CONNECTION WITH ANY OFFER FOR SUBSCRIPTION OF THE NOTES TO THE PUBLIC IN GERMANY OR ANY OTHER MEANS OF PUBLIC MARKETING. THIS PROSPECTUS AND OTHER OFFERING MATERIALS RELATING TO THE OFFER OF THE NOTES ARE STRICTLY CONFIDENTIAL AND MAY NOT BE DISTRIBUTED TO ANY PERSON OR ENTITY OTHER THAN THE RECIPIENT HEREOF TO WHOM THIS PROSPECTUS IS PERSONALLY ADDRESSED. IRISH SELLING RESTRICTIONS THE INITIAL PURCHASER HAS REPRESENTED AND AGREED WITH THE ISSUER THAT, TO THE EXTENT APPLICABLE, IT HAS COMPLIED WITH AND WILL COMPLY WITH ALL APPLICABLE PROVISIONS OF THE IRISH COMPANIES ACTS 1963-2005 (AS AMENDED) AND THE INVESTMENT INTERMEDIARIES ACT, 1995 (AS AMENDED) INCLUDING, WITHOUT LIMITATION, SECTIONS 9 AND 50 AND WILL CONDUCT ITSELF IN ACCORDANCE WITH ANY CODES OF CONDUCT DRAWN UP PURSUANT TO SECTION 37 THEREOF OR, IN THE CASE OF A CREDIT INSTITUTION EXERCISING ITS RIGHTS UNDER THE BANKING CONSOLIDATION DIRECTIVE (2000/12/EC OF 20TH MARCH 2000) IN CONFORMITY WITH THE CODES OF CONDUCT OR PRACTICE MADE UNDER SECTION 117(1) OF THE CENTRAL BANK ACT 1989, OF IRELAND, AS AMENDED, WITH RESPECT TO ANYTHING DONE BY IT IN RELATION TO THE NOTES. - xii -
JAPANESE SELLING RESTRICTIONS THE OFFERING OR SALE OF THE NOTES HAVE NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND EXCHANGE LAW OF JAPAN (LAW NO. 25 OF 1948, AS AMENDED). NEITHER THE NOTES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, RESOLD OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO OR FOR THE ACCOUNT OF ANY RESIDENT OF JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN, INCLUDING ANY CORPORATION OR OTHER ENTITY ORGANISED UNDER THE LAWS OF JAPAN), OR TO OTHERS FOR RE-OFFERING OR SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO OR FOR THE ACCOUNT OF ANY RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW AND ANY OTHER APPLICABLE LAW, REGULATIONS AND MINISTERIAL GUIDELINES OF JAPAN. NEW ZEALAND SELLING RESTRICTIONS THE NOTES MAY NOT BE OFFERED FOR SUBSCRIPTION, AND NO ADVERTISEMENT IN RELATION TO ANY NOTES MAY BE DISTRIBUTED TO THE PUBLIC IN NEW ZEALAND OR ACQUIRED WITH A VIEW TO SELLING THEM, NOR MAY ANY NOTES BE SOLD OR OFFERED FOR SALE TO THE PUBLIC IN NEW ZEALAND WITHIN SIX MONTHS AFTER THE ISSUE OF SUCH NOTES, ALL SUCH CONDUCT TO BE INTERPRETED IN ACCORDANCE WITH THE SECURITIES ACT 1978, EXCEPT TO (A) PERSONS WHOSE PRINCIPAL BUSINESS IS THE INVESTMENT OF MONEY OR WHO, IN THE COURSE OF AND FOR THE PURPOSES OF THEIR BUSINESS HABITUALLY INVEST MONEY; (B) CLOSE BUSINESS ASSOCIATES OF THE SELLER AND (C) ANY OTHER PERSON WHO IN ALL THE CIRCUMSTANCES CAN PROPERLY BE REGARDED AS HAVING BEEN SELECTED OTHERWISE THAN AS A MEMBER OF THE PUBLIC IN NEW ZEALAND WITHIN THE MEANING OF THE SECURITIES ACT 1978. SPANISH SELLING RESTRICTIONS THE NOTES MAY NOT BE OFFERED OR SOLD IN SPAIN EXCEPT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPANISH SECURITIES MARKET LAW (LEY24/1988, DE 28 DE JULIO, DEL MERCADO DE VALORES), AS AMENDED AND RESTATED, AND ROYAL DECREE 291/1992 OF 27 MARCH ON ISSUES AND PUBLIC OFFERINGS OF SECURITIES (REAL DECRETO 291/1992, DE 27 MARZO, SOBRE EMISIONES Y OFERTAS PUBLICAS DE VENTA DE VALORES) AS AMENDED AND RESTATED, AND THE DECREES AND REGULATIONS MADE THEREUNDER. THE NOTES HAVE NOT AND WILL NOT BE SOLD, OFFERED OR DISTRIBUTED IN SPAIN EXCEPT IN CIRCUMSTANCES WHICH DO NOT CONSTITUTE AN OFFER OF SECURITIES IN SPAIN WITHIN THE MEANING OF SPANISH SECURITIES LAWS AND REGULATIONS. THE PROSPECTUS HAS NOT BEEN REGISTERED WITH THE SPANISH SECURITIES MARKET COMMISSION - xiii -
(COMISION NACIONAL DEL MERCADO DE VALORES) AND THEREFORE IT IS NOT INTENDED FOR THE OFFERING OR SALE OF THE NOTES IN SPAIN. UNITED KINGDOM SELLING RESTRICTIONS ANY INVITATION OR INDUCEMENT TO ENGAGE IN INVESTMENT ACTIVITY (WITHIN THE MEANING OF SECTION 21 OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (THE "FSMA")) IN CONNECTION WITH THE ISSUE OR SALE OF ANY NOTES MAY ONLY BE COMMUNICATED OR CAUSED TO BE COMMUNICATED IN CIRCUMSTANCES IN WHICH SECTION 21(1) OF THE FSMA DOES NOT APPLY TO THE ISSUER. EACH PURCHASER OF THE NOTES MUST COMPLY WITH ALL APPLICABLE PROVISIONS OF THE FSMA WITH RESPECT TO ANYTHING DONE BY IT IN RELATION TO THE NOTES, FROM OR OTHERWISE INVOLVING THE UNITED KINGDOM. GENERAL NOTICE EACH PURCHASER OF THE NOTES MUST COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS IN FORCE IN EACH JURISDICTION IN WHICH IT PURCHASES, OFFERS OR SELLS SUCH NOTES OR POSSESSES OR DISTRIBUTES THIS PROSPECTUS AND MUST OBTAIN ANY CONSENT, APPROVAL OR PERMISSION REQUIRED FOR THE PURCHASE, OFFER OR SALE BY IT OF SUCH NOTES UNDER THE LAWS AND REGULATIONS IN FORCE IN ANY JURISDICTIONS TO WHICH IT IS SUBJECT OR IN WHICH IT MAKES SUCH PURCHASES, OFFERS OR SALES, AND NONE OF THE ISSUER, THE INITIAL PURCHASER OR THE PORTFOLIO MANAGER SPECIFIED HEREIN SHALL HAVE ANY RESPONSIBILITY THEREFOR. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. EACH PURCHASER AND TRANSFEREE OF A CLASS A NOTE, CLASS B NOTE, CLASS C NOTE OR CLASS D NOTE, OR OF ANY INTEREST THEREIN, WILL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND COVENANTED THAT, AT THE TIME OF ITS ACQUISITION AND THROUGHOUT THE PERIOD OF ITS HOLDING AND DISPOSITION OF SUCH NOTE OR INTEREST THEREIN, EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF, AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT 1974, AS AMENDED ("ERISA")) THAT IS SUBJECT TO SECTION 406 OF ERISA, OR A "PLAN" SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY - xiv -
FEDERAL STATE, LOCAL OR NON-U.S. LAW THAT IS SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE ("SIMILAR LAW"), OR (B) IT IS, OR IS ACTING ON BEHALF OF, BENEFIT PLAN INVESTOR, THAT IS SUBJECT TO ERISA OR PLAN SUBJECT TO SECTION 4975 OF THE CODE OR SIMILAR PLAN, AND ITS PURCHASE, HOLDING AND DISPOSITION OF SUCH NOTE DOES NOT VIOLATE ERISA OR SECTION 4975 OF THE CODE OR SIMILAR LAW. THE CLASS E NOTES AND THE CLASS F SUBORDINATED NOTES AND THE COMBINATION NOTES (AND INTERESTS THEREIN) MAY NOT BE PURCHASED OR HELD BY, AND EACH PURCHASER OR HOLDER OF ANY CLASS E NOTE OR CLASS F SUBORDINATED NOTE OR A COMBINATION NOTE WILL BE DEEMED TO REPRESENT AND AGREE THAT IT IS NOT AND WILL NOT BE, FOR THE PERIOD THAT IT HOLDS SUCH NOTES (OR INTERESTS), (A) AN "EMPLOYEE BENEFIT PLAN" WITHIN THE MEANING OF SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), WHICH IS SUBJECT TO ERISA, (B) A "PLAN" WITHIN THE MEANING OF AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (C) ANOTHER EMPLOYEE BENEFIT PLAN SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL, OR NON-U.S. LAW SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE ("SIMILAR LAW"), OR (D) ANY PERSON OR ENTITY ANY OF WHOSE ASSETS INCLUDE, OR ARE DEEMED FOR PURPOSES OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH ANOTHER EMPLOYEE BENEFIT PLAN, SIMILAR LAW) TO INCLUDE, THE "PLAN ASSETS" OF ANY SUCH "EMPLOYEE BENEFIT PLAN," "PLAN" OR OTHER EMPLOYEE BENEFIT PLAN. FURTHERMORE, EACH PURCHASER OR HOLDER OF ANY CLASS E NOTE OR CLASS F SUBORDINATED NOTE OR A COMBINATION NOTE OR ANY INTEREST THEREIN WILL BE DEEMED TO REPRESENT AND AGREE BY SUCH PURCHASE OR HOLDING THEREOF THAT IT WILL NOT SELL OR OTHERWISE TRANSFER SUCH NOTES OR ANY INTEREST THEREIN OTHERWISE THAN TO A PURCHASER OR TRANSFEREE THAT IS DEEMED TO REPRESENT AND AGREE WITH RESPECT TO ITS PURCHASE OR HOLDING OF SUCH NOTES TO THE SAME EFFECT AS THE PURCHASER'S REPRESENTATION AND AGREEMENT SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE. INTERNAL REVENUE SERVICE CIRCULAR 230 DISCLOSURE PURSUANT TO INTERNAL REVENUE SERVICE CIRCULAR 230, WE HEREBY INFORM YOU THAT THE DESCRIPTION SET FORTH HEREIN WITH RESPECT TO U.S. FEDERAL TAX ISSUES WAS NOT INTENDED OR WRITTEN TO BE USED, AND SUCH DESCRIPTION CANNOT BE USED, BY ANY TAXPAYER, FOR THE PURPOSE OF AVOIDING ANY PENALTIES THAT MAY BE IMPOSED ON THE TAXPAYER UNDER THE U.S. INTERNAL REVENUE CODE. SUCH DESCRIPTION WAS - xv -
WRITTEN TO SUPPORT THE MARKETING OF THE NOTES. THIS DESCRIPTION IS LIMITED TO THE U.S. FEDERAL TAX ISSUES DESCRIBED HEREIN. IT IS POSSIBLE THAT ADDITIONAL ISSUES MAY EXIST THAT COULD AFFECT THE U.S. FEDERAL TAX TREATMENT OF AN INVESTMENT IN THE SERIES NOTES, OR THE MATTER THAT IS THE SUBJECT OF THE DESCRIPTION NOTED HEREIN, AND THIS DESCRIPTION DOES NOT CONSIDER OR PROVIDE ANY CONCLUSIONS WITH RESPECT TO ANY SUCH ADDITIONAL ISSUES. YOU SHOULD SEEK ADVICE BASED ON YOUR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR. NOTWITHSTANDING ANYTHING IN THIS PROSPECTUS TO THE CONTRARY, EACH PROSPECTIVE INVESTOR (AND EACH EMPLOYEE, REPRESENTATIVE OR OTHER AGENT OF EACH PROSPECTIVE INVESTOR) MAY DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY KIND, THE TAX TREATMENT AND TAX STRUCTURE OF AN INVESTMENT IN THE NOTES AND ALL MATERIALS OF ANY KIND (INCLUDING OPINIONS OR OTHER TAX ANALYSES) THAT ARE PROVIDED TO THE PROSPECTIVE INVESTOR RELATING TO SUCH TAX TREATMENT AND TAX STRUCTURE. FOR THESE PURPOSES, THE TAX TREATMENT OF AN INVESTMENT IN THE NOTES MEANS THE PURPORTED OR CLAIMED U.S. FEDERAL, STATE AND LOCAL INCOME TAX TREATMENT OF AN INVESTMENT IN THE NOTES. MOREOVER, THE TAX STRUCTURE OF AN INVESTMENT IN THE NOTES INCLUDES ANY FACT THAT MAY BE RELEVANT TO UNDERSTANDING THE PURPORTED OR CLAIMED U.S. FEDERAL, STATE, AND LOCAL INCOME TAX TREATMENT OF AN INVESTMENT IN THE NOTES. - xvi -