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NUCO2 INC /DE
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S-1
Apr 20, 8:37 AM ET
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NUCO2 INC /FL S-1
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Contents
211
ARTICLE I
DEFINITIONS
ARTICLE II
INITIAL ISSUANCE, INCREASES AND DECREASES OF
THE SERIES 2008-1 CLASS A-2 OUTSTANDING PRINCIPAL AMOUNT AND THE SERIES 2008-1 CLASS A-3 OUTSTANDING PRINCIPAL AMOUNT
(a) Subject to satisfaction of the conditions precedent to the making of Series 2008-1 Class A-2 Advances set forth in the Series 2008-1 Class A-2 Note Purchase Agreement, on any Payment Date during the Commitment Term with respect to the Series 2008-1 Class A-2 Notes, the Co-Issuers may increase the Series 2008-1 Class A-2 Outstanding Principal Amount (such increase referred to as a “Series 2008-1 Class A-2 Increase”), by drawing ratably, at par, principal amounts of the Series 2008-1 Class A-2 Notes corresponding to the aggregate amount of the Series 2008-1 Class A-2 Advances made on such Payment Date; provided that at no time shall a Series 2008-1 Class A-2 Increase be made if, after giving effect thereto, the Series 2008-1 Class A-2 Outstanding Principal Amount would exceed the Series 2008-1 Class A-2 Note Maximum Aggregate Advanced Amount. Each Series 2008-1 Class A-2 Increase shall be made in accordance with the provisions of Sections 2.02 and 2.03 of the Series 2008-1 Class A-2 Note Purchase Agreement and shall be ratably allocated among the Series 2008-1 Class A-2 Noteholders as provided therein. Proceeds from the Series 2008-1 Class A-2 Advances shall be paid as directed by the Co-Issuers in the applicable Series 2008-1 Class A-2 Advance Request or as otherwise set forth in the Series 2008-1 Class
A-2 Note Purchase Agreement. Upon receipt of written notice from the Co-Issuers or the Series 2008-1 Class A-2 Note Administrative Agent of any Series 2008-1 Class A-2 Advance, the Trustee shall indicate in its books and records the amount of such Series 2008-1 Class A-2 Increase.
(b) Subject to satisfaction of the conditions precedent to the making of Series 2008-1 Class A-3 Advances set forth in the Series 2008-1 Class A-3 Note Purchase Agreement, on any Business Day during the Commitment Term with respect to the Series 2008-1 Class A-3 Notes, the Co-Issuers may increase the Series 2008-1 Class A-3 Outstanding Principal Amount (such increase referred to as a “Series 2008-1 Class A-3 Increase”), by drawing ratably, at par, principal amounts of the Series 2008-1 Class A-3 Notes corresponding to the aggregate amount of the Series 2008-1 Class A-3 Advances made on such Business Day; provided that at no time may the Series 2008-1 Class A-3 Outstanding Principal Amount exceed the Series 2008-1 Class A-3 Maximum Principal Amount. Each Series 2008-1 Class A-3 Advance shall be made in accordance with the provisions of Sections 2.02 and 2.03 of the Series 2008-1 Class A-3 Note Purchase Agreement and shall be ratably allocated among the Series 2008-1 Class A-3 Noteholders as provided therein. Proceeds from the Series 2008-1 Class A-3 Advances shall be paid as directed by the Co-Issuers in the applicable Series 2008-1 Class A-3 Advance Request or as otherwise set forth in the Series 2008-1 Class A-3 Note Purchase Agreement. Upon receipt of written notice from the Co-Issuers or the Series 2008-1 Class A-3 Note Administrative Agent of any Series 2008-1 Class A-3 Advance, the Trustee shall indicate in its books and records the amount of such Series 2008-1 Class A-3 Increase.
(a) Required Amortization.
(i) Whenever a Series 2008-1 Class A-2 Excess Principal Event shall have occurred, then, on the Payment Date immediately following discovery by the Transaction Manager, any Co-Issuer, the Trustee, any Series 2008-1 Class A-2 Investor, or any applicable Holder of Series 2008-1 Class A-2 Notes of such Series 2008-1 Class A-2 Excess Principal Event, the Co-Issuers shall deposit to the Collection Account for allocation (in accordance with clause eighth of the Priority of Payments) to the Senior Note Principal Payments Account of the amount of funds referred to in subclause (1) of the next sentence, and to the Senior Note Interest Account of the amount of funds referred to in subclause (2) of the next sentence, and shall direct the Trustee in writing to distribute such funds in accordance with Sections 5.13, 5.14 and 6.1 of the Base Indenture. Such written direction of the Co-Issuers shall provide for the distribution of (1) funds sufficient to decrease the Series 2008-1 Class A-2 Outstanding Principal Amount by the excess of (A) an amount equal to the Series 2008-1 Class A-2 Outstanding Principal Amount as of
such Payment Date over (B) the Series 2008-1 Class A-2 Note Maximum Aggregate Advanced Amount for such Payment Date (the “Series 2008-1 Class A-2 Required Amortization Amounts”) (each decrease of the Series 2008-1 Class A-2 Outstanding Principal Amount pursuant to this Section 2.2(a)(i), or any other required payment of principal in respect of the Series 2008-1 Class A-2 Notes pursuant to Section 3.8 of this Series 2008-1 Supplement, a “Series 2008-1 Class A-2 Required Amortization”), plus (2) any associated Series 2008-1 Class A-2 Breakage Amounts incurred as a result of such decrease (calculated in accordance with the Series 2008-1 Class A-2 Note Purchase Agreement). Such Series 2008-1 Class A-2 Required Amortization shall be allocated among the Series 2008-1 Class A-2 Noteholders in accordance with the order of distribution of principal payments set forth in Sections 5.13, 5.14 and 6.1 of the Base Indenture and in Section 4.02 of the Series 2008-1 Class A-2 Note Purchase Agreement. Upon discovery of such a Series 2008-1 Class A-2 Excess Principal Event, the Co-Issuers promptly, but in any event within one (1) Business Day, shall deliver written notice (by facsimile with original to follow by mail) of the need for the distribution of any such Series 2008-1 Class A-2 Required Amortizations to the Trustee and the Series 2008-1 Class A-2 Note Administrative Agent.
(ii) Whenever a Series 2008-1 Class A-3 Excess Principal Event shall have occurred, then, on the Payment Date immediately following discovery by the Transaction Manager, any Co-Issuer, the Trustee, any Series 2008-1 Class A-3 Investor, or any applicable Holder of Series 2008-1 Class A-3 Notes of such Series 2008-1 Class A-3 Excess Principal Event, the Co-Issuers shall deposit to the Collection Account for allocation (in accordance with clause eighth of the Priority of Payments) to the Senior Note Principal Payments Account of the amount of funds referred to in subclause (1) of the next sentence, and to the Senior Note Interest Account of the amount of funds referred to in subclause (2) of the next sentence, and shall direct the Trustee in writing to distribute such funds in accordance with Sections 5.13, 5.14 and 6.1 of the Base Indenture. Such written direction of the Co-Issuers shall provide for the distribution of (1) funds sufficient to decrease the Series 2008-1 Class A-3 Outstanding Principal Amount by the excess of (A) an amount equal to the Series 2008-1 Class A-3 Outstanding Principal Amount as of such Payment Date over (B) the Series 2008-1 Class A-3 Maximum Principal Amount for such Payment Date (each decrease of the Series 2008-1 Class A-3 Outstanding Principal Amount pursuant to this Section 2.2(a)(ii), or any other required payment of principal in respect of the Series 2008-1 Class A-3 Notes pursuant to Section 3.8 of this Series 2008-1 Supplement, a “Series 2008-1 Class A-3 Required Amortization”), plus (2) any associated Series 2008-1 Class A-3 Breakage Amounts incurred as a result of such decrease (calculated in accordance with the Series 2008-1 Class A-3 Note Purchase Agreement). Such Series 2008-1 Class A-3 Required Amortization shall be allocated among the Series
2008-1 Class A-3 Noteholders in accordance with the order of distribution of principal payments set forth in Sections 5.13, 5.14 and 6.1 of the Base Indenture and in Section 4.02 of the Series 2008-1 Class A-3 Note Purchase Agreement. Upon discovery of such a Series 2008-1 Class A-3 Excess Principal Event, the Co-Issuers promptly, but in any event within one (1) Business Day, shall deliver written notice (by facsimile with original to follow by mail) of the need for the distribution of any such Series 2008-1 Class A-3 Required Amortizations to the Trustee and the Series 2008-1 Class A-3 Note Administrative Agent.
(b) Voluntary Decrease.
(i) On any Payment Date, upon at least three (3) Business Day’s prior written notice to each Series 2008-1 Class A-2 Investor, the Series 2008-1 Class A-2 Note Administrative Agent and the Trustee, the Co-Issuers may decrease the Series 2008-1 Class A-2 Outstanding Principal Amount (each such decrease of the Series 2008-1 Class A-2 Outstanding Principal Amount pursuant to this Section 2.2(b)(i), a “Series 2008-1 Class A-2 Voluntary Decrease”) by depositing to the Senior Note Principal Payments Account the amount of funds referred to in subclause (1) of the next sentence, and to the Senior Note Interest Account the amount of funds referred to in subclause (2) of the next sentence on such Payment Date, and providing a written report to the Trustee directing the Trustee to distribute such funds to the Holders of the Series 2008-1 Class A-2 Notes on a pro rata basis according to the amounts owed on such Series 2008-1 Class A-2 Notes in accordance with Section 6.1(a) of the Base Indenture. Such written direction of the Co-Issuers shall provide for the distribution of (1) an amount (subject to the last sentence of this Section 2.2(b)(i)) equal to the amount of such Series 2008-1 Class A-2 Voluntary Decrease, plus (2) any associated Series 2008-1 Class A-2 Breakage Amounts incurred as a result of such decrease (calculated in accordance with the Series 2008-1 Class A-2 Note Purchase Agreement). Each such Series 2008-1 Class A-2 Voluntary Decrease shall be in a minimum principal amount as provided in the Series 2008-1 Class A-2 Note Purchase Agreement.
(ii) On any Payment Date, upon at least three (3) Business Day’s prior written notice to each Series 2008-1 Class A-3 Investor, the Series 2008-1 Class A-3 Note Administrative Agent and the Trustee, the Co-Issuers may decrease the Series 2008-1 Class A-3 Outstanding Principal Amount (each such decrease of the Series 2008-1 Class A-3 Outstanding Principal Amount pursuant to this Section 2.2(b)(i), a “Series 2008-1 Class A-3 Voluntary Decrease”) by depositing to the Senior Note Principal Payments Account the amount of funds referred to in subclause (1) of the next sentence, and to the Senior Note Interest Account the amount of funds referred to in subclause (2) of the next sentence on such Payment Date, and providing a written report to
the Trustee directing the Trustee to distribute such funds to the Holders of the Series 2008-1 Class A-3 Notes on a pro rata basis according to the amounts owed on such Series 2008-1 Class A-3 Notes in accordance with Section 6.1(a) of the Base Indenture. Such written direction of the Co-Issuers shall provide for the distribution of (1) an amount (subject to the last sentence of this Section 2.2(b)(ii)) equal to the amount of such Series 2008-1 Class A-3 Voluntary Decrease, plus (2) any associated Series 2008-1 Class A-3 Breakage Amounts incurred as a result of such decrease (calculated in accordance with the Series 2008-1 Class A-3 Note Purchase Agreement). Each such Series 2008-1 Class A-3 Voluntary Decrease shall be in a minimum principal amount as provided in the Series 2008-1 Class A-3 Note Purchase Agreement.
(a) upon distribution to the Series 2008-1 Class A-2 Noteholders of principal of the Series 2008-1 Class A-2 Notes in connection with each Series 2008-1 Class A-2 Decrease, the Trustee shall indicate in its books and records such Series 2008-1 Class A-2 Decrease, and
(b) upon distribution to the Series 2008-1 Class A-3 Noteholders of principal of the Series 2008-1 Class A-3 Notes in connection with each Series 2008-1 Class A-3 Decrease, the Trustee shall indicate in its books and records such Series 2008-1 Class A-3 Decrease.
ARTICLE III
ALLOCATIONS; PAYMENTS
(a) a portion of the net proceeds from the initial sale of the Series 2008-1 Notes in an amount equal to $1,461,806 shall be deposited into the Senior Note Interest Reserve Account;
(b) a portion of the proceeds from the initial sale of the Series 2008-1 Notes in an amount equal to $1,969,618 shall be deposited into the Collection Account; and
(c) the remainder of the net proceeds from the sale of the Series 2008-1 Notes will be paid to, or at the direction of, the Co-Issuers.
(a) the Series 2008-1 Class A-1 Notes, the Series 2008-1 Class A-2 Notes and the Series 2008-1 Class A-3 Notes shall be entitled to all amounts allocated to such Notes, to the extent that funds are available therefor, in accordance with the provisions of the Priority of Payments and the other terms of the Base Indenture, including the Senior Note Interest Amount, the Senior Note Contingent Additional Interest Amount, the Series 2008-1 Note Make Whole Premium, the Series 2008-1 Class A-2 Senior Note Commitment Fee Amount, the Series 2008-1 Class A-3 Senior Note Commitment Fee Amount, the Series 2008-1 Class A-2 Other Amounts, the Series 2008-1 Class A-3 Other Amounts, the Series 2008-1 Class A-2 Breakage Amounts and the Series 2008-1 Class A-3 Breakage Amounts allocable to such Notes, all amounts payable in respect of the principal of such Notes and other amounts payable in respect of such Notes; and
(b) the Series 2008-1 Class B-1 Notes shall be entitled to all amounts allocated to such Notes, to the extent that funds are available therefor, in accordance with the provisions of the Priority of Payments and the other terms of the Base Indenture, including the Subordinated Notes Interest Amount, the Subordinated Note Contingent Additional Interest Amount, the Series 2008-1 Note Make Whole Premium allocable to such Notes, all amounts payable in respect of the principal of such Notes and other amounts payable in respect of such Notes.
(a) to the Series 2008-1 Class A-1 Noteholders from the Senior Note Interest Account the amount allocated thereto for the payment of interest and any Note Make Whole Premium in respect of the Series 2008-1 Class A-1 Notes,
(b) to the Series 2008-1 Class A-1 Noteholders from the Senior Note Principal Payments Account the amount allocated thereto for the payment of principal in respect of the Series 2008-1 Class A-1 Notes,
(c) to the Series 2008-1 Class A-1 Noteholders from the Senior Note Contingent Additional Interest Account the amount deposited thereto for the payment of Series 2008-1 Class A-1 Contingent Additional Interest,
(d) to the Series 2008-1 Class A-2 Noteholders from the Senior Note Interest Account the amount allocated thereto for the payment of interest and any Class A-2 Breakage Amount in respect of the Series 2008-1 Class A-2 Notes,
(e) to the Series 2008-1 Class A-2 Noteholders from the Senior Note Principal Payments Account the amount allocated thereto for the payment of principal in respect of the Series 2008-1 Class A-2 Notes,
(f) to the Series 2008-1 Class A-2 Noteholders from the Senior Note Contingent Additional Interest Account the amount deposited thereto for the payment of Series 2008-1 Class A-2 Contingent Additional Interest,
(g) to the Series 2008-1 Class A-2 Noteholders from the Class A-2 Notes Commitment Fees Account the amount deposited thereto for the payment of the Series 2008-1 Class A-2 Senior Note Commitment Fee Amount,
(h) to the Series 2008-1 Class A-2 Note Administrative Agent on behalf of itself or on behalf of the Holders of the Series 2008-1 Class A-2 Notes, as applicable, from the Collection Account the amount deposited thereto for the payment of the Series 2008-1 Class A-2 Other Amounts,
(i) to the Series 2008-1 Class A-3 Noteholders from the Senior Note Interest Account the amount allocated thereto for the payment of interest and any Series 2008-1 Class A-3 Breakage Amount,
(j) to the Series 2008-1 Class A-3 Noteholders from the Senior Note Principal Payments Account the amount allocated thereto for the payment of principal in respect of the Series 2008-1 Class A-3 Notes,
(k) to the Series 2008-1 Class A-3 Noteholders from the Senior Note Contingent Additional Interest Account the amount deposited thereto for the payment of Series 2008-1 Class A-3 Contingent Additional Interest,
(l) to the Series 2008-1 Class A-3 Noteholders from the Class A-3 Notes Commitment Fees Account the amount deposited thereto for the payment of the Series 2008-1 Class A-3 Senior Note Commitment Fee Amount,
(m) to the Series 2008-1 Class A-3 Note Administrative Agent on behalf of itself or on behalf of the Holders of the Series 2008-1 Class A-3 Notes, as applicable, from the Collection Account the amount deposited thereto for the payment of the Series 2008-1 Class A-3 Other Amounts,
(n) to the Series 2008-1 Class B-1 Noteholders from the Subordinated Note Interest Account the amount allocated thereto for the payment of interest and any Note Make Whole Premium in respect of the Series 2008-1 Class B-1 Notes,
(o) to the Series 2008-1 Class B-1 Noteholders from the Subordinated Note Principal Payments Account the amount allocated thereto for the payment of principal in respect of the Series 2008-1 Class B-1 Notes, and
(p) to the Series 2008-1 Class B-1 Noteholders from the Subordinated Note Contingent Additional Interest Account the amount allocated thereto for the
payment of Subordinated Note Contingent Additional Interest in respect of the Series 2008-1 Class B-1 Notes.
(a) Series 2008-1 Class A-1 Note Interest Amount. From and after the Series 2008-1 Closing Date and until the Series 2008-1 Final Payment has been made, interest on the Series 2008-1 Class A-1 Notes will accrue at a fixed rate of 7.25% per annum (the “Series 2008-1 Class A-1 Note Interest Rate”) and will be due and payable in arrears and distributed to the Series 2008-1 Class A-1 Noteholders on each Payment Date, commencing on the Payment Date occurring in July 2008. The amount of interest to be paid on such Payment Date to the Series 2008-1 Class A-1 Noteholders (the “Series 2008-1 Class A-1 Interest”) will be an amount equal to the sum of (a) the accrued interest at the Series 2008-1 Class A-1 Note Interest Rate on the Series 2008-1 Class A-1 Outstanding Principal Amount (as of the first day of the related Interest Period after giving effect to all payments of principal made to such Noteholders as of such day), calculated based on a year of twelve 30-day months, and (b) the amount of any Senior Note Interest Shortfall Amount with respect to the Series 2008-1 Class A-1 Notes for the immediately preceding Interest Period, together with any interest thereon. The Series 2008-1 Class A-1 Interest constitutes part of the “Senior Note Interest Amount” for purposes of clause fourth of the Priority of Payments. Failure to pay, in full, any portion of any Series 2008-1 Class A-1 Interest that is due and payable on any Payment Date will be an Event of Default, and to the extent any portion of any Series 2008-1 Class A-1 Interest is not paid, in full, when due, such unpaid amount shall accrue interest at the Series 2008-1 Class A-1 Note Interest Rate until paid in full; provided that in any event all accrued but unpaid Series 2008-1 Class A-1 Interest shall be due and payable on the Series 2008-1 Legal Final Maturity Date, on any Series 2008-1 Prepayment Date with respect to a prepayment in full of the Series 2008-1 Class A-1 Notes or on any other day on which all of the Series 2008-1 Class A-1 Outstanding Principal Amount is required to be paid in full. The Series 2008-1 Class A-1 Interest is not guaranteed by any Person.
(b) Series 2008-1 Class A-1 Contingent Additional Interest. If the Series 2008-1 Final Payment has not been made on the Series 2008-1 Scheduled Maturity Date, then for each Interest Period following the Series 2008-1 Scheduled Maturity Date (including without limitation for each Interest Period during any Series 2008-1 Extension Period and for each Interest Period thereafter), if (a) the sum of (i) One-Month LIBOR plus (ii) 5.00% per annum plus (iii) 2.00% (such aggregate amount in this clause (a), the “Series 2008-1 Class A-1 Stepped-Up Interest Rate”) is greater than (b) the product of (x) the Series 2008-1 Class A-1 Note Interest Rate and (y) the ratio achieved by dividing (I) 30 by (II) the number of days in each such Interest Period (such excess, if any, the “Series 2008-1 Class A-1 Contingent Additional Interest Rate”), contingent additional interest shall accrue on the Series 2008-1 Class A-1 Outstanding Principal Amount
during each such Interest Period at an annual interest rate equal to the Series 2008-1 Class A-1 Contingent Additional Interest Rate, calculated based on a 360-day year and the actual number of days elapsed during each such Interest Period (such contingent additional interest, the “Series 2008-1 Class A-1 Contingent Additional Interest”).
(c) Payment of Series 2008-1 Class A-1 Contingent Additional Interest. All accrued but unpaid Series 2008-1 Class A-1 Contingent Additional Interest shall be due and payable in full on any Payment Date only as and when amounts are made available for payment thereof in accordance with the Priority of Payments. The Series 2008-1 Class A-1 Contingent Additional Interest constitutes part of the “Senior Note Contingent Additional Interest Amount” for purposes of clause seventeenth of the Priority of Payments. Failure to pay any portion of any Series 2008-1 Class A-1 Contingent Additional Interest on any Payment Date will not be an Event of Default, but interest shall accrue on such unpaid portion of such Series 2008-1 Contingent Additional Interest at the Series 2008-1 Class A-1 Stepped-Up Interest Rate; provided that in any event all accrued but unpaid Series 2008-1 Class A-1 Contingent Additional Interest shall be due and payable in full on the Series 2008-1 Legal Final Maturity Date, on any Series 2008-1 Prepayment Date with respect to a prepayment in full of the Series 2008-1 Class A-1 Notes or on any other day on which all of the Series 2008-1 Class A-1 Outstanding Principal Amount is required to be paid in full. The Series 2008-1 Class A-1 Contingent Additional Interest is not guaranteed by any Person.
(d) Series 2008-1 Class A-1 Initial Interest Period. The initial Interest Period for the Series 2008-1 Class A-1 Notes shall be from and including the Series 2008-1 Closing Date to but excluding the Payment Date occurring in July 2008.
(a) Series 2008-1 Class A-2 Note Interest Amount. From and after the Series 2008-1 Closing Date, the Series 2008-1 Class A-2 Outstanding Principal Amount will accrue interest at the Series 2008-1 Class A-2 Note Interest Rate which will be due and payable in arrears and distributed to the Series 2008-1 Class A-2 Noteholders on each Payment Date, commencing on the Payment Date occurring in July 2008. The amount of interest to be paid on such Payment Date to the Series 2008-1 Class A-2 Noteholders (the “Series 2008-1 Class A-2 Interest”) will be, with respect to any Series 2008-1 Class A-2 Notes for each Interest Period, an amount equal to the sum of (a) the aggregate of the Series 2008-1 Class A-2 Daily Interest Amounts for each day during the related Interest Period and (b) the amount of any Senior Note Interest Shortfall Amount with respect to the Series 2008-1 Class A-2 Notes for the immediately preceding Interest Period, together with any interest thereon. The Series 2008-1 Class A-2 Interest constitutes part of the “Senior Note Interest Amount” for purposes of clause fourth of the Priority of Payments. Failure to pay, in full, any portion of any Series 2008-1 Class A-2 Interest that is due and payable on any Payment Date will be an Event of Default, and, to the extent any portion of any Series 2008-1 Class A-2 Interest is not paid, in full, when due, such unpaid amount shall accrue interest at the Series 2008-1 Class A-2 Note Interest Rate until paid in full; provided that in any event all accrued but unpaid Series 2008-1 Class A-2 Interest shall be payable on the Series 2008-1 Legal Final Maturity Date, or any
Series 2008-1 Prepayment Date with respect to a prepayment in full of the Series 2008-1 Class A-2 Notes, or any day when the Series 2008-1 Class A-2 Commitments are terminated in full, or on any other day on which all of the Series 2008-1 Class A-2 Outstanding Principal Amount is required to be paid in full. The Series 2008-1 Class A-2 Interest is not guaranteed by any Person.
(b) Series 2008-1 Class A-2 Senior Note Commitment Fee Amount. From and after the Series 2008-1 Closing Date, the Series 2008-1 Class A-2 Noteholders will be due an amount equal to the Series 2008-1 Class A-2 Senior Note Commitment Fee Amount, and such amount will be due and payable in arrears and distributed to the Series 2008-1 Class A-2 Noteholders on each Payment Date, commencing on the Payment Date occurring in July 2008. The Series 2008-1 Class A-2 Senior Note Commitment Fee Amount constitutes part of the “Class A-2 Senior Note Commitment Fee Amount” for purposes of clause fifth of the Priority of Payments. Failure to pay, in full, any portion of any Series 2008-1 Class A-2 Senior Note Commitment Fee Amount that is due and payable on any Payment Date will be an Event of Default, and, to the extent any portion of any Series 2008-1 Class A-2 Senior Note Commitment Fee Amount is not paid, in full, when due, such unpaid amount shall accrue interest at the Series 2008-1 Class A-2 Note Interest Rate until paid in full; provided that in any event all accrued but unpaid Series 2008-1 Class A-2 Senior Note Commitment Fee Amounts shall be payable on the Series 2008-1 Legal Final Maturity Date, or any Series 2008-1 Prepayment Date with respect to a prepayment in full of the Series 2008-1 Class A-2 Notes, or any day when the Series 2008-1 Class A-2 Commitments are terminated in full, or on any other day on which all of the Series 2008-1 Class A-2 Outstanding Principal Amount is required to be paid in full. The Series 2008-1 Class A-2 Senior Note Commitment Fee Amount is not guaranteed by any Person.
(c) Series 2008-1 Class A-2 Contingent Additional Interest. If the Series 2008-1 Final Payment has not been made on the Series 2008-1 Scheduled Maturity Date, then for each Interest Period following the Series 2008-1 Scheduled Maturity Date (including without limitation for each Interest Period during any Series 2008-1 Extension Period and for each Interest Period thereafter), contingent additional interest shall accrue on the Series 2008-1 Class A-2 Outstanding Principal Amount during each such Interest Period at an annual interest rate equal to the Series 2008-1 Class A-2 Contingent Additional Interest Rate, calculated based on a 360-day year and the actual number of days elapsed during each such Interest Period.
(d) Payment of Series 2008-1 Class A-2 Contingent Additional Interest. All accrued but unpaid Series 2008-1 Class A-2 Contingent Additional Interest shall be due and payable in full on any Payment Date only as and when amounts are made available for payment thereof in accordance with the Priority of Payments. The Series 2008-1 Class A-2 Contingent Additional Interest constitutes part of the “Senior Note Contingent Additional Interest Amount” for purposes of clause seventeenth of the Priority of Payments. Failure to pay any portion of any Series 2008-1 Class A-2 Contingent Additional Interest on any Payment Date will not be an Event of Default, but interest shall accrue on such unpaid portion of such Series 2008-1 Class A-2 Contingent Additional Interest at the Series 2008-1 Class A-2 Contingent Additional Interest Rate;
provided that in any event all accrued but unpaid Series 2008-1 Class A-2 Contingent Additional Interest shall be payable on the Series 2008-1 Legal Final Maturity Date, or any Series 2008-1 Prepayment Date with respect to a prepayment in full of the Series 2008-1 Class A-2 Notes, or any day when the Class A-2 Commitments are terminated in full, or on any other day on which all of the Series 2008-1 Class A-2 Outstanding Principal Amount is required to be paid in full. The Series 2008-1 Class A-2 Contingent Additional Interest is not guaranteed by any Person.
(e) Series 2008-1 Class A-2 Other Amounts. From and after the Series 2008-1 Closing Date, the Series 2008-1 Class A-2 Other Amounts, if any, will be due and payable in arrears and distributed to the Series 2008-1 Class A-2 Note Administrative Agent on each Payment Date, commencing on the Payment Date occurring in July 2008. The Series 2008-1 Class A-2 Note Administrative Agent shall distribute such funds in accordance with Section 4.02 of the Series 2008-1 Class A-2 Note Purchase Agreement. The Series 2008-1 Class A-2 Other Amounts constitute part of the “Class A-2 Other Amounts” for purposes of clause nineteenth of the Priority of Payments. Failure to pay, in full, any portion of any Series 2008-1 Class A-2 Other Amounts that is due and payable on any Payment Date will be an Event of Default.
(f) Series 2008-1 Class A-2 Initial Interest Period. The initial Interest Period for the Series 2008-1 Class A-2 Notes shall be from and including the Series 2008-1 Closing Date to but excluding the Payment Date occurring in July 2008.
(a) Series 2008-1 Class A-3 Note Interest Amount. From and after the Series 2008-1 Closing Date, the Series 2008-1 Class A-3 Outstanding Principal Amount will accrue interest at the Series 2008-1 Class A-3 Note Interest Rate which will be due and payable in arrears and distributed to the Series 2008-1 Class A-3 Noteholders on each Payment Date, commencing on the Payment Date occurring in July 2008. The amount of interest to be paid on such Payment Date to the Series 2008-1 Class A-3 Noteholders (the “Series 2008-1 Class A-3 Interest”) will be, with respect to any Series 2008-1 Class A-3 Notes for each Interest Period, an amount equal to the sum of (a) the aggregate of the Series 2008-1 Class A-3 Daily Interest Amounts for each day during the related Interest Period and (b) the amount of any Senior Note Interest Shortfall Amount with respect to the Series 2008-1 Class A-3 Notes for the immediately preceding Interest Period, together with any interest thereon. The Series 2008-1 Class A-3 Interest constitutes part of the “Senior Note Interest Amount” for purposes of clause fourth of the Priority of Payments. Failure to pay, in full, any portion of any Series 2008-1 Class A-3 Interest that is due and payable on any Payment Date will be an Event of Default, and, to the extent any portion of any Series 2008-1 Class A-3 Interest is not paid, in full, when due, such unpaid amount shall accrue interest at the Series 2008-1 Class A-3 Note Interest Rate until paid in full; provided that in any event all accrued but unpaid Series 2008-1 Class A-3 Interest shall be payable on the Series 2008-1 Legal Final Maturity Date, or any Series 2008-1 Prepayment Date with respect to a prepayment in full of the Series 2008-1 Class A-3 Notes, or any day when the Series 2008-1 Class A-3 Commitments are terminated in full, or on any other day on which all of the Series 2008-1 Class A-3
Outstanding Principal Amount is required to be paid in full. The Series 2008-1 Class A-3 Interest is not guaranteed by any Person.
(b) Series 2008-1 Class A-3 Senior Note Commitment Fee Amount. From and after the Series 2008-1 Closing Date, the Series 2008-1 Class A-3 Noteholders will be due an amount equal to the Series 2008-1 Class A-3 Senior Note Commitment Fee Amount, and such amount will be due and payable in arrears and distributed to the Series 2008-1 Class A-3 Noteholders on each Payment Date, commencing on the Payment Date occurring in July 2008. The Series 2008-1 Class A-3 Senior Note Commitment Fee Amount constitutes part of the “Class A-3 Senior Note Commitment Fee Amount” for purposes of clause fifth of the Priority of Payments. Failure to pay, in full, any portion of any Series 2008-1 Class A-3 Senior Note Commitment Fee Amount that is due and payable on any Payment Date will be an Event of Default, and, to the extent any portion of any Series 2008-1 Class A-3 Senior Note Commitment Fee Amount is not paid, in full, when due, such unpaid amount shall accrue interest at the Series 2008-1 Class A-3 Note Interest Rate until paid in full; provided that in any event all accrued but unpaid Series 2008-1 Class A-3 Senior Note Commitment Fee Amounts shall be payable on the Series 2008-1 Legal Final Maturity Date, or any Series 2008-1 Prepayment Date with respect to a prepayment in full of the Series 2008-1 Class A-3 Notes, or any day when the Series 2008-1 Class A-3 Commitments are terminated in full, or on any other day on which all of the Series 2008-1 Class A-3 Outstanding Principal Amount is required to be paid in full. The Series 2008-1 Class A-3 Senior Note Commitment Fee Amount is not guaranteed by any Person.
(c) Series 2008-1 Class A-3 Contingent Additional Interest. If the Series 2008-1 Final Payment has not been made on the Series 2008-1 Scheduled Maturity Date, then for each Interest Period following the Series 2008-1 Scheduled Maturity Date (including without limitation for each Interest Period during any Series 2008-1 Extension Period and for each Interest Period thereafter), contingent additional interest shall accrue on the Series 2008-1 Class A-3 Outstanding Principal Amount during each such Interest Period at an annual interest rate equal to the Series 2008-1 Class A-3 Contingent Additional Interest Rate, calculated based on a 360-day year and the actual number of days elapsed during each such Interest Period.
(d) Payment of Series 2008-1 Class A-3 Contingent Additional Interest. All accrued but unpaid Series 2008-1 Class A-3 Contingent Additional Interest shall be due and payable in full on any Payment Date only as and when amounts are made available for payment thereof in accordance with the Priority of Payments. The Series 2008-1 Class A-3 Contingent Additional Interest constitutes part of the “Senior Note Contingent Additional Interest Amount” for purposes of clause seventeenth of the Priority of Payments. Failure to pay any portion of any Series 2008-1 Class A-3 Contingent Additional Interest on any Payment Date will not be an Event of Default, but interest shall accrue on such unpaid portion of such Series 2008-1 Class A-3 Contingent Additional Interest at the Series 2008-1 Class A-3 Contingent Additional Interest Rate; provided that in any event all accrued but unpaid Series 2008-1 Class A-3 Contingent Additional Interest shall be payable on the Series 2008-1 Legal Final Maturity Date, or any Series 2008-1 Prepayment Date with respect to a prepayment in full of the
Series 2008-1 Class A-3 Notes, or any day when the Class A-3 Commitments are terminated in full, or on any other day on which all of the Series 2008-1 Class A-3 Outstanding Principal Amount is required to be paid in full. The Series 2008-1 Class A-3 Contingent Additional Interest is not guaranteed by any Person.
(e) Series 2008-1 Class A-3 Other Amounts. From and after the Series 2008-1 Closing Date, the Series 2008-1 Class A-3 Other Amounts, if any, will be due and payable in arrears and distributed to the Series 2008-1 Class A-3 Note Administrative Agent on each Payment Date, commencing on the Payment Date occurring in July 2008. The Series 2008-1 Class A-3 Note Administrative Agent shall distribute such funds in accordance with Section 4.02 of the Series 2008-1 Class A-3 Note Purchase Agreement. The Series 2008-1 Class A-3 Other Amounts constitute part of the “Class A-3 Other Amounts” for purposes of clause nineteenth of the Priority of Payments. Failure to pay, in full, any portion of any Series 2008-1 Class A-3 Other Amounts that is due and payable on any Payment Date will be an Event of Default.
(a) Series 2008-1 Class B-1 Note Interest. From and after the Series 2008-1 Closing Date and until the Series 2008-1 Final Payment is made, interest on the Series 2008-1 Class B-1 Notes will accrue at a fixed rate of 9.75% per annum (the “Series 2008-1 Class B-1 Note Interest Rate”) and will be due and payable in arrears and distributed to the Series 2008-1 Class B-1 Noteholders on each Payment Date, commencing on the Payment Date occurring in July 2008, but (subject to the fourth and fifth sentences of this Section 3.7(a)) only to the extent that amounts are made available for payment thereof in accordance with the Priority of Payments. The amount of interest to be paid on such Payment Date to the Series 2008-1 Class B-1 Noteholders (the “Series 2008-1 Class B-1 Interest”) will be an amount equal to the sum of (a) the accrued interest at the Series 2008-1 Class B-1 Note Interest Rate on the Series 2008-1 Class B-1 Outstanding Principal Amount (as of the first day of the related Interest Period after giving effect to all payments of principal made to such Noteholders as of such day), calculated based on a year of twelve 30-day months, and (b) the amount of any Subordinated Notes Interest Shortfall Amount with respect to the Series 2008-1 Class B-1 Notes for the immediately preceding Interest Period, together with any interest thereon. The Series 2008-1 Class B-1 Interest constitutes part of the “Subordinated Notes Interest Amount” for purposes of clause fourteenth of the Priority of Payments. Failure to pay, in full, any portion of any Series 2008-1 Class B-1 Interest that is due and payable on any Payment Date will not be an Event of Default prior to the payment in full of all Outstanding Series 2008-1 Senior Notes, but will be an Event of Default thereafter. In any event, to the extent any portion of any Series 2008-1 Class B-1 Interest is not paid, in full, on any Payment Date, such unpaid portion shall accrue interest at the Series 2008-1 Class B-1 Note Interest Rate until paid in full; provided that in any event all accrued but unpaid Series 2008-1 Class B-1 Interest shall be due and payable on the Series 2008-1
Legal Final Maturity Date, on any Series 2008-1 Prepayment Date with respect to a prepayment in full of the Series 2008-1 Class B-1 Notes or on any other day on which all of the Series 2008-1 Class B-1 Outstanding Principal Amount is required to be paid in full. The Series 2008-1 Class B-1 Interest is not guaranteed by any Person.
(b) Series 2008-1 Class B-1 Contingent Additional Interest. If the Series 2008-1 Final Payment has not been made on the Series 2008-1 Scheduled Maturity Date, then for each Interest Period following the Series 2008-1 Scheduled Maturity Date (including without limitation for each Interest Period during any Series 2008-1 Extension Period and for each Interest Period thereafter), if (a) the sum of (i) One-Month LIBOR plus (ii) 9.00% per annum plus (iii) 2.00% (such aggregate amount in this clause (a), the “Series 2008-1 Class B-1 Stepped-Up Interest Rate”) is greater than (b) the product of (x) the Series 2008-1 Class B-1 Note Interest Rate and (y) the ratio achieved by dividing (I) 30 by (II) the number of days in each such Interest Period (such excess, if any, the “Series 2008-1 Class B-1 Contingent Additional Interest Rate”), contingent additional interest shall accrue on the Series 2008-1 Class B-1 Outstanding Principal Amount during each such Interest Period at an annual interest rate equal to the Series 2008-1 Class B-1 Contingent Additional Interest Rate, calculated based on a 360-day year and the actual number of days elapsed during each such Interest Period (such contingent additional interest, the “Series 2008-1 Class B-1 Contingent Additional Interest”).
(c) Payment of Series 2008-1 Class B-1 Contingent Additional Interest. All accrued but unpaid Series 2008-1 Class B-1 Contingent Additional Interest shall be due and payable in full on any Payment Date only as and when amounts are made available for payment thereof in accordance with the Priority of Payments. The Series 2008-1 Class B-1 Contingent Additional Interest constitutes part of the “Subordinated Note Contingent Additional Interest Amount” for purposes of clause eighteenth of the Priority of Payments. Failure to pay any portion of any Series 2008-1 Class B-1 Contingent Additional Interest on any Payment Date will not be an Event of Default, but interest shall accrue on such unpaid portion of such Series 2008-1 Contingent Additional Interest at the Series 2008-1 Class B-1 Stepped-Up Interest Rate; provided that in any event all accrued but unpaid Series 2008-1 Class B-1 Contingent Additional Interest shall be due and payable in full on the Series 2008-1 Legal Final Maturity Date, on any Series 2008-1 Prepayment Date with respect to a prepayment in full of the Series 2008-1 Class B-1 Notes or on any other day on which all of the Series 2008-1 Class B-1 Outstanding Principal Amount is required to be paid in full. The Series 2008-1 Class B-1 Contingent Additional Interest is not guaranteed by any Person.
(d) Series 2008-1 Class B-1 Initial Interest Period. The initial Interest Period for the Series 2008-1 Class B-1 Notes shall be from and including the Series 2008-1 Closing Date to but excluding the Payment Date occurring in July 2008.
(a) Series 2008-1 Notes Principal Payment at Legal Maturity. The Series 2008-1 Aggregate Outstanding Principal Amount shall be due and payable on the Series 2008-1 Legal Final Maturity Date. The Series 2008-1 Aggregate Outstanding
Principal Amount is not prepayable, in whole or in part, except pursuant to this Section 3.8 and, in respect of the Series 2008-1 Class A-2 Outstanding Principal Amount and the Series 2008-1 Class A-3 Outstanding Principal Amount, Section 2.2 of this Series 2008-1 Supplement.
(b) Series 2008-1 Scheduled Maturity. The Series 2008-1 Final Payment is anticipated to occur on the Payment Date occurring in June 2013 (such date, the “Series 2008-1 Scheduled Maturity Date”). The “Series 2008-1 Adjusted Repayment Date” with respect to the Series 2008-1 Notes, will be (i) unless the Series 2008-1 First Extension Election becomes effective, the Series 2008-1 Scheduled Maturity Date; (ii) from and after the date that the Series 2008-1 First Extension Election becomes effective and unless the Series 2008-1 Second Extension Election becomes effective, the Series 2008-1 First Extended Scheduled Maturity Date; and (iii) from and after the date that the Series 2008-1 Second Extension Election becomes effective, the Series 2008-1 Second Extended Scheduled Maturity Date.
(i) First Extension Election. Subject to the conditions set forth in Section 3.8(b)(iii), the Co-Issuers, shall have the option at least 30 days (but no more than 60 days) prior to the Payment Date occurring in June 2013, to elect (the “Series 2008-1 First Extension Election”) to extend the Series 2008-1 Adjusted Repayment Date to the Payment Date occurring in June 2014 (the “Series 2008-1 First Extended Scheduled Maturity Date”) by delivering written notice to the Trustee, the Administrative Agent, the Series 2008-1 Class A-2 Note Administrative Agent, the Series 2008-1 Class A-3 Note Administrative Agent and the Series 2008-1 Noteholders; provided that upon such extension, the Payment Date occurring in June 2014 shall become the Series 2008-1 Adjusted Repayment Date for all of the Series 2008-1 Notes.
(ii) Second Extension Election. Subject to the conditions set forth in Section 3.8(b)(iii), if the Series 2008-1 First Extension Election has been made and become effective, the Co-Issuers, shall have the option at least 30 days (but no more than 60 days) prior to the Payment Date occurring in June 2014 to elect (the “Series 2008-1 Second Extension Election” and, together with the Series 2008-1 First Extension Election, the “Series 2008-1 Extension Elections”) to extend the Series 2008-1 Adjusted Repayment Date to the Payment Date occurring in June 2015 (the “Series 2008-1 Second Extended Scheduled Maturity Date”) by delivering written notice to the Trustee, the Administrative Agent, the Series 2008-1 Class A-2 Note Administrative Agent, the Series 2008-1 Class A-3 Note Administrative Agent and the Noteholders; provided that upon such extension, the Payment Date occurring in June 2015 shall become the Series 2008-1 Adjusted Repayment Date for all of the Series 2008-1 Notes.
(iii) Conditions Precedent to Extension Elections. It shall be a condition to the effectiveness of the Series 2008-1 Extension
Elections that, (A) in the case of the Series 2008-1 First Extension Election, on the Determination Date occurring in May 2013, (1) either (x) the One-Year DSCR (without giving credit for any Contributions) is greater than or equal to 2.50 times as of such date or (y) the One-Year DSCR (without giving credit for any Contributions) is less than 2.50 times as of such date and the Trustee has received the consent of the Control Party to such Series 2008-1 Extension Election, (B) in the case of the Series 2008-1 Second Extension Election, on the Determination Date occurring in May 2014, (1) either (x) the One-Year DSCR (without giving credit for any Contributions) is greater than or equal to 2.75 times as of such date or (y) the One-Year DSCR (without giving credit for any Contributions) is less than 2.75 times as of such date and the Trustee has received the consent of the Control Party to such Series 2008-1 Extension Election and (C) in the case of both the Series 2008-1 First Extension Election and the Series 2008-1 Second Extension Election, no Early Amortization Event, Default or Event of Default has occurred and is continuing or would occur as a consequence of such Series 2008-1 Extension Election. Any notice given pursuant to Section 3.8(b)(i) or (ii) shall be irrevocable; provided that if the conditions set forth in this Section 3.8(b)(iii) are not met as of the applicable extension date, the 2008-1 Extension Election set forth in such notice shall automatically be deemed ineffective.
(c) Series 2008-1 Notes Mandatory Payments of Principal.
(i) Change of Control. If a Change of Control to which the Control Party has not provided its prior written consent occurs, the Co-Issuers shall prepay all the Series 2008-1 Notes in full by (A) transferring to the Trustee within ten Business Days after the date such Change of Control occurs an amount equal to the aggregate Outstanding Principal Amount of all Series 2008-1 Notes and all other amounts that are or will be due and payable with respect to the Series 2008-1 Notes under the Indenture, the Series 2008-1 Class A-1/B-1 Note Purchase Agreement, the Series 2008-1 Class A-2 Note Purchase Agreement or the Series 2008-1 Class A-3 Note Purchase Agreement as of the Series 2008-1 Prepayment Date (including all interest and fees accrued to such date and any Series 2008-1 Note Make Whole Premium required to be paid in connection therewith pursuant to Section 3.8(d), any associated Series 2008-1 Class A-2 Breakage Amounts or Series 2008-1 Class A-3 Breakage Amounts incurred as a result of such prepayment (calculated in accordance with the Series 2008-1 Class A-2 Note Purchase Agreement or the Series 2008-1 Class A-3 Note Purchase Agreement, as applicable), (B) delivering the applicable prepayment notices pursuant to Section 3.8(f) and (C) directing the Trustee to distribute such amount to the applicable Series 2008-1 Noteholders on the applicable Series 2008-1 Prepayment Date.
(ii) Indemnification Amounts. On any Payment Date, any Additional Senior Note Prepayment Amount arising from any Indemnification Amounts allocated to the Senior Note Principal Payments Account or, if no Senior Notes are then Outstanding (or the amounts on deposit in the Senior Note Principal Payments Account equals the aggregate Outstanding Principal Amount of the Senior Notes Outstanding after giving effect to any deposit to such account on or prior to the applicable Payment Date), to the Subordinated Note Principal Payments Account, pursuant to clause tenth and clause fifteenth, as applicable, of the Priority of Payments shall, in accordance with Sections 5.13 and 5.14 of the Base Indenture, be used to prepay principal on the applicable Classes of Series 2008-1 Notes (and of any other applicable Series of Notes) in the order of priority described in Section 6.1 of the Base Indenture on the related Payment Date. In connection with any payment made pursuant to this Section 3.8(c)(ii), the Co-Issuers shall be obligated to pay to the applicable Noteholders from such Indemnification Amounts the Series 2008-1 Note Make Whole Premium required to be paid in connection therewith pursuant to Section 3.8(d) below, any associated Series 2008-1 Class A-2 Breakage Amounts or Series 2008-1 Class A-3 Breakage Amounts incurred as a result of such prepayment (calculated in accordance with the Series 2008-1 Class A-2 Note Purchase Agreement or the Series 2008-1 Class A-3 Note Purchase Agreement, as applicable).
(iii) Asset Disposition Amounts. On any Payment Date, any Additional Senior Note Prepayment Amount arising from any Asset Disposition Amounts allocated to the Senior Note Principal Payments Account or, if no Senior Notes are then Outstanding (or the amounts on deposit in the Senior Note Principal Payments Account equals the aggregate Outstanding Principal Amount of the Senior Notes Outstanding after giving effect to any deposit to such account on or prior to the applicable Payment Date), to the Subordinated Note Principal Payments Account, pursuant to clause tenth and clause fifteenth, as applicable, of the Priority of Payments shall, in accordance with Sections 5.13 and 5.14 of the Base Indenture, be used to prepay principal on the applicable Classes of Series 2008-1 Notes (and of any other applicable Series of Notes) in the order of priority described in Section 6.1 of the Base Indenture on the related Payment Date. In connection with any payment made pursuant to this Section 3.8(c)(iii), the Co-Issuers shall be obligated to pay to the applicable Noteholders from such Asset Disposition Amounts the Series 2008-1 Note Make Whole Premium required to be paid in connection therewith pursuant to Section 3.8(d) below, any associated Series 2008-1 Class A-2 Breakage Amounts or Series 2008-1 Class A-3 Breakage Amounts incurred as a result of such prepayment (calculated in accordance with the Series 2008-1 Class A-2 Note Purchase Agreement or the Series 2008-1 Class A-3 Note Purchase Agreement, as applicable).
(iv) Insurance Proceeds. On any Payment Date, any Additional Senior Note Prepayment Amount arising from any Insurance Proceeds Amounts allocated to the Senior Note Principal Payments Account or, if no Senior Notes are then Outstanding (or the amounts on deposit in the Senior Note Principal Payments Account equals the aggregate Outstanding Principal Amount of the Senior Notes Outstanding after giving effect to any deposit to such account on or prior to the applicable Payment Date), to the Subordinated Note Principal Payment Account, pursuant to clause tenth and clause fifteenth, as applicable, of the Priority of Payments shall, in accordance with Sections 5.13 and 5.14 of the Base Indenture, be used to prepay principal on the applicable Classes of Series 2008-1 Notes (and of any other applicable Series of Notes) in the order of priority described in Section 6.1 of the Base Indenture on the related Payment Date. In connection with any payment made pursuant to this Section 3.8(c)(iv), the Co-Issuers shall be obligated to pay to the applicable Noteholders from such Insurance Proceeds Amounts the Series 2008-1 Note Make Whole Premium required to be paid in connection therewith pursuant to Section 3.8(d) below, any associated Series 2008-1 Class A-2 Breakage Amounts or Series 2008-1 Class A-3 Breakage Amounts incurred as a result of such prepayment (calculated in accordance with the Series 2008-1 Class A-2 Note Purchase Agreement or the Series 2008-1 Class A-3 Note Purchase Agreement, as applicable).
(v) Excess Capex Amounts. On any Payment Date, any Additional Senior Prepayment Amount arising from any Excess CAPEX Amounts allocated to the Senior Note Principal Payments Account or, if no Senior Notes are then Outstanding (or the amounts on deposit in the Senior Note Principal Payments Account equals the aggregate Outstanding Principal Amount of the Senior Notes Outstanding after giving effect to any deposit to such account on or prior to the applicable Payment Date), to the Subordinated Note Principal Payment Account, pursuant to clause tenth and clause fifteenth, as applicable, of the Priority of Payments shall, in accordance with Sections 5.13 and 5.14 of the Base Indenture, be used to prepay principal on the applicable Classes of Series 2008-1 Notes (and of any other applicable Series of Notes) in the order of priority described in Section 6.1 of the Base Indenture on the related Payment Date. In connection with any payment made pursuant to this Section 3.8(c)(vi), the Co-Issuers shall be obligated to pay to the applicable Noteholders from such Excess CAPEX Amounts the Series 2008-1 Note Make Whole Premium required to be paid in connection therewith pursuant to Section 3.8(d) below, any associated Series 2008-1 Class A-2 Breakage Amounts or Series 2008-1 Class A-3 Breakage Amounts incurred as a result of such prepayment (calculated in accordance with the Series 2008-1 Class A-2 Note Purchase Agreement or the Series 2008-1 Class A-3 Note Purchase Agreement, as applicable).
(vi) AHYDO. On the first Payment Date occurring after the fifth anniversary of the Series 2008-1 Closing Date and on each subsequent Payment Date (or, if earlier, before the close of any ‘‘accrual period’’ (as defined in Section 1272(a)(5) of the Code) ending five years from the Series 2008-1 Closing Date), if any Series 2008-1 Class B-1 Notes are Outstanding, the Co-Issuers shall be required to redeem a portion of the Series 2008-1 Class B-1 Notes (each such redemption, an “AHYDO Prepayment”) to the extent required to prevent such Notes from being treated as an ‘‘applicable high yield discount obligation’’ within the meaning of Section 163(i)(1) of the Code and such that each such Note shall be treated as not having ‘‘significant original issue discount’’ within the meaning of Section 163(i)(2) of the Code. This provision shall be interpreted in a manner consistent with the position that none of the Series 2008-1 Class B-1 Notes will be an “applicable high yield discount obligation” and that each Series 2008-1 Class B-1 Note will be treated as not having “significant original issue discount” as such terms are defined under the Code. Any such AHYDO Prepayment will be paid solely from funds in the Surplus Account or otherwise payable pursuant to Section 5.13 of the Base Indenture to the Surplus Account.
(vii) Early Amortization. On any Payment Date following the occurrence of an Early Amortization Event, any amounts (x) allocated to the Senior Note Principal Payments Account or to the Subordinated Note Principal Payments Account, as applicable, pursuant to clause twelfth and clause sixteenth, respectively, of the Priority of Payments, or (y) on deposit in the Cash Trap Reserve Account, shall, in accordance with Sections 5.13 and 5.14 of the Base Indenture, be used to prepay principal on the applicable Classes of Series 2008-1 Notes (and of any other applicable Series of Notes) in the order of priority described in Section 6.1 of the Base Indenture on the related Payment Date.
(d) Series 2008-1 Note Make Whole Premium. In connection with (i) any mandatory prepayment of any Class of Series 2008-1 Notes pursuant to Sections 3.8(c)(i) through 3.8(c)(v), or (ii) any optional prepayment of the Series 2008-1 Class A-1 Notes and the Series 2008-1 Class B-1 Notes pursuant to Section 3.8(e), the Co-Issuers shall pay the applicable Series 2008-1 Note Make Whole Premium related to the applicable Series 2008-1 Prepayment Amount; provided that no such Series 2008-1 Note Make Whole Premium shall be payable in connection with any payment that occurs (A) on or after the Payment Date occurring immediately prior to the Series 2008-1 Scheduled Maturity Date or (B) after an Early Amortization Period commences. The Series 2008-1 Note Make Whole Premium is not guaranteed by any Person.
(e) Optional Prepayment of Series 2008-1 Class A-1 Notes and Class B-1 Notes. Subject to Sections 3.8(d) and 3.8(f), the Co-Issuers shall have the option to prepay the Series 2008-1 Class A-1 Notes and/or the Series 2008-1 Class B-1 Notes in whole but not in part on the applicable Series 2008-1 Prepayment Date specified in the applicable Prepayment Notices, at a price equal to the unpaid Series 2008-1 Class A-1
Outstanding Principal Amount or the unpaid Series 2008-1 Class B-1 Outstanding Principal Amount being prepaid, as applicable, plus accrued and unpaid interest thereon through such Series 2008-1 Prepayment Date together with any applicable Series 2008-1 Note Make Whole Premium, to the extent required to be paid in connection therewith as provided herein plus all other accrued and unpaid amounts owing to the applicable Noteholders; provided that no such optional prepayment of the Series 2008-1 Class B-1 Notes shall be made at any time following the Series 2008-1 Adjusted Repayment Date unless all Senior Notes have been paid in full and all Series 2008-1 Class A-2 Commitments and Series 2008-1 Class A-3 Commitments have been terminated.
(f) Notices of Series 2008-1 Prepayments. The Co-Issuers shall give prior written notice (each, a “Prepayment Notice”) at least ten (10) Business Days but not more than twenty (20) Business Days prior to any prepayment pursuant to Section 3.8(c)(vi) and Section 3.8(e), or at least five (5) Business Days prior to any prepayment pursuant to Section 3.8(c)(i), to each Series 2008-1 Noteholder affected by such Series 2008-1 Prepayment (or to the Trustee or Administrative Agent for delivery to such Series 2008-1 Noteholders), each of the Rating Agencies and the Trustee. In connection with any such Prepayment Notice, the Co-Issuers shall provide a written report to the Trustee directing the Trustee to distribute such prepayment amounts in accordance with the applicable provisions of Section 3.8(h). With respect to each such prepayment, the related Prepayment Notice shall, in each case, specify (A) the date on which such prepayment will be made, which in all cases shall be a Business Day and, in the case of a mandatory prepayment upon a Change of Control, shall be no more than ten (10) Business Days after the occurrence of such Change of Control, and, in the case of any prepayment pursuant to Section 3.8(c)(vi) or Section 3.8(e), shall be the next Payment Date following the related Prepayment Notice, (B) the aggregate principal amount of the applicable Class of Notes to be prepaid on such date, and (C) the date on which the applicable Series 2008-1 Note Make Whole Premium, if any, to be paid in connection therewith will be calculated, which calculation date shall be no earlier than the fifth Business Day before the prepayment date set forth in such Prepayment Notice (the “Series 2008-1 Note Make Whole Premium Calculation Date”). The Co-Issuers shall have the option, by written notice to the Trustee, the Rating Agencies and the affected Noteholders, to withdraw, or amend the date on which such prepayment will be made, as set forth in, (x) any Prepayment Notice relating to any prepayment pursuant to Section 3.8(c)(vi) or Section 3.8(e) at any time up to the fifth Business Day before the prepayment date set forth in such Prepayment Notice and (y) subject to the requirements of the preceding sentence, any Prepayment Notice relating to mandatory prepayment upon a Change of Control at any time up to the earlier of (I) the occurrence of such event and (II) the fifth Business Day before the prepayment date set forth in such Prepayment Notice; provided that in no event shall any prepayment date be amended to a date earlier than the fifth Business Day after such amended notice is given. Any Prepayment Notice shall become irrevocable on the day on which it can no longer be withdrawn in accordance with the preceding sentence.
(g) Series 2008-1 Prepayments. On any date on which a payment of principal of the Series 2008-1 Notes will be made prior to (x) the Payment Date occurring immediately before the Series 2008-1 Scheduled Maturity Date or (y) the commencement
of an Early Amortization Period (each such date, a “Series 2008-1 Prepayment Date”), including, without limitation, with respect to any prepayment of any such Notes pursuant to Sections 3.8(c)(i) through 3.8(c)(v) and Section 3.8(e) (each, a “Series 2008-1 Prepayment”), (i) the aggregate principal amount of such Notes to be prepaid on such date (such amount, together with all accrued and unpaid interest thereon to such date, a “Series 2008-1 Prepayment Amount”) and (ii) the applicable Series 2008-1 Note Make Whole Premium, if any, the associated Series 2008-1 Class A-2 Breakage Amounts, if any, and the associated Series 2008-1 Class A-3 Breakage Amounts, if any, shall be due and payable. The Co-Issuers shall pay the Series 2008-1 Prepayment Amount together with the applicable Series 2008-1 Note Make Whole Premium, if any, the associated Series 2008-1 Class A-2 Breakage Amounts, if any, and the associated Series 2008-1 Class A-3 Breakage Amounts, if any, with respect to such Series 2008-1 Prepayment Amount, to the applicable Noteholders entitled thereto on or prior to the related Series 2008-1 Prepayment Date, which amounts shall be distributed in accordance with Section 3.8(h) of this Series 2008-1 Supplement. In the event of any Series 2008-1 Prepayment in whole, all Series 2008-1 Class A-2 Commitments and Series 2008-1 Class A-3 Commitments shall be terminated.
(h) Series 2008-1 Prepayment Distributions.
(i) On the Series 2008-1 Prepayment Date for each Series 2008-1 Prepayment to be made pursuant to this Section 3.8 in respect of the Series 2008-1 Class A-1 Notes, the Trustee shall, in accordance with Section 6.1 of the Base Indenture, wire transfer to the Series 2008-1 Class A-1 Noteholders of record on the preceding Prepayment Record Date on a pro rata basis, based on their respective portion of the Series 2008-1 Class A-1 Outstanding Principal Amount, the amounts allocated to the Series 2008-1 Class A-1 Noteholders pursuant to this Section 3.8 and Sections 5.13 and 5.14 of the Base Indenture, if any, in order to repay the applicable portion of the Series 2008-1 Class A-1 Outstanding Principal Amount and pay all accrued and unpaid interest thereon up to such Series 2008-1 Prepayment Date and any Series 2008-1 Class A-1 Note Make Whole Premium due to the Series 2008-1 Class A-1 Noteholders, if any, payable on such date.
(ii) On the Series 2008-1 Prepayment Date for each Series 2008-1 Prepayment to be made pursuant to this Section 3.8 in respect of the Series 2008-1 Class A-2 Notes, the Trustee shall, in accordance with Section 6.1 of the Base Indenture, wire transfer to the Series 2008-1 Class A-2 Noteholders of record on the preceding Prepayment Record Date on a pro rata basis, based on their respective portion of the Series 2008-1 Class A-2 Outstanding Principal Amount, the amounts allocated to the Series 2008-1 Class A-2 Noteholders pursuant to this Section 3.8 and Sections 5.13 and 5.14 of the Base Indenture, if any, in order to repay the applicable portion of the Series 2008-1 Class A-2 Outstanding Principal Amount and pay all accrued and unpaid interest
thereon up to such Series 2008-1 Prepayment Date and any Series 2008-1 Class A-2 Breakage Amounts incurred as a result of such payment.
(iii) On the Series 2008-1 Prepayment Date for each Series 2008-1 Prepayment to be made pursuant to this Section 3.8 in respect of the Series 2008-1 Class A-3 Notes, the Trustee shall, in accordance with Section 6.1 of the Base Indenture, wire transfer to the Series 2008-1 Class A-3 Noteholders of record on the preceding Prepayment Record Date on a pro rata basis, based on their respective portion of the Series 2008-1 Class A-3 Outstanding Principal Amount, the amounts allocated to the Series 2008-1 Class A-3 Noteholders pursuant to this Section 3.8 and Sections 5.13 and 5.14 of the Base Indenture, if any, in order to repay the applicable portion of the Series 2008-1 Class A-3 Outstanding Principal Amount and pay all accrued and unpaid interest thereon up to such Series 2008-1 Prepayment Date and any Series 2008-1 Class A-2 Breakage Amounts incurred as a result of such payment.
(iv) On the Series 2008-1 Prepayment Date for each Series 2008-1 Prepayment to be made pursuant to this Section 3.8 in respect of the Series 2008-1 Class B-1 Notes, the Trustee shall, in accordance with Section 6.1 of the Base Indenture, wire transfer to the Series 2008-1 Class B-1 Noteholders of record on the preceding Prepayment Record Date on a pro rata basis, based on their respective portion of the Series 2008-1 Class B-1 Outstanding Principal Amount, the amounts allocated to the Series 2008-1 Class B-1 Noteholders pursuant to this Section 3.8 and Sections 5.13 and 5.14 of the Base Indenture, if any, in order to repay the applicable portion of the Series 2008-1 Class B-1 Outstanding Principal Amount and pay all accrued and unpaid interest thereon up to such Series 2008-1 Prepayment Date and any Series 2008-1 Class B-1 Note Make Whole Premium due to the Series 2008-1 Class B-1 Noteholders, if any, payable on such date.
(i) Series 2008-1 Notices of Series 2008-1 Final Payment. The Co-Issuers shall notify the Trustee and each of the Rating Agencies on or before the Record Date preceding any Payment Date that will be the Series 2008-1 Final Payment Date; provided, however, that with respect to any Series 2008-1 Final Payment that is made in connection with any mandatory or optional prepayment in full, the Co-Issuers shall not be obligated to provide any additional notice to the Trustee or the Rating Agencies of such Series 2008-1 Final Payment beyond the notice required to be given in connection with such prepayment pursuant to Section 3.8(f). In addition, the Trustee shall provide any written notice required under this Section 3.8(i) to each Person in whose name a Series 2008-1 Note is registered at the close of business on the Record Date with respect to the Payment Date that will be the Series 2008-1 Final Payment Date. Such written notice to be sent to the Series 2008-1 Noteholders shall be made at the expense of the Co-Issuers and shall be mailed by the Trustee within five (5) Business Days of receipt of notice from the Co-Issuers indicating that the Series 2008-1 Final Payment will be made and shall specify that such Series 2008-1 Final Payment will be payable only upon presentation
and surrender of the Series 2008-1 Notes and shall specify the place where the Series 2008-1 Notes may be presented and surrendered for such Series 2008-1 Final Payment.
ARTICLE IV
FORM OF SERIES 2008-1 NOTES
(a) Restricted 144A Class A-1 Global Notes. The Series 2008-1 Class A-1 Notes offered and sold in their initial distribution in reliance upon Rule 144A will be issued in the form of one or more global notes in fully registered form, without coupons, substantially in the form set forth in Exhibit A-1-1 hereto, registered in the name of Cede, as nominee of DTC, and deposited with the Trustee, as custodian for DTC (collectively, for purposes of this Section 4.1 and Section 4.5, the “Restricted Rule 144A Class A-1 Global Notes”). The aggregate initial principal amount of the Restricted 144A Class A-1 Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, in connection with a corresponding decrease or increase in the aggregate initial principal amount of the corresponding Class of the Restricted Regulation S Class A-1 Global Notes or the Unrestricted Class A-1 Global Notes, as hereinafter provided.
(b) Restricted Regulation S Class A-1 Global Notes. Any Series 2008-1 Class A-1 Notes offered and sold on the Series 2008-1 Closing Date in reliance upon Regulation S will be issued in the form of one or more global notes in fully registered form, without coupons, substantially in the form set forth in Exhibit A-1-2 hereto, registered in the name of Cede, as nominee of DTC, and deposited with the Trustee, as custodian for DTC, for credit to the respective accounts at DTC of the designated agents holding on behalf of Euroclear or Clearstream (collectively, for purposes of this Section 4.1 and Section 4.5, the “Restricted Regulation S Class A-1 Global Notes,” and together with the Restricted Rule 144A Class A-1 Global Notes, the “Restricted Class A-1 Global Notes”). Until such time as the Distribution Compliance Period shall have terminated with respect to the Restricted Regulation S Class A-1 Global Notes, interests in such Restricted Regulation S Class A-1 Global Notes may be held only through Clearing Agency Participants acting for and on behalf of Euroclear and Clearstream. After such time as the Distribution Compliance Period shall have terminated with respect to the Restricted Regulation S Class A-1 Global Notes, interests in such Restricted Regulation S Class A-1 Global Notes may be held through Clearing Agency Participants acting for and on behalf of DTC in addition to Euroclear and Clearstream. The aggregate principal amount of the Restricted Regulation S Class A-1 Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, in connection with a corresponding decrease or increase of aggregate principal amount of the corresponding Class of Restricted Rule 144A Class A-1 Global Notes or Unrestricted Class A-1 Global Notes, as hereinafter provided.
(c) Unrestricted Class A-1 Global Note. Beneficial interests in the Restricted 144A Class A-1 Global Notes may be exchanged for beneficial interests in one or more global notes that do not bear the legend set forth in Section 4.5(h) (the “Unrestricted Class A-1 Global Notes,” and together with the Restricted Class A-1 Global Notes, the “Series 2008-1 Class A-1 Global Notes”) as provided in Section 4.5(d). Beneficial interests in the Restricted Regulation S Class A-1 Global Notes may be
exchanged for beneficial interests in one or more Unrestricted Class A-1 Global Notes as provided in Section 4.5(g).
(d) Definitive Notes. The Class A-1 Series 2008-1 Global Notes shall be exchangeable in their entirety for one or more definitive notes in registered form, without interest coupons (collectively, for purposes of this Section 4.1 and Section 4.5, the “Definitive Notes”) pursuant to Section 2.13 of the Base Indenture and this Section 4.1(d) in accordance with their terms and, upon complete exchange thereof, such Series 2008-1 Class A-1 Global Notes shall be surrendered for cancellation to the Trustee at the applicable Corporate Trust Office.
(b) The Series 2008-1 Class A-2 Notes may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Authorized Officers executing such Series 2008-1 Class A-2 Notes, as evidenced by their execution of the Series 2008-1 Class A-2 Notes. The Series 2008-1 Class A-2 Notes may be produced in any manner, all as determined by the Authorized Officers executing such Series 2008-1 Class A-2 Notes, as evidenced by their execution of such Series 2008-1 Class A-2 Notes. The initial sale of the Series 2008-1 Class A-2 Notes shall be limited to Persons who have executed the Series 2008-1 Class A-2 Note Purchase Agreement. The Series 2008-1 Class A-2 Notes may be resold only to Persons who are QPs in compliance with the terms of the Series 2008-1 Class A-2 Note Purchase Agreement.
(b) The Series 2008-1 Class A-3 Notes may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Authorized Officers executing such Series 2008-1 Class A-3 Notes, as evidenced by their execution of the Series 2008-1 Class A-3 Notes. The Series 2008-1 Class A-3 Notes may be produced in any manner, all as determined by the Authorized Officers executing such Series 2008-1 Class A-3 Notes, as evidenced by their execution of such Series 2008-1 Class A-3 Notes. The initial sale of the Series 2008-1 Class A-3 Notes shall be limited to Persons who have executed the Series 2008-1 Class A-3 Note Purchase Agreement. The Series 2008-1 Class A-3 Notes may be resold only to Persons who are QPs in compliance with the terms of the Series 2008-1 Class A-3 Note Purchase Agreement.
(a) Restricted Rule 144A Class B-1 Global Notes. The Series 2008-1 Class B-1 Notes offered and sold in their initial distribution in reliance upon Rule 144A will be issued in the form of one or more global notes in fully registered form, without
coupons, substantially in the form set forth in Exhibit B-1-1 hereto, registered in the name of Cede, as nominee of DTC, and deposited with the Trustee, as custodian for DTC (collectively, for purposes of this Section 4.4 and Section 4.8, the “Restricted Rule 144A Class B-1 Global Notes”). The aggregate initial principal amount of the Restricted Rule 144A Class B-1 Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, in connection with a corresponding decrease or increase in the aggregate initial principal amount of the corresponding Class of Restricted Regulation S Class B-1 Global Notes or the Unrestricted Class B-1 Global Notes, as hereinafter provided.
(b) Restricted Regulation S Class B-1 Global Notes. Any Series 2008-1 Class B-1 Notes offered and sold on the Series 2008-1 Closing Date in reliance upon Regulation S will be issued in the form of one or more global notes in fully registered form, without coupons, substantially in the form set forth in Exhibit B-1-2 hereto, registered in the name of Cede, as nominee of DTC, and deposited with the Trustee, as custodian for DTC, for credit to the respective accounts at DTC of the designated agents holding on behalf of Euroclear or Clearstream (collectively, for purposes of Section 4.4 and Section 4.8, the “Restricted Regulation S Class B-1 Global Notes,” and together with the Restricted 144A Class B-1 Global Notes, the “Restricted Class B-1 Global Notes.”). Until such time as the Distribution Compliance Period shall have terminated with respect to the Restricted Regulation S Class B-1 Global Notes, interests in the Restricted Regulation S Class B-1 Global Notes may be held only through Clearing Agency Participants acting for and on behalf of Euroclear and Clearstream. After such time as the Distribution Compliance Period shall have terminated with respect to the Restricted Regulation S Class B-1 Global Notes, interests in the Restricted Regulation S Class B-1 Global Notes may be held through Clearing Agency Participants acting for and on behalf of DTC in addition to Euroclear and Clearstream. The aggregate principal amount of the Restricted Regulation S Class B-1 Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, in connection with a corresponding decrease or increase of aggregate principal amount of the corresponding Class of the Restricted Rule 144A Class A-1 Global Notes or Unrestricted Class B-1 Global Notes, as hereinafter provided.
(c) Unrestricted Class B-1 Global Note. Beneficial interests in the Restricted 144A Class B-1 Global Notes may be exchanged for beneficial interests in one or more global notes that do not bear the legend set forth in Section 4.8(h) (the “Unrestricted Class B-1 Global Notes,” and together with the Restricted Class B-1 Global Notes, the “Series 2008-1 Class B-1 Global Notes”) as provided in Section 4.8(d). Beneficial interests in the Restricted Regulation S Class B-1 Global Notes may be exchanged for beneficial interests in one or more Unrestricted Class B-1 Global Notes as provided in Section 4.8(g).
(d) Definitive Class B-1 Notes. The Series 2008-1 Class B-1 Global Notes shall be exchangeable in their entirety for one or more definitive notes in registered form, without interest coupons (collectively, for purposes of this Section 4.4 and Section 4.8, the “Definitive Notes”) pursuant to Section 2.13(c) of the Base Indenture and this Section 4.4(d) in accordance with their terms and, upon complete exchange thereof,
such Series 2008-1 Class B-1 Global Notes shall be surrendered for cancellation to the Trustee at the applicable Corporate Trust Office.
(a) A Series 2008-1 Class A-1 Global Note may not be transferred, in whole or in part, to any Person other than DTC or a nominee thereof, or to a successor Depository or to a nominee of a successor Depository, and no such transfer to any such other Person may be registered; provided, however, that this Section 4.5(a) shall not prohibit any transfer of a Series 2008-1 Class A-1 Note that is issued in exchange for a Series 2008-1 Class A-1 Global Note in accordance with Section 2.8 or Section 2.13 of the Base Indenture and shall not prohibit any transfer of a beneficial interest in a Series 2008-1 Class A-1 Global Note effected in accordance with the other provisions of this Section 4.5.
(b) The transfer by a Series 2008-1 Class A-1 Noteholder holding a beneficial interest in a Restricted Rule 144A Class A-1 Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in such Restricted Rule 144A Class A-1 Global Note shall be made only upon the representation of the transferee that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB, a QP, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Co-Issuers as such transferee has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A.
(c) If a Series 2008-1 Class A-1 Noteholder holding a beneficial interest in a Restricted 144A Class A-1 Global Note wishes at any time to exchange its interest in such Restricted 144A Class A-1 Global Note for an interest in the Restricted Regulation S Class A-1 Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Regulation S Class A-1 Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.5(c); provided that the remaining beneficial interest in such Restricted 144A Class A-1 Global Note held by such Series 2008-1 Class A-1 Noteholder shall either equal zero or meet the authorized minimum denominations. Upon receipt by the Trustee, as Registrar, at the applicable Corporate Trust Office, and the Co-Issuers of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Trustee to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Restricted Regulation S Class A-1 Global Note, in a principal amount equal to that of the beneficial interest in such Restricted 144A Class A-1 Global Note to be so exchanged or transferred, but not less than the authorized minimum denominations, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such
beneficial interest and (iii) a certificate in substantially the form set forth in Exhibit C-1 hereto given by the Series 2008-1 Class A-1 Noteholder holding such beneficial interest in such Restricted 144A Class A-1 Global Note, the Trustee, as Registrar, shall instruct DTC to reduce the principal amount of the Restricted 144A Class A-1 Global Note, and to increase the principal amount of the Restricted Regulation S Class A-1 Global Note, by the principal amount of the beneficial interest in such Restricted 144A Class A-1 Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Restricted Regulation S Class A-1 Global Note having a principal amount equal to the amount by which the principal amount of such Restricted 144A Class A-1 Global Note was reduced upon such exchange or transfer.
(d) If a Series 2008-1 Class A-1 Noteholder holding a beneficial interest in a Restricted 144A Class A-1 Global Note wishes at any time to exchange its interest in such Restricted 144A Class A-1 Global Note for an interest in the Unrestricted Class A-1 Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Unrestricted Class A-1 Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.5(d); provided that the remaining beneficial interest in such Restricted 144A Class A-1 Global Note held by such Series 2008-1 Class A-1 Noteholder shall either equal zero or meet the authorized minimum denominations. Upon receipt by the Trustee, as Registrar, at the applicable Corporate Trust Office, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Trustee to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Unrestricted Class A-1 Global Note in a principal amount equal to that of the beneficial interest in such Restricted 144A Class A-1 Global Note to be so exchanged or transferred, but not less than the authorized minimum denominations, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form of Exhibit C-2 hereto given by the Series 2008-1 Class A-1 Noteholder holding such beneficial interest in such Restricted 144A Class A-1 Global Note, the Trustee, as Registrar, shall instruct DTC to reduce the principal amount of such Restricted 144A Class A-1 Global Note, and to increase the principal amount of the Unrestricted Class A-1 Global Note, by the principal amount of the beneficial interest in such Restricted 144A Class A-1 Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant) a beneficial interest in the Unrestricted Class A-1 Global Note having a principal amount equal to the amount by which the principal amount of such Restricted 144A Class A-1 Global Note was reduced upon such exchange or transfer. If the Trustee so requests or if the Applicable Procedures so require, the transferor shall deliver an Opinion of Counsel in form reasonably acceptable to the Trustee to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained in this
Series 2008-1 Supplement and described in Section 4.5(h) are no longer required in order to maintain compliance with the Securities Act.
(e) The transfer by a Series 2008 1 Class A-1 Noteholder holding a beneficial interest in a Restricted Regulation S Class A-1 Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in such Restricted Regulation S Class A-1 Global Note shall be made only upon the representation of the transferee that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QP that is neither a “U.S. Person” as defined in Regulation S nor a “U.S. Resident” for purposes of the Investment Company Act and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Regulation S.
(f) If a Series 2008-1 Class A-1 Noteholder holding a beneficial interest in a Restricted Regulation S Class A-1 Global Note wishes at any time to exchange its interest in such Restricted Regulation S Class A-1 Global Note for an interest in the Restricted 144A Class A-1 Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted 144A Class A-1 Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.5(f); provided that the remaining beneficial interest in such Restricted Regulation S Class A-1 Global Note held by such Series 2008-1 Class A-1 Noteholder shall either equal zero or meet the authorized minimum denominations. Upon receipt by the Trustee, as Registrar, at the applicable Corporate Trust Office, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Trustee to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Restricted 144A Class A-1 Global Note in a principal amount equal to that of the beneficial interest in such Restricted Regulation S Class A-1 Global Note to be so exchanged or transferred, but not less than the authorized minimum denominations, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form set forth in Exhibit C-3 hereto given by such Series 2008-1 Class A-1 Noteholder holding such beneficial interest in such Restricted Regulation S Class A-1 Global Note, Euroclear or Clearstream or the Trustee, as Registrar, shall instruct DTC to reduce the principal amount of such Restricted Regulation S Class A-1 Global Note and to increase the principal amount of the Restricted 144A Class A-1 Global Note, by the principal amount of the beneficial interest in such Restricted Regulation S Class A-1 Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for DTC) a beneficial interest in the Restricted 144A Class A-1 Global Note having a principal amount equal to the amount by which the principal amount of such Restricted Regulation S Class A-1 Global Note was reduced upon such exchange or transfer.
(g) If a Series 2008-1 Class A-1 Noteholder holding a beneficial interest in a Restricted Regulation S Class A-1 Global Note wishes at any time to exchange its interest in such Restricted Regulation S Class A-1 Global Note for an interest in the Unrestricted Class A-1 Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Unrestricted Class A-1 Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.5(g); provided that the remaining beneficial interest in such Restricted Regulation S Class A-1 Global Note held by such Series 2008-1 Class A-1 Noteholder shall either equal zero or meet the authorized minimum denominations. Upon receipt by the Trustee, as Registrar, at the applicable Corporate Trust Office, and the Co-Issuers of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Trustee to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Unrestricted Class A-1 Global Note in a principal amount equal to that of the beneficial interest in such Restricted Regulation S Class A-1 Global Note to be so exchanged or transferred, but not less than the authorized minimum denominations, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form of Exhibit C-2 hereto given by the Series 2008-1 Class A-1 Noteholder holding such beneficial interest in such Restricted Regulation S Class A-1 Global Note, Euroclear, Clearstream or the Trustee, as Registrar shall instruct DTC to reduce the principal amount of such Restricted Regulation S Class A-1 Global Note, and to increase the principal amount of the Unrestricted Class A-1 Global Note, by the principal amount of the beneficial interest in such Restricted Regulation S Class A-1 Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for DTC) a beneficial interest in the Unrestricted Class A-1 Global Note having a principal amount equal to the amount by which the principal amount of such Restricted Regulation S Class A-1 Global Note was reduced upon such exchange or transfer. If the Trustee so requests or if the Applicable Procedures so require, the transferor shall deliver an Opinion of Counsel in form reasonably acceptable to the Trustee to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained in this Series 2008-1 Supplement and described in Section 4.5(h) are no longer required in order to maintain compliance with the Securities Act.
(h) The Restricted Class A-1 Global Notes shall bear the following legend:
(i) The Restricted Regulation S Class A-1 Global Notes shall also bear the following legend:
(j) The Series 2008-1 Class A-1 Global Notes issued in connection with the Series 2008-1 Class A-1 Notes shall bear the following legend:
(k) The required legends set forth above shall not be removed from the applicable Series 2008-1 Class A-1 Notes except as provided herein. The legend required for a Restricted Class A-1 Global Note may be removed from such Restricted Class A-1 Global Note if there is delivered to the Co-Issuers and the Trustee such satisfactory evidence, which may include an Opinion of Counsel as may be reasonably required by the Co-Issuers that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Restricted Class A-1 Global Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee at the direction of the Master Issuer, on behalf of the Co-Issuers, shall authenticate and deliver in exchange for such Restricted Class A-1 Global Note a an Unrestricted Class A-1 Global Note or Unrestricted Class A-1 Global Notes having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Restricted Class A-1 Global Note has been removed from a Series 2008-1 Class A-1 Note as provided above, no other Series 2008-1 Class A-1 Note issued in exchange for all or any part of such Series 2008-1 Class A-1 Note shall bear such legend, unless the Co-Issuers have reasonable cause to believe that such other Series 2008-1 Class A-1 Note is a “restricted security” within the meaning of Rule 144 under the Securities Act and instructs the Trustee to cause a legend to appear thereon.
(l) The Co-Issuers have the right hereunder to compel any non-permitted holder of an interest in the Series 2008-1 Class A-1 Notes to sell its interest in such Series 2008-1 Class A-1 Notes or may sell such interest in such Series 2008-1 Class A-1 Notes on behalf of such owner. In connection therewith, (a) if the Holder acquired its interest in the Series 2008-1 Class A-1 Notes in the form of an interest in a Global Note,
the Co-Issuers are permitted hereunder to require that the Holder of (i) any interest in a Restricted 144A Global Note held by a Holder that is a U.S. Person or a Holder who was sold such interest in the United States who is determined not to have been both a QIB and a QP at the time of acquisition of such interest in a Restricted 144A Global Note or (ii) any interest in a Restricted Regulation S Global Note held by a Holder that is a U.S. Person or a Person who was sold such interest in the United States, in each case at the time of the acquisition of such interest, sell such interest to a transferee that is permitted hereunder and, if the Holder does not comply with such demand within 30 days thereof, the Co-Issuers, acting at the direction of the Master Manager, may sell such Holder’s interest in the applicable Global Note on such terms as the Co-Issuers may choose.
(a) Subject to the terms of the Indenture and the Series 2008-1 Class A-2 Note Purchase Agreement, the Holder of any Series 2008-1 Class A-2 Note may transfer the same in whole or in part, in an amount equivalent to an authorized denomination, by surrendering such Series 2008-1 Class A-2 Note at the applicable Corporate Trust Office, with the form of transfer endorsed on it duly completed and executed by, or accompanied by a written instrument of transfer in form satisfactory to the Co-Issuers and the Registrar by, the Holder thereof or his attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, and accompanied by a certificate substantially in the form of Exhibit C-4 hereto; provided that if the Holder of any Series 2008-1 Class A-2 Note transfers, in whole or in part, its interest in any Series 2008-1 Class A-2 Note pursuant to (i) an Assignment and Assumption Agreement substantially in the form of Exhibit B to the Series 2008-1 Class A-2 Note Purchase Agreement or (ii) an Investor Group Supplement substantially in the form of Exhibit C to the Series 2008-1 Class A-2 Note Purchase Agreement, then such Series 2008-1 Class A-2 Noteholder will not be required to submit a certificate substantially in the form of Exhibit C-4 hereto upon transfer of its interest in such Series 2008-1 Class A-2 Note. In exchange for any Series 2008-1 Class A-2 Note properly presented for transfer, the Co-Issuers shall execute and the Trustee shall promptly authenticate and deliver or cause to be authenticated and delivered in compliance with applicable law, to the transferee at such office, or send by mail (at the risk of the transferee) to such address as the transferee may request, Series 2008-1 Class A-2 Notes for the same aggregate principal amount as was transferred. In the case of the transfer of any Series 2008-1 Class A-2 Note in part, the Co-Issuers shall execute and the Trustee shall promptly authenticate and deliver or cause to be authenticated and delivered to the transferor at such office, or send by mail (at the risk of the transferor) to such address as the transferor may request, Series 2008-1 Class A-2 Notes for the aggregate principal amount that was not transferred. No transfer of any Series 2008-1 Class A-2 Note shall be made unless the request for such transfer is made by the Series 2008-1 Class A-2 Noteholder at such office. Neither the Co-Issuers nor the Trustee shall be liable for any delay in delivery of transfer instructions and each may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of transferred
Series 2008-1 Class A-2 Notes, the Trustee shall recognize the holders of such Series 2008-1 Class A-2 Note as Series 2008-1 Class A-2 Noteholders.
(b) Each Series 2008-1 Class A-2 Note shall bear the following legend:
(a) Subject to the terms of the Indenture and the Series 2008-1 Class A-3 Note Purchase Agreement, the Holder of any Series 2008-1 Class A-3 Note may transfer the same in whole or in part, in an amount equivalent to an authorized denomination, by surrendering such Series 2008-1 Class A-3 Note at the applicable Corporate Trust Office, with the form of transfer endorsed on it duly completed and executed by, or accompanied by a written instrument of transfer in form satisfactory to the Co-Issuers and the Registrar by, the Holder thereof or his attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the STAMP or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, and accompanied by a certificate substantially in the form of Exhibit C-4 hereto; provided that if the Holder of any Series 2008-1 Class A-3 Note transfers, in whole or in part, its interest in any Series 2008-1 Class A-3 Note pursuant to (i) an Assignment and Assumption Agreement substantially in the form of Exhibit B to the Series 2008-1 Class A-3 Note Purchase Agreement or (ii) an Investor Group Supplement substantially in the form of Exhibit C to the Series 2008-1 Class A-3 Note Purchase Agreement, then such Series 2008-1 Class A-3 Noteholder will not be required to submit a certificate substantially in the form of Exhibit C-4 hereto upon transfer of its interest in such Series 2008-1 Class A-3 Note. In exchange for any Series 2008-1 Class A-3 Note properly presented for transfer, the
Co-Issuers shall execute and the Trustee shall promptly authenticate and deliver or cause to be authenticated and delivered in compliance with applicable law, to the transferee at such office, or send by mail (at the risk of the transferee) to such address as the transferee may request, Series 2008-1 Class A-3 Notes for the same aggregate principal amount as was transferred. In the case of the transfer of any Series 2008-1 Class A-3 Note in part, the Co-Issuers shall execute and the Trustee shall promptly authenticate and deliver or cause to be authenticated and delivered to the transferor at such office, or send by mail (at the risk of the transferor) to such address as the transferor may request, Series 2008-1 Class A-3 Notes for the aggregate principal amount that was not transferred. No transfer of any Series 2008-1 Class A-3 Note shall be made unless the request for such transfer is made by the Series 2008-1 Class A-3 Noteholder at such office. Neither the Co-Issuers nor the Trustee shall be liable for any delay in delivery of transfer instructions and each may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of transferred Series 2008-1 Class A-3 Notes, the Trustee shall recognize the holders of such Series 2008-1 Class A-3 Note as Series 2008-1 Class A-3 Noteholders.
(b) Each Series 2008-1 Class A-3 Note shall bear the following legend:
(a) A Series 2008-1 Class B-1 Global Note may not be transferred, in whole or in part, to any Person other than DTC or a nominee thereof, or to a successor Depository or to a nominee of a successor Depository, and no such transfer to any such other Person may be registered; provided, however, that this Section 4.8(a) shall not prohibit any transfer of a Series 2008-1 Class B-1 Note that is issued in exchange for a Series 2008-1 Class B-1 Global Note in accordance with Section 2.8 of the Base Indenture and shall not prohibit any transfer of a beneficial interest in a Series 2008-1
Class B-1 Global Note effected in accordance with the other provisions of this Section 4.8.
(b) The transfer by a Series 2008-1 Class B-1 Noteholder holding a beneficial interest in a Restricted Rule 144A Class B-1 Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in such Restricted Rule 144A Class B-1 Global Note shall be made only upon the representation of the transferee that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB, a QP, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Co-Issuers as such transferee has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A.
(c) If a Series 2008-1 Class B-1 Noteholder holding a beneficial interest in a Restricted Rule 144A Class B-1 Global Note wishes at any time to exchange its interest in such Restricted Rule 144A Class B-1 Global Note for an interest in the Restricted Regulation S Class B-1 Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Regulation S Class B-1 Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.8(c). Upon receipt by the Trustee, as Registrar, at the applicable Corporate Trust Office, and the Co-Issuers of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Trustee to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Restricted Regulation S Class B-1 Global Note, in a principal amount equal to that of the beneficial interest in such Restricted Rule 144A Class B-1 Global Note to be so exchanged or transferred, but not less than the authorized minimum denominations, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form set forth in Exhibit C-1 hereto given by the Series 2008-1 Class B-1 Noteholder holding such beneficial interest in such Restricted Rule 144A Class B-1 Global Note, the Trustee, as Registrar, shall instruct DTC to reduce the principal amount of the Restricted Rule 144A Class B-1 Global Note, and to increase the principal amount of the Restricted Regulation S Class B-1 Global Note, by the principal amount of the beneficial interest in such Restricted Rule 144A Class B-1 Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Restricted Regulation S Class B-1 Global Note having a principal amount equal to the amount by which the principal amount of such Restricted Rule 144A Class B-1 Global Note was reduced upon such exchange or transfer.
(d) If a Series 2008-1 Class B-1 Noteholder holding a beneficial interest in a Restricted Rule 144A Class B-1 Global Note wishes at any time to exchange its interest in such Restricted Rule 144A Class B-1 Global Note for an interest in the Unrestricted Class B-1 Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Unrestricted Class B-1 Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.8(d); provided that the remaining beneficial interest in such Restricted Rule 144A Class B-1 Global Note held by such Series 2008-1 Class B-1 Noteholder shall either equal zero or meet the authorized minimum denominations. Upon receipt by the Trustee, as Registrar, at the applicable Corporate Trust Office, and the Co-Issuers of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Trustee to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Unrestricted Class B-1 Global Note in a principal amount equal to that of the beneficial interest in such Restricted Rule 144A Class B-1 Global Note to be so exchanged or transferred, but not less than the authorized minimum denominations, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form of Exhibit C-2 hereto given by the Series 2008-1 Class B-1 Noteholder holding such beneficial interest in such Restricted Rule 144A Class B-1 Global Note, the Trustee, as Registrar, shall instruct DTC to reduce the principal amount of such Restricted Rule 144A Class B-1 Global Note, and to increase the principal amount of the Unrestricted Class B-1 Global Note, by the principal amount of the beneficial interest in such Restricted Rule 144A Class B-1 Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant) a beneficial interest in the Unrestricted Class B-1 Global Note having a principal amount equal to the amount by which the principal amount of such Restricted Rule 144A Class B-1 Global Note was reduced upon such exchange or transfer. If the Trustee so requests or if the Applicable Procedures so require, the transferor shall deliver an Opinion of Counsel in form reasonably acceptable to the Trustee to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained in this Series 2008-1 Supplement and described in Section 4.8(h) are no longer required in order to maintain compliance with the Securities Act.
(e) The transfer by a Series 2008 1 Class B-1 Noteholder holding a beneficial interest in a Restricted Regulation S Class B-1 Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in such Restricted Regulation S Class B-1 Global Note shall be made only upon the representation of the transferee that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QP that is neither a “U.S. Person” as defined in Regulation S nor a “U.S. Resident” for purposes of the Investment Company Act and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Regulation S.
(f) If a Series 2008-1 Class B-1 Noteholder holding a beneficial interest in a Restricted Regulation S Class B-1 Global Note wishes at any time to exchange its interest in such Restricted Regulation S Class B-1 Global Note for an interest in the Restricted Rule 144A Class B-1 Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Rule 144A Class B-1 Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.8(f); provided that the remaining beneficial interest in such Restricted Regulation S Class B-1 Global Note held by such Series 2008-1 Class B-1 Noteholder shall either equal zero or meet the authorized minimum denominations. Upon receipt by the Registrar, at the applicable Corporate Trust Office, and the Co-Issuers of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Trustee to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Restricted Rule 144A Class B-1 Global Note in a principal amount equal to that of the beneficial interest in such Restricted Regulation S Class B-1 Global Note to be so exchanged or transferred, but not less than the authorized minimum denominations, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form set forth in Exhibit C-3 hereto given by such Series 2008-1 Class B-1 Noteholder holding such beneficial interest in such Restricted Regulation S Class B-1 Global Note, Euroclear or Clearstream or the Trustee, as Registrar, shall instruct DTC to reduce the principal amount of such Restricted Regulation S Class B-1 Global Note and to increase the principal amount of the Restricted Rule 144A Class B-1 Global Note, by the principal amount of the beneficial interest in such Restricted Regulation S Class B-1 Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for DTC) a beneficial interest in the Restricted Rule 144A Class B-1 Global Note having a principal amount equal to the amount by which the principal amount of such Restricted Regulation S Class B-1 Global Note was reduced upon such exchange or transfer.
(g) If a Series 2008-1 Class B-1 Noteholder holding a beneficial interest in a Restricted Regulation S Class B-1 Global Note wishes at any time to exchange its interest in such Restricted Regulation S Class B-1 Global Note for an interest in the Unrestricted Class B-1 Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Unrestricted Class B-1 Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.8(g); provided that the remaining beneficial interest in such Restricted Regulation S Class B-1 Global Note held by such Series 2008-1 Class B-1 Noteholder shall either equal zero or meet the authorized minimum denominations. Upon receipt by the Trustee, as Registrar, at the applicable Corporate Trust Office, and the Co-Issuers of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Trustee to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Unrestricted Class B-1 Global Note in a
principal amount equal to that of the beneficial interest in such Restricted Regulation S Class B-1 Global Note to be so exchanged or transferred, but not less than the authorized minimum denominations, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form of Exhibit C-2 hereto given by the Series 2008-1 Class B-1 Noteholder holding such beneficial interest in such Restricted Regulation S Class B-1 Global Note, Euroclear, Clearstream or the Trustee, as Registrar shall instruct DTC to reduce the principal amount of such Restricted Regulation S Class B-1 Global Note, and to increase the principal amount of the Unrestricted Class B-1 Global Note, by the principal amount of the beneficial interest in such Restricted Regulation S Class B-1 Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for DTC) a beneficial interest in the Unrestricted Class B-1 Global Note having a principal amount equal to the amount by which the principal amount of such Restricted Regulation S Class B-1 Global Note was reduced upon such exchange or transfer. If the Trustee so requests or if the Applicable Procedures so require, the transferor shall deliver an Opinion of Counsel in form reasonably acceptable to the Trustee to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained in this Series 2008-1 Supplement and described in Section 4.8(h) are no longer required in order to maintain compliance with the Securities Act.
(h) The Restricted Class B-1 Global Notes shall bear the following legend:
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT AND WILL BE VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE INITIAL PURCHASER OR SUBSEQUENT TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE CO-ISSUERS, THE TRUSTEE OR ANY INTERMEDIARY.
(i) The Restricted Regulation S Class B-1 Global Notes shall also bear the following legend:
(j) The Series 2008-1 Class B-1 Global Notes issued in connection with the Series 2008-1 Class B-1 Notes shall bear the following legend:
(k) The required legends set forth above shall not be removed from the applicable Series 2008-1 Class B-1 Notes except as provided herein. The legend required for a Restricted Class B-1 Global Note may be removed from such Restricted Class B-1 Global Note if there is delivered to the Co-Issuers and the Trustee such satisfactory evidence, which may include an Opinion of Counsel as may be reasonably required by the Co-Issuers that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Restricted Class B-1 Global Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee at the direction of the Master Issuer, on behalf of the Co-Issuers, shall authenticate and deliver in exchange for such Restricted Class B-1 Global Note a Series 2008-1 Class B-1 Note or Series 2008-1 Class B-1 Notes having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Series 2008-1 Class B-1 Restricted Global Note has been removed from a Series 2008-1 Class B-1 Note as provided above, no other Series 2008-1 Class B-1 Note issued in exchange for all or any part of such Series 2008-1 Class B-1 Note shall bear such legend, unless the Co-Issuers have reasonable cause to believe that such other Series 2008-1 Class B-1 Note is a “restricted security” within the meaning of Rule 144 under the Securities Act and instructs the Trustee to cause a legend to appear thereon.
(l) The Co-Issuers have the right hereunder to compel any non-permitted holder of an interest in the Series 2008-1 Class B-1 Notes to sell its interest in such Series 2008-1 Class B-1 Notes or may sell such interest in such Series 2008-1 Class B-1 Notes on behalf of such owner. In connection therewith, (a) if the Holder acquired its interest in the Series 2008-1 Class B-1 Notes in the form of an interest in a Global Note, the Co-Issuers are permitted hereunder to require that the Holder of (i) any interest in a Restricted 144A Global Note held by a Holder that is a U.S. Person or a Holder who was sold such interest in the United States who is determined not to have been both a QIB and a QP at the time of acquisition of such interest in a Restricted 144A Global Note or (ii) any interest in a Restricted Regulation S Global Note held by a Holder that is a U.S. Person or a Person who was sold such interest in the United States, in each case at the time of the acquisition of such interest, sell such interest to a transferee that is permitted hereunder and, if the Holder does not comply with such demand within 30 days thereof, the Co-Issuers, acting at the direction of the Master Manager, may sell such Holder’s interest in the applicable Global Note on such terms as the Co-Issuers may choose.
(a) The Co-Issuers shall, upon two (2) Business Days’ prior written notice, cause the Trustee to send, and the Trustee hereby agrees to send on at least an annual basis a notice from the Co-Issuers to DTC in substantially the form of Exhibit E hereto (the “Important Section 3(c)(7) Notice”), with a request that DTC forward each such notice to the relevant DTC participants for further delivery to the Series 2008-1 Note Owners. If DTC notifies the Co-Issuers or the Trustee that it will not forward such
notices, the Co-Issuers will request DTC to deliver to the Co-Issuers a list of all DTC participants holding an interest in the Series 2008-1 Notes and the Trustee and Paying Agent will send the Important Section 3(c)(7) Notice directly to such participants.
(b) The Co-Issuers will take the following steps in connection with the Series 2008-1 Notes:
(i) The Co-Issuers will direct DTC to include the “3c7” marker in the DTC 20-character security descriptor and the 48-character additional descriptor for the Restricted Rule 144A Global Note in order to indicate that sales are limited to QIB/QPs.
(ii) The Co-Issuers will direct DTC to cause each physical DTC delivery order ticket delivered by DTC to purchasers to contain the DTC 20-character security descriptor; and will direct DTC to cause each DTC delivery order ticket delivered by DTC to purchasers in electronic form to contain the “3c7” indicator and a related user manual for participants, which will contain a description of the relevant restrictions.
(iii) The Co-Issuers will instruct DTC to send an Important Section 3(c)(7) Notice to all DTC participants in connection with the initial offering of the Series of Series 2008-1 Notes.
(iv) The Co-Issuers will advise DTC that they are Section 3(c)(7) issuers and will request DTC to include the Restricted Rule 144A Global Note in DTC’s “Reference Directory” of Section 3(c)(7) offerings and provide such participants with an Important Section 3(c)(7) Notice.
(v) The Co-Issuers will from time to time request DTC to deliver to the Co-Issuers a list of all DTC participants holding an interest in the Restricted Rule 144A Global Note and provide such participants with an Important Section 3(c)(7) Notice.
(vi) The Co-Issuers will direct Euroclear to include the “144A/3(c)(7)” marker in the name for the Restricted Rule 144A Global Note included in the Euroclear securities database in order to indicate that sales are limited to QIB/QPs.
(vii) The Co-Issuers will direct Euroclear to cause each daily securities balance report and each daily securities transaction report delivered to Euroclear participants to contain the indicator “144A/3(c)(7)” in the name for the Restricted 144A Global Note.
(viii) The Co-Issuers will direct Euroclear to include a description of the Section 3(c)(7) restrictions for the Restricted 144A Global Note in its New Issues Acceptance Guide.
(ix) The Co-Issuers will instruct Euroclear to send an Important Section 3(c)(7) Notice to all Euroclear participants holding positions in the Restricted Rule 144A Global Note at least once every calendar year, substantially in the form of Exhibit E hereto.
(x) The Co-Issuers will request Euroclear to include a “3(c)(7)” marker in the name of the Restricted Rule 144A Global Note included in the list of securities accepted in the Euroclear securities database made available to Euroclear participants.
(xi) The Co-Issuers will from time to time request Euroclear to deliver to the Co-Issuers a list of all Euroclear participants holding an interest in the Restricted Rule 144A Global Note and at least once every calendar year provide such participants with notification substantially in the form of Exhibit E hereto.
(xii) The Co-Issuers will direct Clearstream to include the “144A/3(c)(7)” marker in the name for the Restricted Rule 144A Global Note included in the Clearstream securities database in order to indicate that sales are limited to QIB/QPs.
(xiii) The Co-Issuers will direct Clearstream to cause each daily portfolio report and each daily settlement report delivered to Clearstream participants to contain the indicator “144A/3(c)(7)” in the name for the Restricted Rule 144A Global Note.
(xiv) The Co-Issuers will direct Clearstream to include a description of the Section 3(c)(7) restrictions in its Customer Handbook.
(xv) The Co-Issuers will instruct Clearstream to send an Important Section 3(c)(7) Notice to all Clearstream participants holding positions in the Restricted Rule 144A Global Note at least once every calendar year, substantially in the form of Exhibit E hereto.
(xvi) The Co-Issuers will from time to time request Clearstream to deliver to the Co-Issuers a list of all Clearstream participants holding an interest in any Restricted Rule 144A Global Note and at least once every calendar year provide such participants with notification substantially in the form of Exhibit E hereto.
(xvii) The Co-Issuers will request Clearstream to include a “3(c)(7)” marker in the name for the Restricted Rule 144A Global Note included in the list of securities accepted in the Clearstream securities’ database made available to Clearstream participants.
(c) The Co-Issuers shall request third-party vendors which provide information on the Series 2008-1 Notes to include on screens maintained by such vendors
appropriate legends regarding Rule 144A and Section 3(c)(7) restrictions. Without limiting the foregoing:
(i) the Co-Issuers will request Bloomberg, L.P. to include the following on each Bloomberg screen containing information about the Series 2008-1 Notes:
(ii) the Co-Issuers will request Reuters Group plc to input the following information in its system with respect to the Series 2008-1 Notes:
(d) The Co-Issuers shall cause the “CUSIP” number obtained for the Series 2008-1 Notes to have an attached “fixed field” that contains “3c7” and “144A” indicators.
(a) With respect to any sale of Series 2008-1 Notes pursuant to Rule 144A:
(i) It understands that the Series 2008-1 Notes have not been recommended by any United States federal or state securities commission or regulatory authority. The foregoing authorities have not confirmed the accuracy or determined the adequacy of any Offering Memorandum. Any representation to the contrary is a criminal offense.
(ii) It (A) is a QIB (who is also a QP), (B) is aware that the sale to it is being made in reliance on Rule 144A, (C) is acquiring such Series 2008-1 Notes for its own account or for the account of a QIB (who is also a QP) over which it exercises sole investment discretion, (D) is not (and any such account is not) a pension, profit-sharing or other retirement trust fund or plan in which the partners, beneficiaries or participants, as applicable, may designate the particular investments to be made, (E) is not a broker dealer of the type described in paragraph (a)(1)(ii) of Rule 144A unless it owns and invests on a discretionary basis not less than U.S. $25,000,000 in securities of issuers that are not affiliated with it, (b) a participant-directed employee plan, such as a 401(k) plan, or any other type of 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, (F) was not formed or capitalized for the specific purpose of investing in the Co-Issuers (except where each beneficial owner is both a QIB and a QP), (G) is not a (w) corporation, (x) partnership, (y) common trust fund or (z) special trust, pension fund or retirement plan in which the shareholders, equity owners, partners, beneficiaries, beneficial owners or participants, as applicable, may designate the particular investments to be made, (H) if formed on or before April 30, 1996, is not an investment company that relies on the exclusion from the definition of “investment company” provided by Section 3(c)(7) of the Investment Company Act (or a foreign investment company under Section 7(d) thereof relying on Section 3(c)(7) with respect to those of its holders that are U.S. Persons), unless, with respect to its treatment as a QP, it has, in the manner required by Section 2(a)(51)(C) of the Investment Company Act and the rules and
regulations thereunder, received the consent of its beneficial owners that acquired their interests on or before April 30, 1996, and (I) is not an entity that, immediately subsequent to its purchase or other acquisition of a beneficial interest in the Series 2008-1 Notes, will have invested more than 40% of its assets in beneficial interests in the Series 2008-1 Notes and/or in other securities of the Co-Issuers (unless all of the beneficial owners of such entity’s securities are QPs).
(iii) It understands that the Series 2008-1 Notes are being offered in a transaction not involving any public offering in the United States within the meaning of the Securities Act, that the Series 2008-1 Notes have not been and will not be registered under the Securities Act and that if in the future it decides to offer, resell, pledge or otherwise transfer any of the Series 2008-1 Notes, such Series 2008-1 Notes may be offered, resold, pledged or otherwise transferred only (i) to QIBs (who are also QPs) pursuant to Rule 144A or (ii) to a QP in an offshore transaction complying with Rule 903 or Rule 904 of Regulation S, and in accordance with the applicable legends.
(iv) It acknowledges that none of the Co-Issuers has been registered under the Investment Company Act.
(v) It acknowledges that none of the Co-Issuers, the Initial Purchaser, the Trustee, NuCO2, their respective Affiliates or any Person representing the Co-Issuers, the Initial Purchaser, the Trustee, NuCO2, or their respective Affiliates has made any representation to it with respect to the Co-Issuers, NuCO2, or their respective Affiliates or the offering or sale of the Series 2008-1 Notes, other than the information contained in the Offering Memorandum and any representations expressly set forth in a written agreement with such parties. None of the Co-Issuers, the Initial Purchaser, the Trustee, NuCO2 or their respective Affiliates is acting as a fiduciary or financial or investment advisor for it and it is not relying (for purposes of making an investment decision) on any written or oral advice or counsel of the Co-Issuers, the Initial Purchaser, the Trustee, NuCO2 or their respective Affiliates, other than the information contained in the Offering Memorandum and any representations expressly set forth in a written agreement with such parties. It has consulted with its own legal, regulatory, tax, business, investment, financial and accounting advisors to the extent it has deemed necessary, and has made its own investment decisions (including decisions regarding the suitability of any transactions pursuant to the Indenture) based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any view expressed by the Co-Issuers, the Initial Purchaser, the Trustee, NuCO2 or their respective Affiliates. It has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Series 2008-1 Notes, and it, and any accounts for which it is acting, are each able to bear the economic
risk of the investment. It is purchasing the Series 2008-1 Notes for its own account, or for one or more investor accounts for which it is acting as a fiduciary or agent, in each case for investment, and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act, subject to any requirements of law that the disposition of its property or the property of such investor account be at all times within its or their control and subject to its or their ability to resell such Series 2008-1 Notes pursuant to Rule 144A. It understands that an investment in the Series 2008-1 Notes involves certain risks, including the risk of loss of a substantial part of its investment under certain circumstances. It has had access to such financial and other information concerning the Series 2008-1 Notes, the Co-Issuers and the Employee Company as it deemed necessary or appropriate in order to make an informed investment decision with respect to its purchase of the Series 2008-1 Notes, including an opportunity to ask questions of, and request information from, the Co-Issuers. None of the Co-Issuers, the Initial Purchaser, the Trustee, NuCO2 or their respective Affiliates have given to it (directly or indirectly through any other person) any assurance, guarantee or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (including legal, regulatory, tax, financial, accounting or otherwise) of the Indenture, the Series 2008-1 Notes or the other documentation for the Series 2008-1 Notes. It has determined that the rates, prices or amounts and other terms of the purchase and sale of the Series 2008-1 Notes reflect those in the relevant market for similar transactions and it is purchasing the Series 2008-1 Notes with a full understanding of all of the terms, conditions and risks thereof (economic or otherwise) and it is capable of assuming and willing to assume (financially and otherwise) those risks. It is a sophisticated investor.
(vi) It understands that the Series 2008-1 Notes will, unless otherwise agreed by the Co-Issuers and the holder thereof in compliance with applicable law, bear one or more legends substantially as set forth in Sections 4.5(h), 4.5(i), 4.5(j), 4.8(h), 4.8(i) or 4.8(j), as applicable.
(vii) It understands that the Series 2008-1 Notes offered in reliance on Rule 144A will be represented by one or more Restricted 144A Global Notes. Before any interest in a Restricted Rule 144A Global Note may be offered, resold, pledged or otherwise transferred to a person who takes delivery in the form of an interest in a Restricted Regulation S Global Note or Unrestricted Global Note, the transferor will be required to provide the Trustee with a written certification as to compliance with transfer restrictions as set forth in Sections 4.5(c), 4.5(d), 4.8(c) or 4.8(d), as applicable.
(viii) It will not, at any time, offer to buy or offer to sell the Series 2008-1 Notes by any form of general solicitation or advertising, including, but not limited to, any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio or seminar or meeting whose attendees have been invited by general solicitations or advertising.
(ix) It understands that the Co-Issuers will require certification reasonably acceptable to the Co-Issuers (i) as a condition to the payment of principal of and interest on any Series 2008-1 Note without, or at a reduced rate of, U.S. withholding or backup withholding tax, and (ii) to enable it to determine its duties and liabilities with respect to any taxes or other charges that it, the Trustee or any paying agent may be required to pay, deduct or withhold from payments in respect of such Series 2008-1 Notes made to the holder of such Series 2008-1 Notes under any present or future law or regulation of the United States or any present or future law or regulation of any political subdivision thereof or taxing authority therein or to comply with any reporting or other requirements under any such law or regulation. Such certification may include U.S. Federal income tax forms (such as IRS Form W-8BEN (Certification of Foreign Status of Beneficial Owner), Form W-8IMY (Certification of Foreign Intermediary Status), IRS Form W-9 (Request for Taxpayer Identification Number and Certification), or IRS Form W-8ECI (Certification of Foreign Person’s Claim for Exemption from Withholding on Income Effectively Connected with Conduct of a U.S. Trade or Business) or any successors to such IRS forms). It agrees to provide any certification requested pursuant to this paragraph within a reasonable time period after such request is initially made and to update or replace such form or certification in accordance with its terms or its subsequent amendments.
(x) It understands that the Series 2008-1 Notes represent the obligation of the Co-Issuers only and other than payments that may arise under certain representations and warranties made by certain of their Affiliates, payments on the Series 2008-1 Notes are not the obligations of any of their Affiliates.
(xi) It understands that the Co-Issuers have the right hereunder to compel any non-permitted holder of an interest in the Series 2008-1 Notes to sell its interest in the Series 2008-1 Notes or may sell such interest in the Series 2008-1 Notes on behalf of such owner. In connection therewith, (a) if it is acquiring its interest in the Series 2008-1 Notes in the form of an interest in a Global Note, it understands that the Co-Issuers are permitted hereunder to require that the Holder of (i) any interest in a Restricted 144A Global Note held by a Holder that is a U.S. Person or a Holder who was sold such interest in the United States who is determined not to have been both a QIB and a QP at the time of
acquisition of such interest in a Restricted 144A Global Note or (ii) any interest in a Restricted Regulation S Global Note held by a Holder that is a U.S. Person or a Person who was sold such interest in the United States, in each case at the time of the acquisition of such interest, sell such interest to a transferee that is permitted hereunder and, if the Holder does not comply with such demand within 30 days thereof, the Co-Issuers, acting at the direction of the Master Manager, may sell such Holder’s interest in the applicable Global Note on such terms as the Co-Issuers may choose.
(xii) It understands that the Co-Issuers, the Employee Company, the Initial Purchaser, the Trustee, NuCO2, their respective Affiliates and their respective counsel will rely upon the accuracy and truth of the foregoing representations, and it hereby consents to such reliance.
(b) With respect to any sale of Series 2008-1 Notes pursuant to Regulation S, in addition to representing, warranting an agreeing as to all the matters set forth in (a) above under (i), (iii), (iv), (v), (vi) and (viii) through (xii):
(i) In connection with the purchase of the Series 2008-1 Notes: (a) the beneficial owner is not a U.S. Person and is acquiring the Series 2008-1 Notes in reliance on the exemption from registration provided by Regulation S thereunder, (b) such beneficial owner is a QP and (c) such beneficial owner is not acquiring any Series 2008-1 Note as part of a plan to reduce, avoid or evade U.S. Federal income taxes owed, owing or potentially owed or owing.
(ii) It and each beneficial owner is aware that the sale of such Series 2008-1 Notes to it is being made in reliance on the exemption from registration provided by Regulation S and are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act. Such Person further understands that the Series 2008-1 Notes offered in reliance on Regulation S will be represented by one or more Restricted Regulation S Global Notes. It and each beneficial owner of the Series 2008-1 Notes is a QP and is not and will not be a U.S. Person, and its purchase of the Series 2008-1 Notes will comply with all applicable laws in any jurisdiction in which it resides or is located. Before any interest in a Restricted Regulation S Global Note may be offered, resold, pledged or otherwise transferred, the transferor will be required to provide the Trustee with a written certification as to compliance with the transfer restrictions as set forth Sections 4.5(f) or 4.5(f), as applicable. Such beneficial owner acknowledges that no representation has been made as to the availability of any exemption under the Securities Act or any state or foreign securities laws for resale of the Series 2008-1 Notes.
(iii) It is aware that, except as otherwise provided herein, the Series 2008-1 Notes being sold to it will be represented (a) initially by one or more Restricted Regulation S Global Notes and (b) that during the Distribution Compliance Period, beneficial interests therein may be held only through Euroclear or Clearstream and after the last day of the Distribution Compliance Period, beneficial interests therein may be held only through Euroclear, Clearstream or DTC.
(iv) It understands that, prior to the first Business Day following the Distribution Compliance Period, any resale or other transfer of beneficial interests in a Restricted Regulation S Global Note in the United States or to U.S. Persons will not be permitted.
(v) On each day that it holds the Series 2008-1 Notes, it is deemed to represent, and any account on behalf of which it is purchasing the Series 2008-1 Notes is deemed to represent, that either (A) it is not and is not acting on behalf of (i) an employee benefit plan subject to Part 4 of Title I of ERISA, (ii) a plan subject to Section 4975 of the Code, (iii) an entity, the assets of which are considered to include assets of a plan described in (i) or (ii) or (iv) a governmental plan, a church plan or a foreign plan subject to provisions under any Similar Laws, and is not using the assets of any of the foregoing in purchasing an interest in the Series 2008-1 Notes, or (B) its purchase and holding of an interest in the Series 2008-1 Note does not and will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or, in the case of a governmental or other plan, a non-exempt violation of any applicable Similar Law).
(c) As a Holder of the Series 2008-1 Notes, it will have access to certain highly confidential, non-public and proprietary information regarding the Co-Issuers and the Collateral including the periodic reports, certificates, statements, agreements and other information to be made available to it through the internet website maintained by the Trustee (all such information, as well as internal materials prepared by it containing or based, in whole or in part, on any such information, for purposes of this Section 4.10 is referred to as “Confidential Information”). In consideration for and as a condition to the Co-Issuers providing such Confidential Information to it, it acknowledges and agrees that the Confidential Information will only be disclosed to (1) those personnel employed by it who need to know such information, (2) its attorneys and outside auditors, and that it and each such person will maintain the Confidential Information in absolute confidence and trust and in a manner at least as favorable as that with which it maintains its own confidential and proprietary information or (3) one or more prospective eligible transferees in whole or in part of its interest in the Series 2008-1 Notes. It agrees not to disclose such Confidential Information to any other person or entity, whether or not affiliated with it unless such disclosure is required to be made (i) to a regulatory or self-regulatory authority pursuant to applicable law or regulation or (ii) by judicial process; provided that it may disclose to any and all persons (A) information relating to the U.S. Federal and state tax treatment and tax structure of the transaction and
(B) all materials of any kind (including opinions or other tax analyses) that are provided to it relating to the U.S. Federal and state tax treatment and tax structure. Moreover, it agrees that it will provide the Master Manager with prompt written notice following any disclosure permitted pursuant to the preceding sentence.
ARTICLE V
GENERAL
(i) the total amount available to be distributed to Series 2008-1 Noteholders on such Payment Date;
(ii) the amount of such distribution allocable to the payment of principal of each Class of the Series 2008-1 Notes;
(iii) the amount of such distribution allocable to the payment of interest on each Class of the Series 2008-1 Notes;
(iv) the amount of such distribution allocable to the payment of the Series 2008-1 Note Make Whole Premium, if any, on the Series 2008-1 Class A-1 Notes or Series 2008-1 Class B-1 Notes, as applicable;
(v) the amount of such distribution allocable to the payment of any fees or other amounts due to the Series 2008-1 Class A-1 Noteholders, the Series 2008-1 Class A-2 Noteholders or the Series 2008-1 Class A-3 Noteholders, as applicable;
(vi) whether, to the knowledge of the Co-Issuers, any Early Amortization Event, Default, Event of Default or Master Manager Default has occurred as of such Determination Date;
(vii) the Debt Service Coverage Ratios for such Payment Date; and
(viii) the amount on deposit in the Senior Note Interest Reserve Account, and the amount on deposit, if any, in (i) the Cash Trap Reserve Account, (ii) the Contributions Reserve Account, (iii) the Termination Amount Reserve Account, and (iv) the Tax Reserve Account,
in each case, as of the close of business on the last Business Day of the Monthly Collection Period relating to such Payment Date.
ANNEX A
SERIES 2008-1
SUPPLEMENTAL DEFINITIONS LIST
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