Download Lender Claim Trust - Transfer Notice

TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned record holder of Lender Claim Trust
Beneficial Interests hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No. _________________
[INSERT NAME]
[INSERT ADDRESS]
Please print or typewrite name and address including zip code of assignee
[INSERT % INTEREST]
and all related rights under the Lender Claim Trust Agreement, hereby irrevocably constituting and
appointing
attorney to transfer said Lender Claim Trust Beneficial Interests on the books of the Lender
Claim Trust with full power of substitution in the premises.
In connection with any transfer of Lender Claim Trust Beneficial Interests, the
undersigned confirms that:
1. Neither the undersigned, nor anyone on the undersigned’s behalf, has engaged in any
general solicitation or general advertising in connection with such transfer.
2. These Lender Claim Trust Beneficial Interests are being transferred to an “accredited
investor” (as defined in Rule 501 under the Securities Act of 1933, as amended (the
“Securities Act”)) and certification in the form of Exhibit A hereto is being furnished
herewith.1
3. The undersigned is not an “affiliate” (as such term is defined in Rule 144(a)(1) under the
Securities Act) of the Lender Claim Trust and has not been an “affiliate” of the Lender
Claim Trust during the previous three months.2
4. To the extent the undersigned acquired these Lender Claim Trust Beneficial Interests
pursuant to the Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II,
LLC et al. (as subsequently amended or modified, the “Plan”), the undersigned is not an
“underwriter” (as such term is defined in Section 1145(b) of Title 11 of the United States
Bankruptcy Code).3
5. The undersigned acquired such Lender Claim Trust Beneficial Interests for its own
account (or for the account of one or more other persons as to which it exercises sole
investment discretion) for investment purposes only and not with a view to, or for offer or
sale in connection with, any distribution thereof in a transaction that would violate the
Securities Act or the securities laws of any State of the United States or any other
applicable jurisdiction.
The undersigned agrees to notify the Trustee promptly in writing if any of its
acknowledgments, representations or agreements herein ceases to be accurate and complete.
The undersigned also represents to you that it has full power to make the foregoing
acknowledgments, representations and agreements on its own behalf and on behalf of any
account for which it is acting.
The Trustee, the registrar, the transfer agent and the Lender Claim Trust, and each of
their respective counsels, are entitled to rely upon this Transfer Notice and are irrevocably
authorized to produce this Transfer Notice or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
[SIGNATURE PAGE FOLLOWS]
See Exhibit B for the definition of “accredited investor”.
See Exhibit B for the definition of “affiliate”.
3
See Exhibit B for the text of Section 1145(b)(1).
1
2
The undersigned hereby acknowledges and agrees that the undersigned’s name, as set forth in the
official Register, is [NAME AS IT APPEARS ON THE OFFICIAL REGSTER].
Date:
[LEGAL NAME OF
TRANSFEROR]
Seller
By
NOTICE: The signature to this assignment must correspond
with the name set forth in the official Register maintained by the
Trustee, or transfer agent or registrar if one is appointed by the
Trustee, without alteration or any change whatsoever. If the
transferor name indicated above is not identical to that name
set forth on the official Register, this Transfer Notice will be
rejected. If there are any questions, please contact the registrar
listed under Question 4 of the Frequently Asked Questions here:
https://cases.primeclerk.com/millenniumtrusts/.
On __________________________, before me, ____________________, Notary Public,
personally appeared ____________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
Seal
Printed Name of Notary Public
My Commission Expires:
EXHIBIT A
Accredited Investor Certificate
Marc S. Kirschner
Goldin Associates, LLC
350 Fifth Avenue
44th Floor
New York, New York 10118
Re:
Lender Claim Trust Beneficial Interests under the Lender
Claim Trust Agreement
Ladies and Gentlemen:
This Certificate relates to our proposed purchase or exchange of [INSERT % INTEREST]
of the Lender Claim Trust Beneficial Interests from [INSERT TRANSFEROR NAME] in
accordance with the Lender Claim Trust Agreement.
We hereby confirm that:
4
1.
We are an “accredited investor” within the meaning of Rule 501 under the
Securities Act of 1933, as amended (the “Securities Act”) (an “Accredited
Investor”).4
2.
Any acquisition of Lender Claim Trust Beneficial Interests by us will be for our
own account (or for the account of one or more other Accredited Investors as to
which we exercise sole investment discretion).
3.
We are acquiring the Lender Claim Trust Beneficial Interests for investment
purposes only and not with a view to any distribution thereof in a transaction that
would violate the Securities Act or the securities laws of any State of the United
States or any other applicable jurisdiction; provided that the disposition of our
property and the property of any accounts for which we are acting as fiduciary
will remain at all times within our and their control.
4.
We understand that the Lender Claim Trust Beneficial Interests are subject to a
Lender Claim Trust Agreement, dated December 21, 2015, and that by accepting
any Lender Claim Trust Beneficial Interests we are agreeing to and shall become
bound by all of the provisions of that Lender Claim Trust Agreement, including
certain restrictions on transfer set forth therein.
See Exhibit B for the definition of “accredited investor”.
5.
We are aware that the Lender Claim Trust Beneficial Interests are highly
speculative and that there can be no assurance as to what return, if any, there may
be.
6.
We have had access to such information as we have deemed necessary to our
determination to acquire the Lender Claim Trust Beneficial Interests and we have
not relied upon any statements, whether written or oral, of the Lender Claim
Trust, the transfer agent, the registrar or the Trustee in making such
determination.
7.
We acknowledge that none of the Lender Claim Trust, the transfer agent, the
registrar or the Trustee has provided, or will provide in the future, any legal or tax
advice regarding the Lender Claim Trust Beneficial Interests and that we should
consult our own tax or legal advisor for any such advice.
We agree for the benefit of the Lender Claim Trust, on our own behalf and on behalf of
each account for which we are acting, that such Lender Claim Trust Beneficial Interests may be
offered, sold, pledged or otherwise transferred only in accordance with the Lender Claim Trust
Agreement and the Securities Act and any applicable securities laws of any State of the United
States.
Prior to the registration of any transfer, we acknowledge that a duly completed and
signed certificate (the form of which may be obtained from the Trustee) must be delivered to the
Trustee, the registrar and the transfer agent and that the Lender Claim Trust reserves the right to
require the delivery of such legal opinions, certifications or other evidence as may reasonably be
required in order to determine that the proposed transfer is being made in compliance with the
Securities Act, applicable state securities laws, the Trust Indenture Act of 1939, as amended, the
Securities Exchange Act of 1934, as amended and the Lender Claim Trust Agreement.
We understand that none of the Trustee, the registrar or the transfer agent will be required
to accept for registration of transfer any Lender Claim Trust Beneficial Interests acquired by us,
except upon presentation of evidence satisfactory to the Lender Claim Trust and the Trustee that
the foregoing restrictions on transfer have been complied with, including without limitation those
set forth in the Lender Claim Trust Agreement. We further agree to provide to any person
acquiring any of the Lender Claim Trust Beneficial Interests from us a notice advising such
person that resales of the Lender Claim Trust Beneficial Interests are restricted as stated herein.
We understand that we are subject to the federal income tax treatment imposed under the
United States Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations
with respect thereto (as well as the tax laws of other applicable state, local or other jurisdictions)
as a result of the ownership of Lender Claim Trust Beneficial Interests and we agree to comply
in all respects with the obligations imposed as a result of such tax laws. Without limiting the
foregoing, we understand that the Lender Claim Trust is intended to, and shall be construed in all
respects so as to, constitute a "grantor trust"; by acquisition of Lender Claim Trust Beneficial
Interests, we shall be a "grantor" of such "grantor trust" as of the date of our acquisition of such
Lender Claim Trust Beneficial Interests.
We agree to notify you promptly in writing if any of our acknowledgments,
representations or agreements herein ceases to be accurate and complete.
We represent to you that we have full power to make the foregoing acknowledgments,
representations and agreements on our own behalf and on behalf of any account for which we are
acting.
The Trustee, the registrar, the transfer agent and the Lender Claim Trust, and each of
their respective counsels, are entitled to rely upon this Certificate and are irrevocably authorized
to produce this Certificate or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER (FOR
TRANSFERS) OR OWNER (FOR
EXCHANGES)]
By:
Name:
Title:
Address:
Date: _________________
On __________________________, before me, ____________________, Notary Public,
personally appeared ____________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
Seal
Printed Name of Notary Public
My Commission Expires:
Upon transfer, the Lender Claim Trust Beneficial Interests would be registered in the
name of the new owner as follows:
By: _________________________________
Date: ________________________________
Taxpayer ID number: ___________________
EXHIBIT B
Section 1145(b)(1) of Title 11 of the United States Bankruptcy Code
(1) Except as provided in paragraph (2) of this subsection and except with respect to ordinary
trading transactions of an entity that is not an issuer, an entity is an underwriter under section
2(a)(11) of the Securities Act of 1933, if such entity—
(A) purchases a claim against, interest in, or claim for an administrative expense in the case
concerning, the debtor [the Millennium bankruptcy], if such purchase is with a view to
distribution of any security received or to be received in exchange for such a claim or interest;
(B) offers to sell securities offered or sold under the plan for the holders of such securities;
(C) offers to buy securities offered or sold under the plan from the holders of such securities, if
such offer to buy is—
(i) with a view to distribution of such securities; and
(ii) under an agreement made in connection with the plan, with the consummation of the
plan, or with the offer or sale of securities under the plan; or
(D) is an issuer, as used in such section 2(a)(11), with respect to such securities.
Definition of “Affiliate” (Rule 144(a)(1) under the Securities Act of 1933, as amended)
(1) An affiliate of an issuer is a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, such issuer [the
Lender Claim Trust].
Definition of “Accredited Investor” (Rule 501 under the Securities Act of 1933, as amended)
(a) Accredited investor. “Accredited investor” shall mean any person who comes within any of
the following categories, or who the issuer reasonably believes comes within any of the
following categories, at the time of the sale of the securities to that person:
(1) Any bank as defined in section 3(a)(2) of the Act, or any savings and loan association or
other institution as defined in section 3(a)(5)(A) of the Act whether acting in its individual or
fiduciary capacity; any broker or dealer registered pursuant to section 15 of the Securities
Exchange Act of 1934; any insurance company as defined in section 2(a)(13) of the Act; any
investment company registered under the Investment Company Act of 1940 or a business
development company as defined in section 2(a)(48) of that Act; any Small Business Investment
Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the
Small Business Investment Act of 1958; any plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for
the benefit of its employees, if such plan has total assets in excess of $5,000,000; any employee
benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the
investment decision is made by a plan fiduciary, as defined in section 3(21) of such act, which is
either a bank, savings and loan association, insurance company, or registered investment adviser,
or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan,
with investment decisions made solely by persons that are accredited investors;
(2) Any private business development company as defined in section 202(a)(22) of the
Investment Advisers Act of 1940;
(3) Any organization described in section 501(c)(3) of the Internal Revenue Code, corporation,
Massachusetts or similar business trust, or partnership, not formed for the specific purpose of
acquiring the securities offered, with total assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the issuer of the securities being offered
or sold, or any director, executive officer, or general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net worth with that person's spouse,
exceeds $1,000,000.
(i) Except as provided in paragraph (a)(5)(ii) of this section, for purposes of calculating net worth
under this paragraph (a)(5):
(A) The person's primary residence shall not be included as an asset;
(B) Indebtedness that is secured by the person's primary residence, up to the estimated fair
market value of the primary residence at the time of the sale of securities, shall not be included
as a liability (except that if the amount of such indebtedness outstanding at the time of sale of
securities exceeds the amount outstanding 60 days before such time, other than as a result of the
acquisition of the primary residence, the amount of such excess shall be included as a liability);
and
(C) Indebtedness that is secured by the person's primary residence in excess of the estimated fair
market value of the primary residence at the time of the sale of securities shall be included as a
liability;
(ii) Paragraph (a)(5)(i) of this section will not apply to any calculation of a person's net worth
made in connection with a purchase of securities in accordance with a right to purchase such
securities, provided that:
(A) Such right was held by the person on July 20, 2010;
(B) The person qualified as an accredited investor on the basis of net worth at the time the person
acquired such right; and
(C) The person held securities of the same issuer, other than such right, on July 20, 2010.
(6) Any natural person who had an individual income in excess of $200,000 in each of the two
most recent years or joint income with that person's spouse in excess of $300,000 in each of
those years and has a reasonable expectation of reaching the same income level in the current
year;
(7) Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase is directed by a sophisticated person as
described in §230.506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited investors.