For ERISA Stockholders and Other Plan Investors. If the Subscriber is, or is acting on behalf of, a Benefit Plan Investor or an Other Plan Investor (each, a “Plan”), as an inducement to the Company’s sale, issuance of, or consent to transfer of, the Shares to the Subscriber, the Subscriber represents and warrants that: (1) ☐ The Subscriber has been informed of and understands the Company’s investment objectives, policies and strategies; (2) ☐ The decision to invest in the Company was made by the applicable fiduciaries that have the authority and discretion to and are duly authorized to make such investment with appropriate consideration of relevant investment factors with regard to the Stockholder and is consistent with the duties and responsibilities imposed upon fiduciaries with regard to their investment decisions under ERISA or other applicable law; (3) ☐ The Subscriber has the authority to invest plan assets in the Company under the appropriate investment policies and governing instruments applicable to the Stockholder for which the Subscriber is acting and under Title I of ERISA or similar applicable law; (4) ☐ The Subscriber’s decision to invest plan assets in the Company was made solely by the applicable fiduciary(ies), following appropriate consideration of the Offering Document and the Governing Documents, and the applicable fiduciary’s duties and responsibilities as a fiduciary; (5) ☐ The Advisor has acted not as an “investment adviser” or otherwise as a fiduciary (within the meaning of Section 3(21) of ERISA, Section 4975 of the Code or other similar law) with respect to the decision of the ERISA Stockholder or Other Plan Investor to invest in the Company or to direct the Company to enter into the Investment Advisory Agreement with the Advisor; (6) ☐ The Advisor is responsible only for the assets of the Company and the Advisor has no responsibility or authority with respect to any other assets of the Stockholder or with respect to: (i) the contents of the employee benefit plan comprising the Stockholder and applicable trust documents, (ii) the role that the Stockholder’s investment in the Company plays in the context of the ERISA Stockholder’s overall portfolio; (iii) the composition of the Stockholder’s portfolio with regard to diversification; (iv) the liquidity and anticipated current return of the Stockholder’s portfolio relative to the anticipated cash flow requirements of the Stockholder; or (v) the projected return of the portfolio with respect to the funding objectives of the Stockholder. The Subscriber understands that this representation and warranty is being provided to the Company and the Advisor for the express purpose of assisting them in the performance of their duties with respect to the Company; (7) ☐ The acquisition of Shares by the Subscriber will not result in the occurrence of a non-exempt prohibited transaction under Part 4 of Title I of ERISA or under the related excise tax provisions of Section 4975 of the Code, or a violation of any Similar Law applicable to the Subscriber. (8) ☐ The Subscriber is aware of and has taken into consideration the diversification requirements of and other fiduciary duties under Section 404(a)(1) of ERISA or any other similar applicable law and have concluded that the proposed investment by the Company is a prudent one; (9) ☐ The Subscriber has considered the investment in the Company and has determined that, in view of such considerations, the purchase of Shares is consistent with the Subscriber’s responsibilities under ERISA or Section 4975 of the Code, including (i) whether the investment in the Company is prudent; (ii) whether the investment or investment course of action is reasonably designed as part of that portion of the portfolio managed by the Subscriber, taking into account both the risk of loss and the opportunity for gain that could result therefrom; (iii) whether the Stockholder’s current and anticipated liquidity needs would be met, given the limited rights to redeem or transfer the Shares; (iv) whether the investment would permit the Stockholder’s overall portfolio to remain adequately diversified; (v) whether the investment is permitted under documents governing the Stockholder; (vi) whether the investment may result in any adverse tax consequences to the Stockholder; and (vii) the risks associated with an investment in the Company; (10) ☐ The Subscriber (i) is responsible for the decision to invest in the Company; (ii) is independent of the Company, the Advisor and all of their respective affiliates; (iii) has determined that each of the Company and the Advisor is not a “party in interest” or “disqualified person” (as such terms are defined in ERISA and Section 4975 of the Code) with respect to the ERISA Stockholder; (iv) is qualified to make such investment decision and have to the extent it deems necessary has consulted its own investment advisors and legal counsel regarding the investment in the Company; and (v) in making its decision to invest in the Company has not relied on any advice or recommendation of the Company, the Advisor or any of their affiliates; (11) ☐ The Subscriber understands and acknowledges that ERISA restricts the trading of employer securities as defined in Section 407 of ERISA (“Employer Securities”) and in connection therewith, the Subscriber, on behalf of the plan, has assumed full responsibility and liability for monitoring the plan’s compliance with Section 407 of ERISA. The Subscriber may request, at reasonable intervals, information on behalf of the investing plan to determine if and to what extent the Company invests in securities issued by the employer of the employees covered by such plan or by an affiliate of such employer; (12) ☐ The Subscriber acknowledges that it is intended that the Company will not hold ERISA “plan assets” as defined by the Plan Assets Regulation. Accordingly, the Subscriber acknowledges that the Company has the authority to require the sale of any Shares if the continued holding of such Shares, in the opinion of the Company, could result in the Company being subject to, or violating, ERISA or Section 4975 of the Code; (13) ☐ The Subscriber agrees to from time to time hereafter to deliver to the Company, in writing, all of the information that the Company may reasonably request in order to avoid violations of any provision of ERISA, Section 4975 of the Code or any other laws applicable to the Stockholder, and promptly will notify the Company, in writing, of any change in the information so furnished. The undersigned agrees to notify the Company promptly of any changes in the foregoing information which may occur prior to or following an investment in the Company. Name of Subscriber (please print) By: Name of Fiduciary By: (Name of Signer, Title/Capacity) Annex A to Subscription Agreement: Subscriber Questionnaire for Individual Investors (including IRAs)
Appears in 1 contract
Samples: Subscription Agreement (Crescent Capital BDC, Inc.)
For ERISA Stockholders and Other Plan Investors. If the Subscriber is, or is acting on behalf of, a Benefit Plan Investor or an Other Plan Investor (each, a “Plan”), as an inducement to the Company’s sale, issuance of, or consent to transfer of, the Shares to the Subscriber, the Subscriber represents and warrants that:
(1) ☐ The Subscriber has been informed of and understands the Company’s investment objectives, policies and strategies;
(2) ☐ ◻ The decision to invest in the Company was made by a fiduciary of the applicable fiduciaries Plan that have has the authority and discretion to to, and are is duly authorized to to, make such investment with appropriate consideration on behalf of relevant investment factors with regard to the Stockholder Plan (the “Fiduciary”);
(2) ◻ The Plan’s subscription for Shares contemplated hereby is duly authorized by and is consistent otherwise in accordance with the duties and responsibilities imposed upon fiduciaries with regard to their investment decisions under ERISA or other applicable lawPlan’s governing instruments;
(3) ☐ ◻ The Subscriber has the authority to invest plan assets in the Company under the appropriate investment policies and governing instruments applicable to the Stockholder for which the Subscriber is acting and under Title I of ERISA or similar applicable law;
(4) ☐ The Subscriber’s decision to invest plan assets in the Company was made solely by the applicable fiduciary(ies), following appropriate consideration of the Offering Document and the Governing Documents, and the applicable fiduciary’s duties and responsibilities as a fiduciary;
(5) ☐ The Advisor Adviser has acted not as an “investment adviser” or otherwise as a fiduciary (within the meaning of Section 3(21) of ERISA, Section 4975 of the Code or other similar law) with respect to the decision of the ERISA Stockholder or Other Plan Investor to invest in the Company or to direct the Company to enter into the Investment Advisory Agreement with the Advisor;
(6) ☐ The Advisor is responsible only for the assets of the Company and the Advisor has no responsibility or authority with respect to any other assets of the Stockholder or with respect to: (i) the contents of the employee benefit plan comprising the Stockholder and applicable trust documents, (ii) the role that the Stockholder’s investment in the Company plays in the context of the ERISA Stockholder’s overall portfolio; (iii) the composition of the Stockholder’s portfolio with regard to diversification; (iv) the liquidity and anticipated current return of the Stockholder’s portfolio relative to the anticipated cash flow requirements of the Stockholder; or (v) the projected return of the portfolio with respect to the funding objectives of the Stockholder. The Subscriber understands that this representation and warranty is being provided to the Company and the Advisor for the express purpose of assisting them in the performance of their duties with respect to the Company;
(74) ☐ ◻ The acquisition of Shares by the Subscriber will not constitute or otherwise result in the occurrence of a non-exempt prohibited transaction under Part 4 of Title I of ERISA or under the related excise tax provisions of Section 4975 of the Code, or a violation of any Similar Law applicable to the Subscriber.
(8) ☐ 5) ◻ The Subscriber is aware of and has taken into consideration the diversification requirements of and other fiduciary duties under Section 404(a)(1) of ERISA or any other similar applicable law and have concluded that the proposed investment by the Company is a prudent one;
(9) ☐ The Subscriber has considered the investment in the Company and has determined that, in view of such considerations, the purchase of Shares is consistent with the Subscriber’s responsibilities under ERISA or Section 4975 of the Code, including (i) whether the investment in the Company is prudent; (ii) whether the investment or investment course of action is reasonably designed as part of that portion of the portfolio managed by the Subscriber, taking into account both the risk of loss and the opportunity for gain that could result therefrom; (iii) whether the Stockholder’s current and anticipated liquidity needs would be met, given the limited rights to redeem or transfer the Shares; (iv) whether the investment would permit the Stockholder’s overall portfolio to remain adequately diversified; (v) whether the investment is permitted under documents governing the Stockholder; (vi) whether the investment may result in any adverse tax consequences to the Stockholder; and (vii) the risks associated with an investment in the Company;
(10) ☐ The Subscriber Fiduciary (i) is responsible for the decision to invest in the Company; (ii) is independent of the Company, the Advisor Adviser and all of their respective affiliates; (iii) has determined that each of the Company and the Advisor is not a “party in interest” or “disqualified person” (as such terms are defined in ERISA and Section 4975 of the Code) with respect to the ERISA Stockholder; (iv) is qualified to make such investment decision and have to the extent it deems necessary has consulted its own investment advisors and legal counsel regarding the investment in the Company; and (viv) in making its decision to invest in the Company Company, has not relied on any advice or recommendation of the Company, the Advisor Adviser or any of their affiliates;; SCHEDULE 2 – ERISA AND OTHER PLAN SUBSCRIBERS ONLY
(116) ☐ The Subscriber understands and acknowledges that ERISA restricts the trading of employer securities as defined in Section 407 of ERISA (“Employer Securities”) and in connection therewith, the Subscriber, on behalf of the plan, has assumed full responsibility and liability for monitoring the plan’s compliance with Section 407 of ERISA. The Subscriber may request, at reasonable intervals, information on behalf of the investing plan to determine if and to what extent the Company invests in securities issued by the employer of the employees covered by such plan or by an affiliate of such employer;
(12) ☐ ◻ The Subscriber acknowledges that it is intended that the Company will not hold ERISA “plan assets” as defined by the Plan Assets Regulation. Accordingly, the Subscriber acknowledges that the Company has the authority to require the sale of any Shares if the continued holding of such Shares, in the opinion of the Company, could result in the Company being subject to, or violating, ERISA or Section 4975 of the Code;
(137) ☐ ◻ The Subscriber agrees to from time to time hereafter to deliver to the Company, in writing, all of the information that the Company may reasonably request in order to avoid violations of any provision of ERISA, Section 4975 of the Code or any other laws applicable to the StockholderSubscriber, and promptly will notify the Company, in writing, of any change in the information so furnished. The undersigned agrees to notify the Company promptly of any changes in the foregoing information which may occur prior to or following an investment in the Company. ____________________________________ Name of Subscriber (please print) ____________________________________ By: Name of Fiduciary ____________________________________ By: (Name of Signer, Title/Capacity) Annex A to Subscription Agreement: Subscriber Questionnaire for Individual Investors (including IRAs)
Appears in 1 contract
For ERISA Stockholders and Other Plan Investors. If the Subscriber is, or is acting on behalf of, a Benefit Plan Investor or an Other Plan Investor (each, a “Plan”), as an inducement to the Company’s sale, issuance of, or consent to transfer of, the Shares to the Subscriber, the Subscriber represents and warrants that::
(1) ☐ The ¨The Subscriber has been informed of and understands the Company’s investment objectives, policies and strategies;;
(2) ☐ The ¨The decision to invest in the Company was made by the applicable fiduciaries that have the authority and discretion to and are duly authorized to make such investment with appropriate consideration of relevant investment factors with regard to the Stockholder and is consistent with the duties and responsibilities imposed upon fiduciaries with regard to their investment decisions under ERISA or other applicable law;;
(3) ☐ The ¨The Subscriber has the authority to invest plan assets in the Company under the appropriate investment policies and governing instruments applicable to the Stockholder for which the Subscriber is acting and under Title I of ERISA or similar applicable law;
(4) ☐ The ¨The Subscriber’s decision to invest plan assets in the Company was made solely by the applicable fiduciary(ies), following appropriate consideration of the Offering Document and the Governing Documents, and the applicable fiduciary’s duties and responsibilities as a fiduciary;
(5) ☐ The Advisor ¨The Adviser has acted not as an “investment adviser” or otherwise as a fiduciary (within the meaning of Section 3(21) of ERISA, Section 4975 of the Code or other similar law) with respect to the decision of the ERISA Stockholder or Other Plan Investor to invest in the Company or to direct the Company to enter into the Investment Advisory Agreement with the Advisor;Adviser;
(6) ☐ The Advisor ¨The Adviser is responsible only for the assets of the Company and the Advisor Adviser has no responsibility or authority with respect to any other assets of the Stockholder or with respect to: (i) the contents of the employee benefit plan comprising the Stockholder and applicable trust documents, (ii) the role that the Stockholder’s investment in the Company plays in the context of the ERISA Stockholder’s overall portfolio; (iii) the composition of the Stockholder’s portfolio with regard to diversification; (iv) the liquidity and anticipated current return of the Stockholder’s portfolio relative to the anticipated cash flow requirements of the Stockholder; or (v) the projected return of the portfolio with respect to the funding objectives of the Stockholder. The Subscriber understands that this representation and warranty is being provided to the Company and the Advisor Adviser for the express purpose of assisting them in the performance of their duties with respect to the Company;;
(7) ☐ The ¨The acquisition and holding of Shares by the Subscriber will not result in the occurrence of a non-exempt prohibited transaction under Part 4 of Title I of ERISA or under the related excise tax provisions of Section 4975 of the Code, or a violation of any Similar Law applicable to the Subscriber..
(8) ☐ The ¨The Subscriber is aware of and has taken into consideration the diversification requirements of and other fiduciary duties under Section 404(a)(1) of ERISA or any other similar applicable law and have concluded that the proposed investment by the Company is a prudent one;;
(9) ☐ The ¨The Subscriber has considered the investment in the Company and has determined that, in view of such considerations, the purchase of Shares is consistent with the Subscriber’s responsibilities under ERISA or Section 4975 of the Code, including (i) whether the investment in the Company is prudent; (ii) whether the investment or investment course of action is reasonably designed as part of that portion of the portfolio managed by the Subscriber, taking into account both the risk of loss and the opportunity for gain that could result therefrom; (iii) whether the Stockholder’s current and anticipated liquidity needs would be met, given the limited rights to redeem or transfer the Shares; (iv) whether the investment would permit the Stockholder’s overall portfolio to remain adequately diversified; (v) whether the investment is permitted under documents governing the Stockholder; (vi) whether the investment may result in any adverse tax consequences to the Stockholder; and (vii) the risks associated with an investment in the Company;;
(10) ☐ The ¨The Subscriber (i) is responsible for the decision to invest in the Company; (ii) is independent of the Company, the Advisor Adviser and all of their respective affiliates; (iii) has determined that each of the Company and the Advisor Adviser is not a “party in interest” or “disqualified person” (as such terms are defined in ERISA and Section 4975 of the Code) with respect to the ERISA Stockholder; (iv) is qualified to make such investment decision and have has, to the extent it deems necessary has necessary, consulted its own investment advisors and legal counsel regarding the investment in the Company; and (v) in making its decision to invest in the Company has not relied on any advice or recommendation of the Company, the Advisor Adviser or any of their affiliates;;
(11) ☐ The Subscriber understands and acknowledges that ERISA restricts the trading of employer securities as defined in Section 407 of ERISA (“Employer Securities”) and in connection therewith, the Subscriber, on behalf of the plan, has assumed full responsibility and liability for monitoring the plan’s compliance with Section 407 of ERISA. The Subscriber may request, at reasonable intervals, information on behalf of the investing plan to determine if and to what extent the Company invests in securities issued by the employer of the employees covered by such plan or by an affiliate of such employer;
(12) ☐ The ¨The Subscriber acknowledges that it is intended that the Company will not hold ERISA “plan assets” as defined by the Plan Assets Regulation. Accordingly, the Subscriber acknowledges that the Company has the authority to require the sale of any Shares if the continued holding of such Shares, in the opinion of the Company, could result in the Company being subject to, or violating, ERISA or Section 4975 of the Code;;
(1312) ☐ The ¨The Subscriber agrees to from time to time hereafter to deliver to the Company, in writing, all of the information that the Company may reasonably request in order to avoid being subject to, or violations of of, any provision of ERISA, Section 4975 of the Code or any other laws applicable to the Stockholder, and promptly will notify the Company, in writing, of any change in the information so furnished. No information that the Company, the Adviser and any persons providing marketing services on their behalf, and their affiliates (collectively, the “Company Parties”) is providing shall be considered to be or is advice on which the Subscriber may rely for its investment decisions. The Subscriber must make its own decision, with whatever third-party advice it may wish to obtain, and the Subscriber is not authorized to rely on any information any Company Party is providing as advice that is a basis for the Subscriber’s decisions. It is expressly confirmed, and the Subscriber expressly acknowledges, that the Company Parties have not made and are not making a recommendation, and have not provided and are not providing investment advice of any kind whatsoever (whether impartial or otherwise), or are giving any advice in a fiduciary capacity, in connection with the Subscriber’s decision to execute this Subscription Agreement and consummate the transactions contemplated hereby. Further, the Subscriber acknowledges the Company Parties’ financial interests as described in the Offering Document and any related materials. The undersigned agrees to notify the Company promptly of any changes in the foregoing information which may occur prior to or following an investment in the Company. Name of Subscriber (please print) By: Name of Fiduciary By: (Name of Signer, Title/Capacity) Annex A
1. Subscriber as an Individual Investor. The Subscriber’s investment in the Company is being made (please check one and any corresponding box underneath the appropriate category): ¨ as an individual. ¨ with the Subscriber’s spouse (please check one)1: ¨ as joint tenants with rights of survivorship. ¨ as tenants in common. ¨ as community property. ¨ through a revocable trust established to Subscription Agreementfacilitate distribution of the Subscriber’s estate and there are ___ living grantor(s) and ___ beneficiary (ies) other than the grantors (determined by treating any person indirectly owning an interest in the trust through one or more pass-through entities (i.e., limited liability companies treated as a partnership for income tax purposes, partnerships, S corporations and trusts) as if such person were a beneficiary). If the Subscriber is investing through a revocable trust, the Subscriber further represents that: (Please indicate whether the following representations are applicable by checking the appropriate box.)
a. substantially all of the value of each beneficial owner’s interest (direct or indirect) in the trust is not attributable to such trust’s interest (direct or indirect) in the Company. (Please check one.) ¨ Yes ¨ No ¨ through an Individual Retirement Account (For U.S. domestic Subscribers only. Does not apply to foreign Subscribers.) ¨ through the Subscriber’s self-directed Xxxxx Xxxx Account. ¨ through another self-directed employee benefit plan as defined in Title I of ERISA. 1 Any Co-Owner other than a spouse must submit a separate subscription agreement.
2. Subscriber’s Net Worth. (Please indicate whether the following representation is applicable by checking the appropriate box.) The Subscriber Questionnaire for Individual Investors has a net worth, individually or jointly with the Subscriber’s spouse, which exceeds $1,000,000 at the time of the Closing (including IRAs)excluding the value of the investor’s primary residence)2, or had an individual income in excess of $200,000 in each of the two most recent years or joint income with the Subscriber’s spouse of $300,000 in each of those years and the Subscriber has a reasonable expectation of reaching the same income level in the current year. (Please check one) ¨ Yes ¨ No
3. Subscriber Status as U.S./Foreign Person. (Please read Section 3.1 and check the box if you are described in such section. If not, check the box at 3.2.)
Appears in 1 contract
For ERISA Stockholders and Other Plan Investors. If the Subscriber is, or is acting on behalf of, a Benefit Plan Investor or an Other Plan Investor (each, a “Plan”), as an inducement to the Company’s sale, issuance of, or consent to transfer of, the Shares to the Subscriber, the Subscriber represents and warrants that:
(1) ☐ ¨ The Subscriber has been informed of and understands the Company’s investment objectives, policies and strategies;
(2) ☐ ¨ The decision to invest in the Company was made by the applicable fiduciaries that have the authority and discretion to and are duly authorized to make such investment with appropriate consideration of relevant investment factors with regard to the Stockholder and is consistent with the duties and responsibilities imposed upon fiduciaries with regard to their investment decisions under ERISA or other applicable law;
(3) ☐ ¨ The Subscriber has the authority to invest plan assets in the Company under the appropriate investment policies and governing instruments applicable to the Stockholder for which the Subscriber is acting and under Title I of ERISA or similar applicable law;
(4) ☐ ¨ The Subscriber’s decision to invest plan assets in the Company was made solely by the applicable fiduciary(ies), following appropriate consideration of the Offering Document and the Governing Documents, and the applicable fiduciary’s duties and responsibilities as a fiduciary;
(5) ☐ ¨ The Advisor Adviser has acted not as an “investment adviser” or otherwise as a fiduciary (within the meaning of Section 3(21) of ERISA, Section 4975 of the Code or other similar law) with respect to the decision of the ERISA Stockholder or Other Plan Investor to invest in the Company or to direct the Company to enter into the Investment Advisory Agreement with the AdvisorAdviser;
(6) ☐ ¨ The Advisor Adviser is responsible only for the assets of the Company and the Advisor Adviser has no responsibility or authority with respect to any other assets of the Stockholder or with respect to: (i) the contents of the employee benefit plan comprising the Stockholder and applicable trust documents, (ii) the role that the Stockholder’s investment in the Company plays in the context of the ERISA Stockholder’s overall portfolio; (iii) the composition of the Stockholder’s portfolio with regard to diversification; (iv) the liquidity and anticipated current return of the Stockholder’s portfolio relative to the anticipated cash flow requirements of the Stockholder; or (v) the projected return of the portfolio with respect to the funding objectives of the Stockholder. The Subscriber understands that this representation and warranty is being provided to the Company and the Advisor Adviser for the express purpose of assisting them in the performance of their duties with respect to the Company;
(7) ☐ ¨ The acquisition and holding of Shares by the Subscriber will not result in the occurrence of a non-exempt prohibited transaction under Part 4 of Title I of ERISA or under the related excise tax provisions of Section 4975 of the Code, or a violation of any Similar Law applicable to the Subscriber.
(8) ☐ ¨ The Subscriber is aware of and has taken into consideration the diversification requirements of and other fiduciary duties under Section 404(a)(1) of ERISA or any other similar applicable law and have concluded that the proposed investment by the Company is a prudent one;
(9) ☐ ¨ The Subscriber has considered the investment in the Company and has determined that, in view of such considerations, the purchase of Shares is consistent with the Subscriber’s responsibilities under ERISA or Section 4975 of the Code, including (i) whether the investment in the Company is prudent; (ii) whether the investment or investment course of action is reasonably designed as part of that portion of the portfolio managed by the Subscriber, taking into account both the risk of loss and the opportunity for gain that could result therefrom; (iii) whether the Stockholder’s current and anticipated liquidity needs would be met, given the limited rights to redeem or transfer the Shares; (iv) whether the investment would permit the Stockholder’s overall portfolio to remain adequately diversified; (v) whether the investment is permitted under documents governing the Stockholder; (vi) whether the investment may result in any adverse tax consequences to the Stockholder; and (vii) the risks associated with an investment in the Company;
(10) ☐ ¨ The Subscriber (i) is responsible for the decision to invest in the Company; (ii) is independent of the Company, the Advisor Adviser and all of their respective affiliates; (iii) has determined that each of the Company and the Advisor Adviser is not a “party in interest” or “disqualified person” (as such terms are defined in ERISA and Section 4975 of the Code) with respect to the ERISA Stockholder; (iv) is qualified to make such investment decision and have has, to the extent it deems necessary has necessary, consulted its own investment advisors and legal counsel regarding the investment in the Company; and (v) in making its decision to invest in the Company has not relied on any advice or recommendation of the Company, the Advisor Adviser or any of their affiliates;
(11) ☐ The Subscriber understands and acknowledges that ERISA restricts the trading of employer securities as defined in Section 407 of ERISA (“Employer Securities”) and in connection therewith, the Subscriber, on behalf of the plan, has assumed full responsibility and liability for monitoring the plan’s compliance with Section 407 of ERISA. The Subscriber may request, at reasonable intervals, information on behalf of the investing plan to determine if and to what extent the Company invests in securities issued by the employer of the employees covered by such plan or by an affiliate of such employer;
(12) ☐ ¨ The Subscriber acknowledges that it is intended that the Company will not hold ERISA “plan assets” as defined by the Plan Assets Regulation. Accordingly, the Subscriber acknowledges that the Company has the authority to require the sale of any Shares if the continued holding of such Shares, in the opinion of the Company, could result in the Company being subject to, or violating, ERISA or Section 4975 of the Code;
(1312) ☐ ¨ The Subscriber agrees to from time to time hereafter to deliver to the Company, in writing, all of the information that the Company may reasonably request in order to avoid being subject to, or violations of of, any provision of ERISA, Section 4975 of the Code or any other laws applicable to the Stockholder, and promptly will notify the Company, in writing, of any change in the information so furnished. No information that the Company, the Adviser and any persons providing marketing services on their behalf, and their affiliates (collectively, the “Company Parties”) is providing shall be considered to be or is advice on which the Subscriber may rely for its investment decisions. The Subscriber must make its own decision, with whatever third-party advice it may wish to obtain, and the Subscriber is not authorized to rely on any information any Company Party is providing as advice that is a basis for the Subscriber’s decisions. It is expressly confirmed, and the Subscriber expressly acknowledges, that the Company Parties have not made and are not making a recommendation, and have not provided and are not providing investment advice of any kind whatsoever (whether impartial or otherwise), or are giving any advice in a fiduciary capacity, in connection with the Subscriber’s decision to execute this Subscription Agreement and consummate the transactions contemplated hereby. Further, the Subscriber acknowledges the Company Parties’ financial interests as described in the Offering Document and any related materials. The undersigned agrees to notify the Company promptly of any changes in the foregoing information which may occur prior to or following an investment in the Company. Name of Subscriber (please print) By: Name of Fiduciary By: (Name of Signer, Title/Capacity) Annex A to Subscription Agreement: Subscriber Questionnaire for Individual Investors (including IRAs)
Appears in 1 contract
For ERISA Stockholders and Other Plan Investors. If the Subscriber is, or is acting on behalf of, a Benefit Plan Investor or an Other Plan Investor (each, a “Plan”), as an inducement to the Company’s sale, issuance of, or consent to transfer of, the Shares to the Subscriber, the Subscriber represents and warrants that:
(1) ☐ The Subscriber has been informed of and understands the Company’s investment objectives, policies and strategies;
(2) ☐ The decision to invest in the Company was made by a fiduciary of the applicable fiduciaries Plan that have has the authority and discretion to to, and are is duly authorized to to, make such investment with appropriate consideration on behalf of relevant investment factors with regard to the Stockholder Plan (the “Fiduciary”);
(2) ☐ The Plan’s subscription for Shares contemplated hereby is duly authorized by and is consistent otherwise in accordance with the duties and responsibilities imposed upon fiduciaries with regard to their investment decisions under ERISA or other applicable lawPlan’s governing instruments;
(3) ☐ The Subscriber has the authority to invest plan assets in the Company under the appropriate investment policies and governing instruments applicable to the Stockholder for which the Subscriber is acting and under Title I of ERISA or similar applicable law;
(4) ☐ The Subscriber’s decision to invest plan assets in the Company was made solely by the applicable fiduciary(ies), following appropriate consideration of the Offering Document and the Governing Documents, and the applicable fiduciary’s duties and responsibilities as a fiduciary;
(5) ☐ The Advisor Adviser has acted not as an “investment adviser” or otherwise as a fiduciary (within the meaning of Section 3(21) of ERISA, Section 4975 of the Code or other similar law) with respect to the decision of the ERISA Stockholder or Other Plan Investor to invest in the Company or to direct the Company to enter into the Investment Advisory Agreement with the Advisor;
(6) ☐ The Advisor is responsible only for the assets of the Company and the Advisor has no responsibility or authority with respect to any other assets of the Stockholder or with respect to: (i) the contents of the employee benefit plan comprising the Stockholder and applicable trust documents, (ii) the role that the Stockholder’s investment in the Company plays in the context of the ERISA Stockholder’s overall portfolio; (iii) the composition of the Stockholder’s portfolio with regard to diversification; (iv) the liquidity and anticipated current return of the Stockholder’s portfolio relative to the anticipated cash flow requirements of the Stockholder; or (v) the projected return of the portfolio with respect to the funding objectives of the Stockholder. The Subscriber understands that this representation and warranty is being provided to the Company and the Advisor for the express purpose of assisting them in the performance of their duties with respect to the Company;
(74) ☐ The acquisition of Shares by the Subscriber will not constitute or otherwise result in the occurrence of a non-exempt prohibited transaction under Part 4 of Title I of ERISA or under the related excise tax provisions of Section 4975 of the Code, or a violation of any Similar Law applicable to the Subscriber.
(8) ☐ The Subscriber is aware of and has taken into consideration the diversification requirements of and other fiduciary duties under Section 404(a)(1) of ERISA or any other similar applicable law and have concluded that the proposed investment by the Company is a prudent one;
(95) ☐ The Subscriber has considered the investment in the Company and has determined that, in view of such considerations, the purchase of Shares is consistent with the Subscriber’s responsibilities under ERISA or Section 4975 of the Code, including (i) whether the investment in the Company is prudent; (ii) whether the investment or investment course of action is reasonably designed as part of that portion of the portfolio managed by the Subscriber, taking into account both the risk of loss and the opportunity for gain that could result therefrom; (iii) whether the Stockholder’s current and anticipated liquidity needs would be met, given the limited rights to redeem or transfer the Shares; (iv) whether the investment would permit the Stockholder’s overall portfolio to remain adequately diversified; (v) whether the investment is permitted under documents governing the Stockholder; (vi) whether the investment may result in any adverse tax consequences to the Stockholder; and (vii) the risks associated with an investment in the Company;
(10) ☐ The Subscriber Fiduciary (i) is responsible for the decision to invest in the Company; (ii) is independent of the Company, the Advisor Adviser and all of their respective affiliates; (iii) has determined that each of the Company and the Advisor is not a “party in interest” or “disqualified person” (as such terms are defined in ERISA and Section 4975 of the Code) with respect to the ERISA Stockholder; (iv) is qualified to make such investment decision and have to the extent it deems necessary has consulted its own investment advisors and legal counsel regarding the investment in the Company; and (viv) in making its decision to invest in the Company Company, has not relied on any advice or recommendation of the Company, the Advisor Adviser or any of their affiliates;
(11) ☐ The Subscriber understands and acknowledges that ERISA restricts the trading of employer securities as defined in Section 407 of ERISA (“Employer Securities”) and in connection therewith, the Subscriber, on behalf of the plan, has assumed full responsibility and liability for monitoring the plan’s compliance with Section 407 of ERISA. The Subscriber may request, at reasonable intervals, information on behalf of the investing plan to determine if and to what extent the Company invests in securities issued by the employer of the employees covered by such plan or by an affiliate of such employer;
(126) ☐ The Subscriber acknowledges that it is intended that the Company will not hold ERISA “plan assets” as defined by the Plan Assets Regulation. Accordingly, the Subscriber acknowledges that the Company has the authority to require the sale of any Shares if the continued holding of such Shares, in the opinion of the Company, could result in the Company being subject to, or violating, ERISA or Section 4975 of the Code;
(137) ☐ The Subscriber agrees to from time to time hereafter to deliver to the Company, in writing, all of the information that the Company may reasonably request in order to avoid violations of any provision of ERISA, Section 4975 of the Code or any other laws applicable to the StockholderSubscriber, and promptly will notify the Company, in writing, of any change in the information so furnished. The undersigned agrees to notify the Company promptly of any changes in the foregoing information which may occur prior to or following an investment in the Company. Name of Subscriber (please print) By: Name of Fiduciary By: (Name of Signer, Title/Capacity) Annex A Schedule 3 to Subscription Agreement: Subscriber Questionnaire for Individual Investors (including IRAs):
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Samples: Subscription Agreement (Muzinich Corporate Lending Income Fund, Inc.)
