Representations of the Purchaser. (a) You represent, and in entering into this Agreement the Company understands, that you are acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, it being understood, however, that the disposition of your property shall at all times be and remain within your control. (b) You further represent that either: (1) you are acquiring the Notes with your "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with your state of domicile; (2) no part of such funds constitutes assets of an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of section 4975(e)(1) of the Code; or (3) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plan disclosed to the Company by you as aforesaid (for the purpose of this clause (3), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used in this SECTION 3.2(b), the terms "separate account", "party-in-interest", "employer securities" and "employee benefit plan" shall have the respective meanings assigned to them in ERISA.
Appears in 2 contracts
Samples: Note Agreement (Universal Forest Products Inc), Note Agreement (Universal Forest Products Inc)
Representations of the Purchaser. (a) You represent, and in entering into this Agreement the Company understands, that you are acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, it being understood, however, ; PROVIDED that the disposition of your property shall at all times be and remain within your control.
(b) You further represent that either: at least one of the following statements concerning each source of funds to be used by you to purchase the Notes is accurate as of the Closing Date:
(1) the source of funds to be used by you are acquiring to pay the purchase price of the Notes with your is an "insurance company general accountINSURANCE COMPANY GENERAL ACCOUNT" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, exceeds exceed ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with your state of domicile; ;
(2) no part of such funds constitutes assets of an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of section 4975(e)(1) of the Code; or (3) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and (for the Company has advised you in writing (and in making the representations set forth in purpose of this clause (2), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan);
(3) all or part of such funds constitute assets of a bank collective investment fund maintained by you, and you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plan have disclosed to the Company by you the names of such employee benefit plans whose assets in such collective investment fund exceed 10% of the total assets or are expected to exceed 10% of the total assets of such fund as aforesaid of the date of such purchase (for the purpose of this clause (3), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used ;
(4) all or part of such funds constitute assets of one or more employee benefit plans, each of which has been identified to the Company in writing;
(5) you are acquiring the Notes for the account of one or more pension funds, trust funds or agency accounts, each of which is a "GOVERNMENTAL PLAN" as defined in Section 3(32) of ERISA;
(6) the source of funds is an "investment fund" managed by a "qualified professional asset manager" or "QPAM" (as defined in Part V of PTE 84-14, issued March 13, 1984), provided that no other party to the transactions described in this SECTION 3.2(bAgreement and no "affiliate" of such other party (as defined in Section V(c) of PTE 84-14) has at this time, and during the immediately preceding one year has exercised the authority to appoint or terminate said QPAM as manager of the assets of any plan identified in writing pursuant to this clause (6) or to negotiate the terms of said QPAM's management agreement on behalf of any such identified plans; or
(7) if you are other than an insurance company, all or a portion of such funds consists of funds which do not constitute "plan assets". The Company shall deliver a certificate on the Closing Date which certificate shall either state that (i) it is neither a "party in interest" (as defined in Title I, Section 3(14) of ERISA) nor a "disqualified person" (as defined in Section 4975(e)(2) of the Internal Revenue Code of 1986, as amended), the terms "separate account"with respect to any plan identified pursuant to paragraphs (2), "party-in-interest"(3) or (4) above, "employer securities" and "employee benefit plan" shall have the respective meanings assigned to them in ERISA.or (ii)
Appears in 2 contracts
Samples: Note Agreement (Nash Finch Co), Note Agreement (Nash Finch Co)
Representations of the Purchaser. (a) You represent, and in entering into this Agreement the Company understands, represent that you are acquiring purchasing the Notes for your own account, for the purpose of investment and not with a view to the resale or distribution thereof, thereof and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, it being understood, however, understood that the disposition of your property shall at all times be and remain within your control.
(b) You further represent that either: (1) no part of the funds to be used by you are acquiring to purchase the Notes with your "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, treating as a single plan, all plans constitutes assets allocated to any separate account maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with your state of domicileyou; (2) no part of the funds to be used by you to purchase the Notes constitutes assets allocated to any separate account maintained by you such that the application of such funds constitutes assets a prohibited transaction under Section 406 of an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of section 4975(e)(1) of the CodeERISA; or (3) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plan disclosed to the Company by you as aforesaid (for the purpose of this clause (3), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used in this SECTION Section 3.2(b), the terms "“separate account"”, "“party-in-interest"”, "“employer securities" ,” and "“employee benefit plan" ” shall have the respective meanings assigned to them in ERISA.
Appears in 1 contract
Samples: Note Agreement (Cabelas Inc)
Representations of the Purchaser. (a) You represent, represent and in entering into making this Agreement the Company understandssale to you it is specifically understood and agreed, that you are not acquiring the Notes for the purpose of investment and not to be purchased by you hereunder with a view to or for sale in connection with any distribution thereof within the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing meaning of the NotesSecurities Act, it being understood, however, provided that the disposition of your property shall at all times be and remain within your control.. You represent that you are an "insurance company" as defined in section 2(13) of the Securities Act. You also represent that at least one of the following statements is an accurate representation as to each source of funds (a "SOURCE") to be used by you to pay the purchase price of the Notes to be purchased by you hereunder:
(ba) You further represent that either: (1) you are acquiring the Notes with your Source is an "insurance company general account" within the meaning 22 of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, plan (treating as a single plan, plan all plans maintained by the same employer or employee organization, ) with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, plan exceeds ten percent (10%) % of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in your most recent annual statement in the NAIC Annual Statement form required by the National Association of Insurance Commissioners as filed with your state of domicile; or
(2b) no part of such funds constitutes assets of the Source is either (i) an "employee benefit plan" insurance company pooled separate account, within the meaning of Section 3(3PTE 90-1 (issued January 29, 1990), or (ii) of ERISA or a "plan" bank collective investment fund, within the meaning of section 4975(e)(1the PTE 91-38 (issued July 12, 1991) of the Code; or (3) all or a part of such funds constitute assets of one or more separate accountsand, trusts or a commingled pension trust maintained by you, and except as you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing pursuant to this paragraph (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular b), no employee benefit plan disclosed to the Company by you as aforesaid (for the purpose or group of this clause (3), all employee benefit plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or
(c) the Source constitutes assets of an "investment fund" (within the meaning of Part V of the QPAM Exemption) managed by a "qualified professional asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption), no employee benefit plan's assets that are deemed included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a Person controlling or controlled by the QPAM (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company, and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to be the Company in writing pursuant to this paragraph (c); or
(d) the Source is a single governmental plan; or
(e) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this paragraph (e); or
(f) the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA. As used in this SECTION 3.2(b)Section 9, the terms "separate accountEMPLOYEE BENEFIT PLAN", "party-in-interestGOVERNMENTAL PLAN", "employer securities" and "employee benefit planSEPARATE ACCOUNT" shall have the respective meanings assigned to them such terms in Section 3 of ERISA.
Appears in 1 contract
Samples: Note Agreement (PMC Capital Inc)
Representations of the Purchaser. (a) You represent, and in entering into this Agreement the Company Issuer understands, that (1) you are acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, Notes it being understood, however, that the disposition of your property shall at all times be and remain within your controlcontrol and (2) you are an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Securities Act.
(b) You further represent that either: (1) you are acquiring the Notes with assets from your general account and not with the assets of any separate account in which any employee benefit plan has any interest (2) the source of funds to be used by you to pay the purchase price of the Notes is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption 95-60 ("PTE") 95-60 (issued July 12, 1995) and there is no "employee benefit plan" (within the meaning of Section 3(3) of ERISA or Section 4975(e)(1) of the Code), treating as a single plan, all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, exceeds exceed ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with your state of domicile; (2) no part of such funds constitutes assets of an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of section 4975(e)(1) of the Code; domicile or (3) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust maintained by you, and you have disclosed to the Company Issuer the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the
(c) You agree that, so long as no Event of Default described in SECTIONS 7.1(A), (B), (I), (J) or (K) hereof has occurred and is continuing, you will not resell the total assets Notes purchased by you under this Agreement to a Person which, to the best of such account or accounts or trusts as your knowledge, is a Competitor. It is understood and agreed that in establishing compliance by you with the foregoing, you may rely upon the written representation of the date transferee of a Note to the effect that such purchase and the Company has advised you in writing (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company transferee is not a party-in-interest nor are Competitor.
(d) You further represent that you have not retained any brokers in connection with the Notes employer securities with respect to the particular employee benefit plan disclosed to the Company transactions contemplated by you as aforesaid (for the purpose of this clause (3), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used in this SECTION 3.2(b), the terms "separate account", "party-in-interest", "employer securities" and "employee benefit plan" shall have the respective meanings assigned to them in ERISAAgreement.
Appears in 1 contract
Representations of the Purchaser. (a) You representThe Purchaser represents, and in entering into this Agreement the Company understands, that you are the Purchaser is acquiring the Notes in a private placement for the purpose of investment and not with a view to the distribution thereof, and that you have the Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes, ; it being understood, however, that the disposition of your the Purchaser’s property shall at all times be and remain within your its control.. The Purchaser represents that it is an institutional “accredited investor” within the meaning of Rule 501 of Regulation D as promulgated under the Securities Act and at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by it to pay the purchase price of the Notes to be purchased by it hereunder:
(ba) You further represent that either: (1) you are acquiring the Notes with your "Source is an “insurance company general account" ” within the meaning of Department of Labor Prohibited Transaction Exemption ("“PTE"”) 95-60 (issued July 12, 1995) and there is no employee benefit plan, treating as a single plan, plan all plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, plan exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC National Association of Insurance Commissioners (“NAIC”) Annual Statement filed with your the Purchaser’s state of domicile; or
(2b) no part of such funds constitutes assets of the Source is either (i) an "employee benefit plan" insurance company pooled separate account, within the meaning of Section 3(3PTE 90-1 (issued January 29, 1990), or (ii) of ERISA or a "plan" bank collective investment fund, within the meaning of section 4975(e)(1the PTE 91-38 (issued July 12, 1991) of and, except as the Code; or (3) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust maintained by you, and you have Purchaser has disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing pursuant to this paragraph (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular b), no employee benefit plan disclosed to the Company by you as aforesaid (for the purpose or group of this clause (3), all employee benefit plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or
(c) the Source constitutes assets of an “investment fund” (within the meaning of Part V of the QPAM Exemption) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part V of the QPAM Exemption), no employee benefit plan’s assets that are deemed included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of “control” in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to be the Company in writing pursuant to this paragraph (c); or
(d) the Source is a single separate account that is maintained solely in connection with the Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Section IV of PTE 96-23 (the “INHAM Exemption”) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither of the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Section IV(h) of the INHAM Exemption) owns a 5% or more interest in the Company and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or
(f) the Source is a governmental plan; or
(g) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this paragraph (g); or
(h) the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA. If the Purchaser or any subsequent transferee of the Notes indicates that the Purchaser or such transferee is relying on any representation contained in paragraphs (b), (c) or (g) above, the Company shall deliver on the Closing Date and on the date of any applicable transfer a certificate, which shall either state that (i) it is neither a party in interest nor a “disqualified person” (as defined in Section 4975(e)(2) of the Code), with respect to any plan identified pursuant to paragraphs (b) or (g) above, or (ii) with respect to any plan, identified pursuant to paragraph (c) above, neither it nor any “affiliate” (as defined in Section V(c) of the QPAM Exemption) has at such time, and during the immediately preceding one year, exercised the authority to appoint or terminate said QPAM as manager of any plan identified in writing pursuant to paragraph (c) above or to negotiate the terms of said QPAM’s management agreement on behalf of any such identified plan. As used in this SECTION 3.2(b)§3.2, the terms "separate account", "party-in-interest", "employer securities" and "“employee benefit plan" ,” “governmental plan,” “party in interest” and “separate account” shall have the respective meanings assigned to them such terms in Section 3 of ERISA.
Appears in 1 contract
Samples: Note Agreement (Allied Capital Corp)
Representations of the Purchaser. (a) You represent, and in entering into this Agreement the Company understands, that you are acquiring the Notes for the purpose of investment and not with a view to the resale or distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, ; it being understood, however, that the disposition of your property shall (i) at all times be and remain within your controlcontrol and (ii) be in compliance with ss.10.2.
(b) You further represent that eitherat least one of the following statements is an accurate representation as to each source of funds (a "Source") to be used by you to pay the purchase price of the Notes to be purchased by you hereunder: (1i) you are acquiring the Notes with your Source is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) ), and there is no employee benefit plan, plan (treating as a single plan, plan all plans maintained by the same employer or employee organization, ) with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, exceeds ten percent (plan exceed 10%) % of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in your most recent annual statement in the NAIC Annual Statement form required by the National Association of Insurance Commissioners as filed with your state of domicile; or (2ii) no part of such funds constitutes assets of the Source is either (A) an "employee benefit plan" insurance company pooled separate account, within the meaning of Section 3(3XXX 00-0 (xxxxxx Xxxxxxx 00, 0000), xx (X) of ERISA or a "plan" bank collective investment fund, within the meaning of section 4975(e)(1the PTE 91-38 (issued July 12, 1991) of the Code; or (3) all or a part of such funds constitute assets of one or more separate accountsand, trusts or a commingled pension trust maintained by you, and except as you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing pursuant to this paragraph (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular ii), no employee benefit plan disclosed to the Company by you as aforesaid (for the purpose or group of this clause (3), all employee benefit plans maintained by the same employer or employee organization are deemed beneficially owns more than 10% of all assets allocated to be such pooled separate account or collective investment fund; or (iii) the Source constitutes assets of an "investment fund" (within the meaning of Part V of the QPAM Exemption) managed by a single plan). As used in this SECTION 3.2(b"qualified professional asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption), the terms "separate account", "party-in-interest", "employer securities" and "no employee benefit plan's assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part l(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of "control" shall in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company and (A) the identity of such QPAM and (B) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to the respective meanings assigned Company in writing pursuant to them in ERISA.this paragraph (iii); or (iv) the Source is a governmental plan; or
Appears in 1 contract
Representations of the Purchaser. (a) You represent, and in entering into this Agreement the Company understands, that you are acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, it being understood, however, that the disposition of your property shall at all times be and remain within your control.
(b) You further represent that either: (1) you are acquiring the Notes with your "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with your state of domicile; (2) no part of such funds constitutes assets of an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of section 4975(e)(1) of the Code; or (3) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plan disclosed to the Company by you as aforesaid (for the purpose of this clause (3), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used in this SECTION Section 3.2(b), the terms "separate account", "party-in-interest", "employer securities" and "employee benefit plan" shall have the respective meanings assigned to them in ERISA.
Appears in 1 contract
Representations of the Purchaser. (a) You represent, and in entering into this Agreement the Company understands, that you are acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, ; it being understood, however, that the disposition of your property shall at all times be and remain within your control.
(b) You further represent that eitherat least one of the following statements, concerning each source of funds to be used by you to purchase the Notes is accurate as of the Closing Date: (1i) you are acquiring the Notes with source of funds is your "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and either (x) there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, plan with respect to which the amount of the general account reserves and liabilities for all contracts the general account contract(s) held by or on behalf of such plan, employee benefit plan (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the "NAIC Annual Statement")) together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plan maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization (as defined by the NAIC Annual Statement) in the general account exceeds ten percent (10%) % of the total reserves and liabilities of such the general account (exclusive of separate account liabilities) plus surplus, surplus as set forth in the NAIC Annual Statement filed with your state of domiciledomicile (for purposes of the percentage limitation, the amount of reserves and liabilities for the general account contract(s) held by or on behalf of an employee benefit plan shall be determined before reduction for credits on account of any reinsurance ceded on a coinsurance basis) and the purchase of the Notes by you satisfies Section IV of PTE 95-60 or (y) if you are the Purchaser named in the last paragraph of Paragraph 16 of Exhibit B to this Agreement (for whom the disclosure required by such paragraph is intended), the amount of the reserves and liabilities for the interest or interests in all contracts in such general account held by or on behalf of any Covered Plan disclosed by the Company on Schedule III attached hereto and all Related Plans, if any, identified by the Company with respect thereto do not exceed 10% of the total of all reserves and liabilities of such general account (such reserves and liabilities being calculated in accordance with the provisions of PTE 95-60) plus your surplus as set forth in the NAIC Annual Statement filed with your state of domicile as of the date of the Closing, and the purchase of the Notes by you satisfies Section IV of PTE 95-60; (2ii) no part the source of such funds constitutes assets of an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of section 4975(e)(1) of the Code; or (3) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust account maintained by you, and you have disclosed to the Company in writing the names name of such each employee benefit plans plan whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plan disclosed to the Company by you as aforesaid (for the purpose of this clause (3ii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single employee benefit plan) and the purchase of the Notes by you satisfies Section III of PTE 90-1 (issued January 29, 1990); (iii) the source of funds constitutes assets of a bank collective investment fund maintained by you, and you have disclosed to the Company in writing the name of each employee benefit plan whose assets in such collective investment fund exceed 10% of the total assets or are expected to exceed 10% of the total assets of such fund as of the date of such purchase (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single employee benefit plan) and the purchase of the Notes satisfies Section III of PTE 91-38 (issued June 12, 1991); (iv) the source of funds constitutes assets of one or more employee benefit plans, each of which has been identified to the Company in writing; (v) the source of funds is assets of a "governmental plan" as defined in Section 3(32) of ERISA and Section 414(d) of the Code; (vi) the source constitutes assets of an "investment fund" (within the meaning of Part V of PTE 84-14) managed by a "qualified professional asset manager" or "QPAM" (within the meaning of Part V of PTE 84-14), no employee benefit plan's assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of PTE 84-14) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part l(c) and (g) of PTE 84-14 are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of "control" in Section V(e) of PTE 84-14) owns a 5% or more interest in the Company and you have identified this clause (vi) as such source of funds and have disclosed (A) the identity of such QPAM and (B) the names of all employee benefit plans whose assets are included in such investment fund to the Company in writing not later than two (2) Business Days prior to the Closing Date pursuant to this clause (vi); or (vii) if you are other than an insurance company, the source of funds are funds which do not constitute "plan assets". As used in this SECTION 3.2(bSection3.2(b), the terms "separate account", "party-in-interest", "employer securities" and "employee benefit plan" shall have the respective meanings assigned to them in ERISAERISA and the term "plan assets" shall have the meaning assigned to it in Department of Labor Regulation 29 C.F.R. Section2510.3-101. .c.
Appears in 1 contract
Representations of the Purchaser. (a) You represent, represent and in entering into making this Agreement the Company understandssale to you it is specifically understood and agreed, that you are not acquiring the Notes for the purpose of investment and not to be purchased by you hereunder with a view to or for sale in connection with any distribution thereof within the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing meaning of the NotesSecurities Act, it being understood, however, provided that the disposition of your property shall at all times be and remain within your control.. You represent that you are an "insurance company" as defined in section 2(13) of the Securities Act. You also represent that at least one of the following statements is an accurate representation as to each source of funds (a "SOURCE") to be used by you to pay the purchase price of the Notes to be purchased by you hereunder:
(ba) You further represent that either: (1) you are acquiring the Notes with your Source is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, plan (treating as a single plan, plan all plans maintained by the same employer or employee organization, ) with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, plan exceeds ten percent (10%) % of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in your most recent annual statement in the NAIC Annual Statement form required by the National Association of Insurance Commissioners as filed with your state of domicile; or
(2b) no part of such funds constitutes assets of the Source is either (i) an "employee benefit plan" insurance company pooled separate account, within the meaning of Section 3(3PTE 90-1 (issued January 29, 1990), or (ii) of ERISA or a "plan" bank collective investment fund, within the meaning of section 4975(e)(1the PTE 91-38 (issued July 12, 1991) of the Code; or (3) all or a part of such funds constitute assets of one or more separate accountsand, trusts or a commingled pension trust maintained by you, and except as you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing pursuant to this paragraph (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular b), no employee benefit plan disclosed to the Company by you as aforesaid (for the purpose or group of this clause (3), all employee benefit plans maintained by the same employer or employee organization are deemed beneficially owns more than 10% of all assets allocated to be such pooled separate account or collective investment fund; or
(c) the Source constitutes assets of an "investment fund" (within the meaning of Part V of the QPAM Exemption) managed by a single plan). As used in this SECTION 3.2(b"qualified professional asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption), the terms "separate account", "party-in-interest", "employer securities" and "no employee benefit plan" shall have 's assets that are included in such investment fund, when combined with the respective meanings assigned to them in ERISA.assets of all other employee benefit plans established or
Appears in 1 contract
Samples: Note Agreement (PMC Capital Inc)
Representations of the Purchaser. You represent as follows:
(a) You representare either (A) an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) promulgated by the SEC under the Securities Act or (B) a “Qualified Institutional Buyer” as defined in Rule 144A under the Securities Act, in either case, with such knowledge and experience in entering into this Agreement financial and business matters as necessary in order to evaluate the Company understands, merits and risks of an investment in the Notes.
(b) You represent that you are acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, Notes in violation of the Securities Act; it being understood, however, that the disposition of your property shall at all times be and remain within your control.
(bc) You further represent that either: at least one of the following statements is an accurate representation as to each source of funds (1a “Source”) to be used by you to pay the purchase price of the Notes to be purchased by you hereunder:
(i) if you are acquiring an insurance company, the Notes Source does not include assets allocated to any separate account maintained by you in which any employee benefit plan (or its related trust) has any interest, other than a separate account that is maintained solely in connection with your "fixed contractual obligations under which the amounts payable, or credited, to such plan and to any participant or beneficiary of such plan (including any annuitant) are not affected in any manner by the investment performance of the separate account; or
(ii) the Source is either (A) an insurance company general pooled separate account" , within the meaning of Department of Labor Prohibited Transaction Exemption ("“PTE"”) 9590-60 1 (issued January 29, 1990), or (B) a bank collective investment fund, within the meaning of the PTE 91-38 (issued July 12, 19951991) and there is no employee benefit planand, treating except as a single plan, all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with your state of domicile; (2) no part of such funds constitutes assets of an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of section 4975(e)(1) of the Code; or (3) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing (and in making the representations set forth in pursuant to this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular ii), no employee benefit plan disclosed to the Company by you as aforesaid (for the purpose or group of this clause (3), all employee benefit plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or
(iii) the Source constitutes assets of an “investment fund” (within the meaning of Part V of PTE 84-14 (the “QPAM Exemption”) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part V of the QPAM Exemption), no employee benefit plan’s assets that are deemed included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of “control” in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to be the Company in writing pursuant to this clause (iii); or
(iv) the Source is a single governmental plan; or
(v) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (v); or
(vi) the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA. As used in this SECTION 3.2(b)Section 4.2, the terms "separate account", "party-in-interest", "employer securities" and "“employee benefit plan" ”, “governmental plan”, “party in interest” and “separate account” shall have the respective meanings assigned to them such terms in Section 3 of ERISA.
Appears in 1 contract
Representations of the Purchaser. (a) You representThe Purchaser represents, and in entering into this Agreement the Company understands, that you are the Purchaser is acquiring the Notes in a private placement for the purpose of investment and not with a view to the distribution thereof, and that you have the Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes, ; it being understood, however, that the disposition of your the Purchaser's property shall at all times be and remain within your its control.. The Purchaser represents that it is an institutional "accredited investor" within the meaning of Rule 501 of Regulation D as promulgated under the Securities Act and at least one of the following statements is an accurate representation as to each source of funds (a "SOURCE") to be used by it to pay the Purchase Price:
(ba) You further represent that either: (1) you are acquiring the Notes with your Source is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, treating as a single plan, plan all plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, plan exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with your the Purchaser's state of domicile; or
(2b) no part of such funds constitutes assets of the Source is either (i) an "employee benefit plan" insurance company pooled separate account, within the meaning of Section 3(3PTE 90-1 (issued January 29, 1990), or (ii) of ERISA or a "plan" bank collective investment fund, within the meaning of section 4975(e)(1the PTE 91-38 (issued July 12, 1991) of and, except as the Code; or (3) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust maintained by you, and you have Purchaser has disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing pursuant to this paragraph (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular b), no employee benefit plan disclosed to the Company by you as aforesaid (for the purpose or group of this clause (3), all employee benefit plans maintained by the same employer or employee organization are deemed beneficially owns more than 10% of all assets allocated to be such pooled separate account or collective investment fund; or
(c) the Source constitutes assets of an "investment fund" (within the meaning of Part V of the QPAM Exemption) managed by a single plan). As used in this SECTION 3.2(b"qualified professional asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption), the terms "separate account", "party-in-interest", "employer securities" and "no employee benefit plan's assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of "control" shall in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to the respective meanings assigned Company in writing pursuant to them in ERISA.this paragraph (c); or
Appears in 1 contract
Samples: Note Agreement (Allied Capital Corp)
Representations of the Purchaser. (a) You represent, and in entering into this Agreement the Company understands, that you are acquiring the Notes for the purpose of investment and not with a view to the resale or distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, it being understood, however, ; provided that the disposition of your property shall at all times be and remain within your control.
(b) . You understand that the Notes have not been registered under the Securities Act of 1933, as amended, or the "blue sky" or securities laws of any state or jurisdiction of the United States, and may be transferred only if so registered or if an exemption therefrom is available. You further understand that the Company is not required to so register the Notes. You further represent that eitherat least one of the following statements is an accurate representation as to the source of funds to be used by you to purchase the Notes: (1a) you are acquiring the Notes with your such source of funds is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) ), and there is no you have disclosed to the Company the names of such employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, exceeds ten percent (plan exceed or are expected to exceed 10%) % of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in your most recent annual statement in the NAIC Annual Statement form required by the National Association of Insurance Commissioners as filed with your state of domicile, as of the date of purchase (for the purpose of this clause (a), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan); (2) no part of such funds constitutes assets of an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of section 4975(e)(1) of the Code; or (3b) all or a part of such funds constitute assets of one or more insurance company separate accounts, employee benefit plan trusts or a commingled pension employee benefit plan trust maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such separate account or accounts or trusts as of the date of such purchase and the Company has advised you in writing (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plan disclosed to the Company by you as aforesaid (for the purpose of this clause (3b), all employee benefit plans maintained by the same employer or employee organization and invested in any such separate account or accounts are deemed to be a single plan). As used in this SECTION 3.2(b), the terms "separate account", "party-in-interest", "employer securities" and "employee benefit plan" shall have the respective meanings assigned to them in ERISA.;
Appears in 1 contract
Representations of the Purchaser. (a) 6.1 Purchase for Investment1 You represent, and in entering into this Agreement the Company understands, represent that you are acquiring purchasing the Notes for your own account or for one or more separate accounts maintained by you or for the purpose account of investment one or more pension or trust funds and not with a view to the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, it being understood, however, provided that the disposition of your or their property shall at all times be and remain within your or their control. You understand that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes.
(b) 6.2 Source of Funds You further represent that eitherat least one of the following statements is an accurate representation as to each source of funds (a "Source") to be used by you to pay the purchase price of the Notes to be purchased by you hereunder: (1a) you are acquiring the Notes with your Source is an "insurance company general account" within the meaning of as defined in United States Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued 60 FR 35925, July 12, 1995) and in respect thereof you represent that there is no "employee benefit plan" (as defined in section 3(3) of ERISA and section 4975(e)
(1) of the Code, treating as a single plan, plan all plans maintained by the same employer or employee organization, organization or affiliate thereof) with respect to which the amount of the general account reserves and liabilities for of all contracts held by or on behalf of such plan, plan exceeds ten percent (10%) % of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC National Association of Insurance Commissioners' Annual Statement filed with your state of domicile; or (2b) no part if you are an insurance company, the Source does not include assets allocated to any separate account maintained by you in which any employee benefit plan (or its related trust) has any interest, other than a separate account that is maintained solely in connection with your fixed contractual obligations under which the amounts payable, or credited, to such plan and to any participant or beneficiary of such funds constitutes assets plan (including any annuitant) are not affected in any manner by the investment performance of the separate account; or (c) the Source is either (i) an "employee benefit plan" insurance company pooled separate account, within the meaning of Section 3(3PTE 90-1 (issued January 29, 1990), or (ii) of ERISA or a "plan" bank collective investment fund, within the meaning of section 4975(e)(1the PTE 91-38 (issued July 12, 1991) of the Code; or (3) all or a part of such funds constitute assets of one or more separate accountsand, trusts or a commingled pension trust maintained by you, and except as you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing pursuant to this paragraph (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular c), no employee benefit plan disclosed to the Company by you as aforesaid (for the purpose or group of this clause (3), all employee benefit plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or (d) the Source constitutes assets of an "investment fund" (within the meaning of part V of PTE 84-14 (the "QPAM Exemption")) managed by a "qualified professional asset manager" or "QPAM" (within the meaning of part V of the QPAM Exemption), no employee benefit plan's assets that are deemed included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of "control" in section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to be the Company in writing pursuant to this paragraph (d); or (e) the Source is a single governmental plan; or (f) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this paragraph (f); or (g) the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA. As used in this SECTION 3.2(b)Section 6.2, the terms "separate accountemployee benefit plan", "party-in-interest", "employer securitiesgovernmental plan" and "employee benefit planseparate account" shall have the respective meanings assigned to them such terms in Section 3 of ERISA.
Appears in 1 contract
Samples: Note Purchase Agreement (Optical Coating Laboratory Inc)
Representations of the Purchaser. (a) You represent, and in entering into this Agreement the Company understands, that (i) you are an "accredited investor" within the meaning of Regulation D promulgated by the Securities and Exchange Commission and (ii) you are acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, it being understood, however, ; provided that the disposition of your property Property shall at all times be and remain within your control.
(b) You further represent that either: (1) at least one of the following statements concerning each source of funds to be used by you are acquiring to purchase the Notes with your is accurate as of each of the Closing Dates:
(i) the source of funds to be used by you to pay the purchase price of the Notes is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption 95-60 ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect to which the amount purchase of the general account reserves Notes by you is eligible for and liabilities for all contracts held by or on behalf satisfies the requirements of such plan, exceeds ten percent PTE 95-60;
(10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with your state of domicile; (2) no part of such funds constitutes assets of an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of section 4975(e)(1) of the Code; or (3ii) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plan disclosed to the Company by you as aforesaid (for the purpose of this clause (3ii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan);
(iii) all or part of such funds constitute assets of a bank collective investment fund maintained by you, and you have disclosed to the Company names of such employee benefit plans whose assets in such collective investment fund exceed 10% of the total assets or are expected to exceed 10% of the total assets of such fund as of the date of such purchase (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan);
(iv) all or part of such funds constitute assets of one or more employee benefit plans, each of which has been identified to the Company in writing;
(v) you are acquiring the Notes for the account of one or more pension funds, trust funds or agency accounts, each of which is a "governmental plan" as defined in Section 3(32) of ERISA;
(vi) the source of funds is an "investment fund" managed by a "qualified professional asset manager" or "QPAM" (as defined in Part V of PTE 84-14, issued March 13, 1984), provided that no other party to the transactions described in this Agreement and no "affiliate" of such other party (as defined in Section V(c) of PTE 84-14) has at this time, and during the immediately preceding one year has exercised the authority to appoint or terminate said QPAM as manager of the assets of any plan identified in writing pursuant to this clause (vi) or to negotiate the terms of said QPAM's management agreement on behalf of any such identified plans; or
(vii) if you are other than an insurance company, all or a portion of such funds consists of funds which do not constitute "plan assets". The Company shall deliver a certificate on each of the Closing Dates which certificate shall either state that (A) it is neither a "party in interest" (as defined in Title I, Section 3(14) of ERISA) nor a "disqualified person" (as defined in Section 4975(e)(2) of the Internal Revenue Code of 1986, as amended), with respect to any plan identified pursuant to paragraphs (ii), (iii) or (iv) above, or (B) with respect to any plan identified pursuant to paragraph (vi) above, neither it nor any "affiliate" (as defined in Section V(c) of PTE 84-14) is described in the proviso to said paragraph (vi). As used in this SECTION 3.2(bss.3.2(b), the terms "separate account", "party-in-interest", "employer securities" and "employee benefit plan" shall have the respective meanings assigned to them in ERISAERISA and the term "plan assets" shall have the meaning assigned to it in Department of Labor Regulation 29 C.F.R. ss.2510.3-101.
Appears in 1 contract
Samples: Note Agreement (Professional Lease Management Income Fund I LLC)
Representations of the Purchaser. (a) You represent, and in entering into this Agreement the Company understands, represent that you are acquiring purchasing the Notes Bonds for your own account or for one or more separate accounts maintained by you or for the purpose account of investment one or more pension or trust funds and not with a view to the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes, it being understood, however, PROVIDED that the disposition of your or their property shall at all times be and remain within your or their control. You understand that the Bonds have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Bonds.
(b) You further represent that either: at least one of the following statements is an accurate representation as to each source of funds (1a "SOURCE") to be used by you are acquiring to pay the Notes with your purchase price of the Bonds to be purchased by you hereunder:
(i) the Source is an "insurance company general account" within and there is no employee benefit plan with respect to which the meaning amount, if any, of Department such general account's reserves and liabilities for all contracts held by or on behalf of Labor such plan and all other plans maintained by the same employer or its affiliates or by the same employee organization exceeds 10% of the total of all reserves and liabilities of such general account at the date of purchase (all as determined under Prohibited Transaction Class Exemption ("PTE") 95-60 (issued July 12, 1995)); or
(ii) and there the Source is no employee benefit planeither (i) an insurance company pooled separate account, treating as a single plan, all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with your state of domicile; (2) no part of such funds constitutes assets of an "employee benefit plan" within the meaning of Section 3(3Prohibited Transaction Exemption ("PTE") of ERISA or a "plan" within the meaning of section 4975(e)(1) of the Code; 90-1 (issued January 29, 1990), or (3ii) all or a part of such funds constitute assets of one or more separate accountsbank collective xxxxxxxxxx xxxx, trusts or a commingled pension trust maintained by youxxxxxx xxx xxxxxxx xx xxx PTE 91-38 (issued July 12, and 1991) and, except as you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing pursuant to this paragraph (and in making the representations set forth in this clause (3) you are relying on such advice) that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular b), no employee benefit plan disclosed to the Company by you as aforesaid (for the purpose or group of this clause (3), all employee benefit plans maintained by the same employer or employee organization are deemed beneficially owns more than 10% of all assets allocated to be such pooled separate account or collective investment fund; or
(iii) the Source constitutes assets of an "investment fund" (within the meaning of Part V of the QPAM Exemption) managed by a single plan). As used in this SECTION 3.2(b"qualified professional asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption), the terms "separate account", "party-in-interest", "employer securities" and "no employee benefit plan's assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part l(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of "control" shall in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to the respective meanings assigned Company in writing pursuant to them in ERISA.this paragraph (c); or
Appears in 1 contract
Samples: Bond Purchase Agreement (Biw LTD)
