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EXHIBIT (10)(ii)
FORM OF SUBSCRIPTION AGREEMENT
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Access Capital Strategies Community Investment Fund, Inc.
FORM OF SUBSCRIPTION AGREEMENT
The undersigned (the "Subscriber"), hereby subscribes to purchase
shares of Common Stock, $0.001 par value ("Shares"), issued by Access Capital
Strategies Investment Fund, Inc., a Maryland corporation (the "Fund"), in the
amount set forth on the signature page below (the "Commitment"), on the terms
and conditions set forth herein. Capitalized terms used and not defined in
this Agreement have the meanings assigned to them in the Private Offering
Memorandum ("Memorandum") referred to below.
1. SALE AND PURCHASE OF SHARES. Subject to the terms and
conditions set forth in this Agreement, and in reliance upon the
representations and warranties of the respective parties set forth in this
Agreement, the Fund hereby agrees to sell to the Subscriber, and the Subscriber
irrevocably subscribes for and agrees to purchase from the Fund, Shares in the
amount of its Commitment.
2. ACCEPTANCE OF SUBSCRIPTION. This subscription, if submitted
to the Fund on or before December 31, 2002 (the "Offering Termination Date"),
is subject to acceptance by the Fund with respect to the Commitment subscribed
for herein, or such smaller Commitment as the Fund may, in its sole discretion,
determine, at a closing to be held on such date on or before December 31, 2002
as is designated by the Fund ("Closing"). The Fund may hold one or more
Closings involving different investors on or before December 31, 2002. At the
Closing, the Fund shall execute and deliver to the Subscriber a duplicate
original of this Agreement indicating the amount of the Commitment as to which
the Subscription has been accepted, which shall thereafter be deemed the
Subscriber's Commitment for all purposes hereunder. This subscription shall
expire if and to the extent not accepted by the Fund on or before December 31,
2002.
3. CLOSING CALLS. Subscriber agrees to purchase Shares with a
purchase price equal to the amount of the Subscriber's Commitment, in one or
more installments and in the amounts and on the dates specified by the Fund in
one or more written notices ("Closing Call") conforming to the requirements of
this Agreement. Except as otherwise stated below, the purchase price of the
Shares purchased pursuant to each Closing Call will be the Fund's net asset
value per Share ("Net Asset Value") on the date of each purchase, as determined
in conformity with the requirements of the Investment Company Act of 1940, as
amended ("1940 Act").
Closing Calls shall be deemed made when mailed to the Subscriber not
later than 15 days before the date for the purchase of Shares specified in the
Closing Call, by first class mail to the Subscriber's address specified on the
signature page of this Agreement or such other address as the Subscriber shall
notify the Fund in writing. No Closing Call shall be made after December 31,
2002, and any uncalled portion of the Subscriber's Commitment as of that date
will lapse as to the uncalled portion of the Commitment.
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4. MANNER OF PAYMENT. Payments made to purchase Shares specified
in a Closing Call shall be made on or before the payment date specified in the
Closing Call therefore (the "Payment Date"). Payments shall be made by wire
transfer in accordance with the following instructions:
Federal Reserve Bank of Boston
Boston Safe Deposit & Trust
ABA#: 000000000
DDA#: 108111
For: Acct. ETIF1001-00-2
5. PAYMENT DEFAULT. If a payment for the purchase of shares is
received by the Fund from the Subscriber later than 14 days after the Payment
Date, interest will be charged on the overdue amount, calculated at a daily
rate equal on an annualized basis to four percentage points over the highest
rate of interest reported from time to time as "prime rate" by The Wall Street
Journal (provided that, if such rate is in excess of the maximum rate of
interest permitted by law, interest will be charged at such maximum rate). If
a default in a payment under this Subscription Agreement (including interest
charges) remains uncured for 30 days following a payment date, the Fund may, at
its option, pursue any or all of the following remedies: (i) cancel the balance
of the Subscriber's subscription (including the installment as to which the
Subscriber had defaulted), (ii) assign the remaining balance of the
Subscriber's subscription (including the installment as to which the Subscriber
has defaulted) to another investor selected by the Fund and/or (iii) repurchase
the Shares then owned by the Subscriber at a purchase price per Share equal to
the lesser of 90% of the Shares' then-current Net Asset Value or the prices at
which the Subscriber purchased the Shares. The election by the Fund to pursue
one or more of these remedies will not preclude the Fund from pursuing any
rights it may have to seek judicial enforcement of the Subscriber's
subscription obligation.
6. RESTRICTION ON ASSIGNMENT OF SUBSCRIPTION AGREEMENT. Except
as provided in Section 5 hereof with respect to rights of the Fund, neither
this Agreement nor any rights or interests herein may be assigned by the
Subscriber or by the Fund nor may the obligations of the Subscriber be assumed
or performed by another, other than a successor to the entire business and
affairs of the Subscriber, without the express prior written consent of the
Fund. The Fund may withhold consent to the assignment of this Agreement in its
sole discretion.
7. RESTRICTION ON TRANSFER OR ASSIGNMENT OF SHARES. Neither the
Shares to be issued hereunder nor any right or interest therein may be sold,
assigned, pledged, or otherwise transferred by the Subscriber without the
consent of the Fund. The Fund may withhold consent to a proposed transfer if
the Fund reasonably determines that any of the following requirements are not
met:
(i) The transfer is made to an institution who the Fund determines
would have been eligible to participate in the initial offering of the
Shares, in a transaction that, in the opinion of counsel for the
Subscriber and counsel for the Fund, complies with the requirements of
the Securities Act of 1933 (the "1933 Act") and any applicable state
securities laws;
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(ii) The transfer is made in a transaction that the Fund determines,
after consideration of an opinion of counsel for the proposed
transferee and such additional counsel as the Fund may wish to consult
on the matter, will not make it more difficult for the Fund to comply
with the requirements applicable to the Fund and its operations of the
1933 Act, applicable state securities laws, the 1940 Act, the Internal
Revenue Code of 1986, as amended (the "Code") or the Employee
Retirement Income Security Act of 1974 ("ERISA"); and
(iii) The transfer is made to a transferee who agrees to be bound by
all the provisions of this Agreement that pertain to an owner of
Shares.
To facilitate compliance with Section 6 and this Section 7 and with
the pertinent provisions of the Articles of Incorporation of the Fund, the
Subscriber will not effect a transaction restricted by either such Section
without advance notice to the Fund and prior written approval by the Fund.
8. REPRESENTATIONS AND WARRANTIES OF THE FUND. The Fund
represents and warrants that:
(i) The Fund is duly organized, validly existing, and in good
standing under the laws of the State of Maryland and has the power and
authority to carry on its business as now conducted and as proposed to
be conducted in the Fund's Private Offering Memorandum ("Memorandum")
and to issue the Shares subscribed for hereby. This Agreement and any
other documents executed and delivered by the Fund in connection
herewith have been duly authorized, executed, and delivered by the
Fund, and are the legal, valid, and binding obligations of the Fund
enforceable in accordance with their respective terms.
(ii) The execution and delivery of this Agreement and any other
documents executed and delivered by the Fund in connection herewith do
not, and the performance and consummation of the transactions set
forth or contemplated herein will not, contravene or result in a
default under any provision of existing law or regulations to which
the Fund is subject, the provisions of the trust instrument, charter,
by-laws, or other governing documents of the Fund or any indenture,
mortgage, or other instrument or agreement to which the Fund is a
party or by which it is bound and does not require on the part of the
Fund any approval, authorization, license, or filing from or with any
federal, state, municipal, or foreign board or agency (except such
approvals, authorizations, licenses, or filings as have been obtained
or made).
(iii) The Fund has filed an election with the Securities and Exchange
Commission, pursuant to Section 54(a) of the 1940 Act, to be subject
to the provisions of Sections 55 through 65 of the 1940 Act.
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9. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. The Subscriber
represents and warrants that:
(i) The Subscriber is duly organized, validly existing, and in good
standing under the laws of the jurisdiction wherein it is organized
and has the power and authority to carry on the activities in which it
is engaged and to purchase the Shares subscribed for hereby. This
Agreement and any other documents executed and delivered by the
Subscriber in connection herewith have been duly authorized, executed,
and delivered by the Subscriber, and are the legal, valid, and binding
obligations of the Subscriber enforceable in accordance with their
respective terms.
(ii) The execution and delivery of this Agreement and any other
documents executed and delivered by the Subscriber in connection
herewith do not, and the performance and consummation of the
transactions set forth or contemplated herein will not, contravene or
result in a default under any provision of existing law or regulations
to which the Subscriber is subject, the provisions of the trust
instrument, charter, by-laws, or other governing documents of the
Subscriber, or any indenture, mortgage, or other instrument or
agreement to which the Subscriber is a party or by which it is bound
and does not require on the part of the Subscriber any approval,
authorization, license, or filing from or with any federal, state,
municipal, or foreign board or agency (except such approvals,
authorizations, licenses, or filings as have been obtained or made).
(iii) The Subscriber, if an employee benefit plan as defined in ERISA
(an "ERISA Plan"), has caused this Agreement to be executed by one or
more of its fiduciaries thereunto duly authorized and, such
fiduciaries, by executing and delivering this Agreement on behalf of
such ERISA Plan, represent and warrant that (A) they and their
co-fiduciaries, if any, have been informed of the Fund's investment
objectives, policies, and strategies; (B) the decision to invest plan
assets in the Fund was made with appropriate consideration of relevant
investment factors with regard to such ERISA Plan; and (C) such
decision was made by such fiduciaries without reliance on any
investment advice or recommendation provided by the Fund or its
Manager, and is consistent with the duties and responsibilities
imposed upon fiduciaries with regard to their investment decisions
under ERISA.
(iv) The Shares being subscribed for by the Subscriber will be
purchased for the account of the Subscriber for investment only and
not with a view to, or with any intention of, a distribution or resale
thereof, in whole or in part, or the grant of any participation
therein. The Subscriber acknowledges that the Shares have not been
registered under the 1933 Act or any state securities laws, and cannot
be disposed of unless they are subsequently registered under the 1933
Act and any applicable state securities laws, or an exemption from
registration is available. The Subscriber further understands that
the Fund is not obligated to file a registration statement or a
notification of registration under the 1933 Act or any state
securities law and has no intention to do so, nor does the Fund have
any other obligation to
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take or refrain from taking any action that would make available any
exemption for the sale of Shares without registration.
(v) The Subscriber acknowledges that the Fund will accept this
subscription, and issue the Shares in a transaction intended to be
exempt from registration under the 1933 Act under Regulation D
thereunder, in reliance upon the information provided by the
Subscriber in its Prospective Subscriber Questionnaire
("Questionnaire"), including information supporting the Fund's
treatment of Subscriber as an "accredited investor" under Regulation
D. The Subscriber represents and warrants that all information that
the Subscriber has provided to the Fund concerning the qualifications
of the Subscriber, including information furnished in the Prospective
Subscriber Questionnaire, is correct and complete as of the date of
this subscription.
(vi) The Subscriber has received and carefully reviewed the
Memorandum and understands that any information provided other than in
the Memorandum has been furnished on the understanding that the
Subscriber will refer to the Memorandum for an authoritative statement
on all matters covered therein with respect to the Fund and other
information concerning the Offering. The Subscriber has had a
reasonable time and opportunity to ask questions and receive answers
concerning the terms and conditions of the offering and the proposed
operations of the Fund, and has received responses to such questions
that it has chosen to ask.
(vii) The Subscriber recognizes that an investment in the Fund
involves certain risks and it has taken full cognizance of and
understands the risk factors relating to a purchase of Shares,
including those set forth under the headings "Risk Factors" in the
Memorandum. The Subscriber is capable of bearing a high degree of
risk, including the possibility of a loss of its investment and the
lack of a public market such that it will not be possible to readily
liquidate the investment. The Subscriber has such knowledge and
experience in business and financial matters as to be capable of
evaluating the merits and risks of an investment in the Shares and
protecting its own interest in connection with the investment in the
Shares.
(viii) The Subscriber acknowledges that it has not relied upon the
Fund, its Manager, or any of their employees, directors, officers, or
agents for any investment, tax, legal, or ERISA advice in connection
with its purchase of Shares and that the Subscriber has consulted, to
the extent necessary, its own advisers with respect to the investment,
tax, legal, or ERISA considerations of a purchase of Shares.
(ix) The Subscriber acknowledges that there have been no guarantees
or warranties made to it by the Fund, its Manager, or any of their
employees, directors, officers, or agents, expressly or by
implication, other than as contained in the Memorandum, with respect
to (i) the approximate length of time that it will be required to
remain an owner of its shares; or (ii) the percentage of profit and/or
the amount or type of consideration, profit, or loss to be realized as
a result of its investment.
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10. COVENANTS OF THE SUBSCRIBER. The Subscriber agrees with the
Fund that:
(i) For so long as the Subscriber owns Shares, the Subscriber shall,
upon request, disclose to the Fund such information with respect to
direct or indirect holdings for such Shares as the Fund deems
necessary to comply with provisions of the Code applicable to the
Fund, to comply with requirements of any other appropriate taxing
authority, to comply with the provisions of the Securities Exchange
Act of 1934 or to comply with the provisions of the 1940 Act, as any
of said laws may be amended from time to time.
(ii) The Subscriber, if an ERISA Plan, will furnish to the Fund
promptly upon its request the information called for by applicable
"prohibited transaction" regulations of the Department of Labor and
any other information with respect to Subscriber's parties in interest
as the Fund may reasonably require.
(iii) The Subscriber will indemnify and hold the Fund harmless from
and against any and all loss, damage, or liability due to or arising
out of a breach of any representation or warranty of the Subscriber in
this Agreement or any other document furnished by it to the Fund.
13. NOTICES. The address of the Subscriber for all purposes shall
be the address set forth on the signature page to this Agreement, or such other
address of which the Fund has received notice in accordance with the provisions
hereof. The address of the Fund for all purposes shall be 000 Xx. Xxxxxx
Xxxxxx, Xxxxx 000X, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, attention Xxxxx X. Sand,
or such other address of which the Subscriber has received notice in accordance
with the provisions hereof. Any notice or communication to be given under this
Agreement shall be made in writing and, unless otherwise herein provided, shall
be deemed to have been given when sent by first class mail to such party at
such address.
14. APPLICABLE LAW. This agreement and the rights and obligations
of the parties hereunder shall be construed in accordance with and governed by
the laws of the State of Maryland.
15. COUNTERPARTS; OTHER AGREEMENTS. This Agreement may be executed
in any number of counterparts, and each of such counterparts shall, for all
purposes, constitute one agreement binding on all the parties, notwithstanding
that all parties are not signatories to the same counterpart.
16. MISCELLANEOUS. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties and
their heirs, executors, administrators, successors, legal representatives, and
assigns. This Agreement constitutes the entire agreement among the parties
pertaining to the subject matter contained in this Agreement and supersedes all
prior understandings of the parties. The invalidity or unenforceability of any
one provision of this Agreement shall in no way affect the validity of any
other provision, and all other provisions shall remain in full force and
effect. No waiver by any party of any breach of any term hereof shall be
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construed as a waiver of any subsequent breach of that term or any other term
of the same or of a different nature.
20. TAX CERTIFICATION. The Subscriber certifies that (1) the
taxpayer identification provided above the Subscriber signature is correct and
(2) the Subscriber is not subject to backup withholding because (i) the
Subscriber has not been notified that the Subscriber is subject to backup
withholding as a result of failure to report interest and dividends or (ii) the
Internal Revenue Service has not notified the Subscriber that the Subscriber is
subject to backup withholding. [Strike out clause (2) if incorrect.]
IN WITNESS WHEREOF, this Agreement has been executed by the Subscriber
as of the date of the Subscriber's signature set forth on the attached
signature page and, if accepted by the Fund, becomes an Agreement binding on
the Fund as of the date of the signature signifying acceptance set forth on the
attached signature page.
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ACCESS CAPITAL STRATEGIES COMMUNITY INVESTMENT FUND, INC.
The information requested in this Questionnaire is needed to determine
whether the undersigned's subscription to purchase shares of Common Stock,
$.001 par value ("Shares"), of Access Capital Strategies Community Investment
Fund, Inc. (the "Fund") may be accepted.
I. GENERAL INFORMATION
(a) Subscriber:
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Exact Name of Subscriber:
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Taxpayer Identification Number:
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Address:
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Mailing Address (if different):
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Telephone:
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State in Which Incorporated:
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Date of Incorporation:
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Number of Shareholders:
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Name of Officer Signing for
Subscriber:
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Address of Signing Officer, if
Different Than Subscriber Address:
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II. CORPORATION QUALIFICATION
a) [ ] The Subscriber is either:
-- a corporation or endowment that has total assets in excess
of $5,000,000 and was not formed for the purpose of investing
in the Shares; or
--a bank, as defined in Section 3(a)(2) of the Securities Act
of 1933 (the "1933 Act") or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the
1933 Act, whether acting in its individual or fiduciary
capacity; or
--a qualified insurance company; or
--an organization described in Section 501(c)(3) of the
Internal Revenue Code with total assets in excess of
$5,000,000.
b) [ ] Each Shareholder of the Subscriber is a natural person who:
--Has an individual net worth* or joint net worth with the
grantor's spouse of at least $1,000,000; or
--Has had an individual income* in excess of $200,000 in each
of the past two years and reasonably expects an individual
income in excess of $200,000 in the current year; or
--Has had, together with the Partner's spouse, a joint income
in excess of $300,000 in each of the past two years and
reasonably expects a joint income in excess of $300,000 in the
current year.
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* "Net worth" means the excess of total assets over total
liability. "Income" means adjusted gross income plus (a) any tax-exempt income
received, (b) losses reported as a limited partner in a limited partnership,
(c) deductions claimed for depletion, (d) contributions to an individual
retirement account or Xxxxx retirement plan, (e) alimony payments, and (f) any
amounts by which income from long-term capital gains has been reduced in
arriving at adjusted gross income.
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c) [ ] Each Shareholder of the Subscriber is:
--a bank, as defined in Section 3(a)(2) of the Securities Act
of 1933 (the "1933 Act") or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the
1933 Act, whether acting in its individual or fiduciary
capacity; or
--a qualified insurance company; or
-- an employee benefit trust within the meaning of Title I of
the Employee Retirement Income Security Act of 1974 ("ERISA"),
if (1) the investment decision is made by a plan fiduciary, as
defined in Section 3 (21) of ERISA and such plan fiduciary is
either a bank, savings and loan association, insurance company
or registered investment adviser, (2) such employee benefit
plan has total assets in excess of $5,000,000, or (3) such
plan is a self-directed plan with investment decisions made
solely by persons who are accredited investors (as described
in (b) above); or
-- a plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or
its political subdivisions, for the benefit of its employees,
if such plan has total assets in excess of $5,000,000; or
--a corporation, Massachusetts or similar business trust,
partnership or organization described in Section 501(c)(3) of
the Internal Revenue Code, not formed for the purpose of
investing in the Shares, with total assets in excess of
$5,000,000.
d) [ ] Each Shareholder of the Subscriber is a person or entity
described in either (b) or (c) above. [If this box is
checked, please answer the following:]
Number of shareholders described in (b) above: ____
Number of shareholders described in (c) above: ____
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III. CERTIFICATION AND SIGNATURE
By signing this Questionnaire, the Subscriber hereby confirms that (a) the
answers of the Subscribers to the foregoing questions are true and complete to
the best of the information and belief of the Subscriber, (b) if any
representation is made as to the financial condition of shareholders of the
Subscriber, the Subscriber has made such reasonable investigation as is
required to ascertain that such representations are correct, and will provide
the Fund additional information about the financial condition of such
shareholders upon request, and (c) the Fund will be notified promptly of any
changes in the foregoing answers.
CORPORATION/ENDOWMENT SIGNATURE:
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NAME OF SIGNATORY:
TITLE OF SIGNATORY:
DATE:
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ADDENDUM NO. ___ TO
SUBSCRIPTION AGREEMENT
SELECTION OF DESIGNATED TARGET REGION
I, ____________________________, the undersigned Subscriber, hereby
select the following as the Designated Target Region for my investment:
CHECK ONE:
[ ] The State of ________________________.
[ ] The multi-state region including ______________________.
[ ] The metropolitan area of ____________________________.
[ ] The entire United States.
I understand that this choice is irrevocable, provided, however, that
in the event that, in the opinion of Management, suitable investments can not
be found in the Designated Target Region within a period of _______________, I
may either select a new Designated Target Region or select an alternate
existing Designated Target Region for the reallocation of my investment. I
understand that Management will endeavor to invest in private placement debt
securities within my Designated Target Region, but there is no guarantee that
Management will be able to do so.
Signed: Approved:
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Subscriber Access Capital Strategies
Investment Fund, Inc.
