SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT
(this “Agreement”) dated as
of July 8, 2010 is entered into by and between Business Development Corporation
of America, Inc. (the “Issuer”) and BDCA
Adviser, LLC, a Delaware limited liability company (“Investor”).
WHEREAS, the Issuer is a
closed-end investment company that has elected to be treated as a business
development company under the Investment Company Act of 1940.
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to Section 4(2) of the
Securities Act of 1933, as amended (the “Securities Act”) and
Rule 506 promulgated thereunder, the Company desires to issue and sell Investor,
and Investor desires to subscribe for and purchase from the Company, shares of
the Company’s common stock, par value $0.001 per share (“Common Stock”), all
as described more fully in this Agreement.
NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and
for other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the Company and Investor hereby agree as
follows:
1. Subscription for
Shares. Investor hereby irrevocably subscribes for 22,222
shares of Common Stock (the “Shares”) for an
aggregate purchase price of Two Hundred Thousand Dollars
($200,000). The purchase price is being paid simultaneous herewith by
wire transfer of immediately available federal funds to the bank account
designated on Schedule
A hereto. Upon receipt of the purchase price, the Shares will
be registered in the name of Investor on the books and records of the Company’s
transfer agent.
2. Investor Representations and
Warranties. Investor hereby represents and warrants to the
Company as of the date hereof as follows:
a. Organization and
Authority. Investor is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with the requisite power and authority to enter into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder and thereunder. The execution, delivery and
performance by Investor of the transactions contemplated by this Agreement have
been duly authorized by all necessary corporate or similar action on the part of
Investor.
b. Own
Account. Investor understands that the Shares are “restricted
securities” and have not been registered under the Securities Act or any
applicable state securities law and Investor is acquiring the Shares as
principal for its own account and not with a view to or for distributing or
reselling the Shares or any part thereof in violation of the Securities Act or
any applicable state securities law, has no present intention of distributing
any of such Shares in violation of the Securities Act or any applicable state
securities law and has no arrangement or understanding with any other persons
regarding the distribution of the Shares in violation of the Securities Act or
any applicable state securities law.
c. Investor
Status. Investor is an “accredited investor” as defined in
Rule 501 under Regulation D of the Securities Act.
3. Effectiveness.
a. This
Agreement, including, without limitation, the foregoing representations and
warranties made by Investor, shall survive the date of the issuance to Investor
of the Shares.
b. The
agreements of Investor set forth herein shall become effective and binding upon
Investor, without right of revocation, upon the Company’s acceptance of this
Agreement.
4. Miscellaneous.
a. Any
notice, demand, request or other communication to any party hereunder which may
be required or contemplated herein shall be in writing and shall be given to (x)
the Company at the following address: 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
or to facsimile number (000) 000-0000, and (y) to Investor at the following
address: 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or to facsimile number (000)
000-0000, or to such other address or facsimile number as such Investor may
designate from time to time by written notice to the Company.
Each such
notice, request, consent or other communication shall be effective (w) if
delivered by hand, when delivered at the address specified in this Section 4(a)
(x) if sent by first class mail, five days after such mailing to the address
specified in this Section 4(a), (y) if delivered by nationally recognized
overnight courier service or sent by United States Express Mail, on the second
following business day after delivery to such service or such mailing and (z) if
given by facsimile, when such facsimile is transmitted to the facsimile number
specified in this Section 4(a) and the appropriate answer back or confirmation
is received, provided that notice to the Company shall be effective only if and
when received.
b. The
provisions of this Agreement are not intended to be for the benefit of any
creditor of Investor or of the Company or any other person, and no such creditor
or other person shall obtain any rights under this Agreement or shall, by reason
of this Agreement, be permitted to make any claim against the
Company.
c. This
Agreement shall be binding upon the heirs, executors, administrators, successors
and permitted assigns of Investor and, if accepted by the Company, shall be
binding upon the Company’s successors and assigns.
d. Neither
this Agreement nor any provision hereof may be waived, modified, discharged or
terminated except by an instrument in writing signed by the party against whom
such waiver, modification, discharge or termination is sought to be
enforced.
e. This
Agreement is not transferable or assignable by Investor.
f. This
Agreement contains the entire agreement of the parties and supersede any prior
agreement of the parties, and there are no representations, covenants or other
agreements except as stated or referred to herein and in such other agreements
or documents.
g. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the principles of conflicts of laws
thereof.
h. This
Agreement may be executed in counterparts with the same effect as if the parties
executing the counterparts had all executed one counterpart.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
BUSINESS
DEVELOPMENT CORPORATION OF AMERICA
By: /s/ Xxxxxxx X.
Kahane_______
Name:
Xxxxxxx X. Xxxxxx
Title:
President
BDCA
Adviser, LLC
By: /s/ Xxxxxxx X. Kahane________
Name:
Xxxxxxx X. Xxxxxx
Title:
President
Schedule
A
Wire
Instructions
