Exhibit 10(ii)
SUBSCRIPTION AGREEMENT
EXCALIBUR, I, LLC
(01-11)
1. The undersigned ("Subscriber") hereby subscribes for the dollar amount
(the "Investment") set forth below, each Investment to have a purchase price
equal to Subscriber's pro rata share of the total participation (the
"Participation") in the Loan Pool 01-11, Excalibur I, LLC. Each Investment shall
consist of the Subscriber's Participation in the Loan Pool for which a note in
the amount of the Investment shall be issued. The Subscriber shall receive
distributions on a quarterly basis until the Subscriber receives 150 percent of
the amount of the Investment or notice that collections from the defaulted upon
accounts receivable have been exhausted, and no other distributions will be paid
to Note holders, whichever event occurs first.
2. The Company is under no obligation to accept any Subscription
Agreement. In the event that the Company elects not to accept the Subscription
Agreement, it shall promptly notify Subscriber. This Agreement shall thereupon
have no further force and effect, and the subscription funds actually paid shall
be promptly returned to Subscriber, without interest thereon.
3. Subscriber hereby represents, warrants, and convenants as follows:
a. Subscriber meets one or more of the following:
i. Suscriber had annual income during each of the two most
recent years in excess of $200,000 and reasonably expects
income in excess of $200,000 in the current year; or
ii. Subscriber had joint income with spouse in excess of
$300,000 during each of the two most recent years and
reasonably expects joint income in excess of $300,000 in the
current year; or
iii. Subscriber presently has an individual or joint total net
worth (together with spouse) in excess of $1,000,000; or
iv. Subscriber is a director or executive officer of the
Company;
v. Subscriber is an entity in which all the equity owners are
accredited investors under any one of Subparagraphs (i),
(ii), (iii), (iv); or
vi. Subscriber is a bank as defined in Section 3(a)(2) of the
Securities Act of 1933 (the "Act") or a savings and loan
association or other institution as defined in Section
3(a)(5)(A) of the Act whether acting in its individual or
fiduciary capacity; a broker or dealer registered pursuant
to Section 15 of the
Securities Exchange Act of 1934; an insurance company as
defined in Section 2(13) of the Act; an investment company
registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48)
of that Act; a Small Business Investment Company under
Section 301(c) or (d) of the Small Business Investment Act
of 1958; a plan established and maintained by a state, its
political subdivisions, or an agency or instrumentality of a
state or its political subdivision, for the benefit of its
employees if such plan has total assets in excess of
$5,000,000; and employee benefit plan within the meaning of
the Employee Retirement Income Security Act of 1974 if the
investment decision is made by a plan fiduciary, as defined
in Section 3(21) of such acts, which is either a bank
savings and loan association, insurance company, or
registered investment adviser of the employee benefit plan
which has assets in excess of $5,000,000, or is a self-
directed plan, with investment decisions made solely by
persons that are accredited investors under any one of
Subparagraphs (i), (ii), and (iv); or
vii. Subscriber is a private business development company as
defined in Section 202(a)(22) of the Investment Advisers
Act of 1940; or
viii. Subscriber is an organization described in Section 50(c)(3)
of the Internal Revenue Code, corporation, Massachusetts or
similar business trust, or partnership, not formed for the
specific purpose of acquiring the Investments offered, with
total assets in excess of $5,000,000; or
ii. Subscriber is a trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the Investments offered, whose purchase is directed by a
sophisticated person as described in Rule 506(b)(2)(ii) of
the act.
b. Subscriber is acquiring the Investment (i) for his own account and
not for the interest of any other; and (ii) for Investment only
and not with the intention of, or a view toward, the resale or
distribution thereof, and will not resell or otherwise transfer
the Investment unless pursuant to an effective registration
statement or based upon an exemption from registration, such
exemption is available on the opinion of counsel satisfactory to
Company's counsel in the opinion of Company's counsel; subscriber
further understands that holding the Investment for any predefined
period of
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time (holding for a defined sale, holding for the capital gains
period, etc.) does not constitute holding for Investment or an
agreement to hold the Investment for Investment;
c. Subscriber understands that the company is not obligated to register
the Investment under the Act to comply with the requirements for any
exemption which might otherwise be available or to supply the
undersigned with any information necessary to enable him to make
routine sales of his Investment;
d. Subscriber possesses the knowledge and experience in financial and
business matters to be able to evaluate the merits and risks of this
Investment;
e. Subscriber is able to bear the economic risk of the Investment and is
aware that no market for the Investment now exists, and such markets
may not exist or may be limited in the future at such time as the
Investment may be sold under applicable federal and state securities
laws;
f. Subscriber realizes that since the Investment cannot be readily
transferred, he, she, or it may not readily liquidate the Investment
and must not purchase the Investment unless he has sufficient liquid
assets to assure himself that such purchase will cause him no undue
financial difficulties. Subscriber realizes further that the
Investment may not be sold, transferred, or otherwise disposed of
without registration under the Act or pursuant to an exemption from
registration under the Act. Subscriber acknowledges that he has no
rights to require registration of his Investment or component parts of
the Investments under the Act;
g. Subscriber realizes and acknowledges that all the books and records of
the Company have been made available for inspection prior to the
execution and delivery of this Agreement; and
h. Subscriber agrees to cooperate with the Company in correcting
clerical errors made on any documentation relating to the purchase of
the Investment.
4. All checks should be made payable to "Xxxxxx Xxxxxxxxx, Special
Account."
5. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York and shall bind and inure to the benefit of
heirs, executors, administrators, legal representatives, successors, and assigns
of the Subscriber and the Company.
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IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the
25th day of June 2001.
Dollar amount of Investment Subscribed for: $1,000,000.
Subscriber's Signature:
ENVIRO-Clean OF AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxx, Chief Executive Officer
Subscriber's Name
(Print): Enviro-Clean of America, Inc.
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