Acceptance and Closing. The Investor acknowledges that the subscription of the Series One Units by the Investor is conditioned upon acceptance by the Manager, on behalf of the Company, of this Subscription Agreement. The Manager, on behalf of the Company, may accept or reject this Subscription Agreement for any reason or no reason, in its sole discretion. If the Manager has not accepted this Subscription Agreement within 30 days of the date that the Investor executes this Subscription Agreement, this Subscription Agreement will be deemed to be rejected by the Manager on behalf of the Company. THE SECURITIES DESCRIBED HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 NOR APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION NOR BY THE SECURITIES REGULATORY AUTHORITY OF ANY STATE, NOR HAS ANY COMMISSION OR AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF ANY DISCLOSURE MADE IN CONNECTION THEREWITH. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE SECURITIES OFFERED HEREBY MAY NOT BE RESOLD WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS OR EXEMPTION THEREFROM. ANY TRANSFER OF THE SECURITIES REPRESENTED BY THIS SUBSCRIPTION AGREEMENT IS FURTHER SUBJECT TO OTHER RESTRICTIONS, TERMS, AND CONDITIONS WHICH ARE SET FORTH IN THIS SUBSCRIPTION AGREEMENT AND IN THE FIFTH AMENDED AND RESTATED OPERATING AGREEMENT OF ▇▇▇▇▇▇▇▇▇ REAL ESTATE INCOME FUND, LLC. Part II: Distribution Reinvestment Plan (DRIP) Enrollment You will automatically receive cash distributions unless you elect to enroll in the Company’s Distribution Reinvestment Plan (“DRIP”). If you elect to enroll in the DRIP, in lieu of receiving cash distributions, distributions attributable to the Series One Units you hold will be automatically reinvested in additional Series One Units at the Most Recent NAV Per Unit in effect on the distribution date. Members electing to participate in the Plan may select full distribution reinvestment or partial distribution reinvestment. If you elect to enroll in the full DRIP, you are authorizing the Company to purchase additional Series One Units on your behalf by reinvesting all of the cash distributions declared and paid in respect of the Series One Units that you hold, including distributions paid with respect to any full or fractional Series One Units acquired under the DRIP. If you elect to enroll in the partial DRIP, you are authorizing the Company to purchase additional Series One Units on your behalf by reinvesting a portion of your distributions. If you elect to partially enroll in the DRIP, you must specify the percentage of your cash distributions that you wish to enroll in the DRIP. The portion of distributions on your Series One Units that are not enrolled in the Plan will be paid to you in cash. An investor participating in the DRIP may amend the terms of their participation or terminate participation at any time, without penalty, by delivering to the Company the appropriate authorization form provided by the Company. Such form of notice must be received by the Company prior to the Record Date for a distribution in order for a participant’s amendment or termination to be effective for such distribution. If investors participating in the DRIP experience a material adverse change in their financial condition or can no longer make the representations or warranties set forth in the Subscription Agreement regarding their status as an “accredited investor,” they are asked to promptly notify the Company in writing. The investor’s Broker-Dealer, Registered Investment Advisor, licensed attorney, or certified public accountant may notify the Company in writing if the investor participating in the DRIP can no longer make the representations or warranties set forth in the Subscription Agreement regarding their status as an “accredited investor,” provided that the investor has granted their Broker-Dealer, Registered Investment Advisor, licensed attorney, or certified public accountant discretionary authority to do so, and the Company may rely on such written notification to terminate such Subscriber’s participation in the DRIP. Following any termination of the DRIP, all subsequent distributions to Unit Holders would be made in cash. I wish to elect full distribution reinvestment. I wish to elect partial distribution reinvestment. The percentage of cash distributions that I wish to reinvest is %. I do not wish to particpate in the DRIP. Part III: Investor Questionnaire 1. Accredited Investor Certification. Investor hereby represents and warrants that (check as appropriate): If a natural person (check as appropriate): That I have an individual net worth, or joint net worth with my spouse (or spousal equivalent, which means a cohabitant occupying a relationship generally equivalent to that of a spouse), of more than $1,000,000. For this purpose, I acknowledge that my net worth (i) excludes the value of my primary residence, (ii) subject to clause (iv) below, excludes the amount of any indebtedness secured by my primary residence, up to the fair market value of my primary residence, (iii) includes the amount of any indebtedness secured by my primary residence to the extent in excess of the fair market value of such residence, and (iv) notwithstanding clause (ii) above, includes the amount of any increase in the amount of indebtedness secured by my primary residence in the 60 days preceding the completion of this Subscription Agreement; That I have individual income in excess of $200,000, or joint income with my spouse or spousal equivalent in excess of $300,000, in each of the two most recent years and I have a reasonable expectation of reaching the same income level in the current year; or That I presently hold one or more of the following licenses: General Securities Representative (Series 7), Private Securities Offerings Representative (Series 82), or Investment Adviser Representative (Series 65). A corporation, an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), a Massachusetts or similar business trust, a partnership, or a limited liability company, not formed for the specific purpose of acquiring the Series One Units, with total assets in excess of $5,000,000; A trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Series One Units and whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of an investment in the Series One Units; A broker-dealer registered pursuant to section 15 of the Securities Exchange Act of 1934, as amended; An investment adviser registered pursuant to section 203 of the Investment Advisers Act of 1940, as amended (the “Investment Advisers Act”), or registered pursuant to the laws of any state; An investment adviser relying on the exemption from registering with the Securities and Exchange Commission under section 203(l) or (m) of the Investment Advisers Act; An investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”); A business development company (as defined in section 2(a)(48) of the Investment Company Act); A Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958; Any Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural Development Act; Any 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; An employee benefit plan within the meaning of ERISA, if the investment decision is made by a plan fiduciary (as defined in section 3(21) of ERISA), which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons who are Accredited Investors; A private business development company (as defined in section 202(a)(22) of the Investment Advisers Act); A bank as defined in section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity; Any insurance company as defined in section 2(a)(13) of the Securities Act; An entity in which all of the equity owners are Accredited Investors (including, for this purpose, an individual retirement account owned and directed exclusively by an Accredited Investor); An entity of a type not listed in the preceding items, not formed for the specific purpose of investing in Series One Units and owning investments in excess of $5,000,000; A “family office,” as defined in rule 202(a)(11)(G)-1 under the Investment Advisers Act, with assets under management in excess of $5,000,000, not formed for the specific purpose of investing in the Series One Units, and whose purchase is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of an investment in the Series One Units; A “family client,” as defined in rule 202(a)(11)(G)-1 under the Investment Advisers Act, of a family office meeting the requirements of the preceding item whose investment in the Series One Units is directed by such family office as provided in such preceding item; or A grantor revocable trust where the grantors meet the qualifications under “Natural Persons” above. 2. Benefit Plan Investor Status. The Investor: Is a “benefit plan investor” Is a “benefit plan investor” Is NOT a “benefit plan investor” The term “benefit plan investor” is defined for this purpose by ERISA to include (i) any employee benefit plan that is subject to the fiduciary responsibility standards and prohibited transaction restrictions of part 4 of Title I of ERISA, (ii) any plan to which Section 4975 of the Code applies, including an individual retirement account, (iii) a private investment fund or other entity whose assets are treated as “plan assets” for purposes of ERISA and Section 4975 of the Code, and (iv) the general account of an insurance company if a portion of the assets of the general account are treated as “plan assets” for purposes of ERISA and Section 4975 of the Code. The Investor agrees to notify the Manager promptly if at any time the foregoing statement is no longer true and to indicate in writing the percentage of Investor’s assets that are treated as “plan assets” for purposes of ERISA or Section 4975 of the Code. Part IV: Representations, Warranties, and Covenants
Appears in 1 contract
Sources: Subscription Agreement
Acceptance and Closing. The Investor acknowledges that This Commitment shall not be effective unless or until it has been executed by each of Transeastern and the subscription of the Series One Units by the Investor is conditioned upon acceptance by the Manager, Principals on behalf of themselves and the CompanyBorrower and Pledgors, and delivered together with the sum of this Subscription Agreement$30,000.00, representing one-half of the Commitment Fee (all funds to be in immediately available funds), to the Lender. The Manager, on behalf delivery of the Companyoriginal acknowledgment and the foregoing fees must occur no later than Friday, may accept March 15, 1996, or reject the Lender's agreement to enter into this Subscription Agreement for any reason or no reason, in its sole discretionCommitment shall terminate. If the Manager has not accepted this Subscription Agreement within 30 days Upon confirmation of the date that the Investor executes this Subscription Agreement, this Subscription Agreement will be deemed to be rejected by the Manager on behalf of the Company. THE SECURITIES DESCRIBED HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 NOR APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION NOR BY THE SECURITIES REGULATORY AUTHORITY OF ANY STATE, NOR HAS ANY COMMISSION OR AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF ANY DISCLOSURE MADE IN CONNECTION THEREWITH. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE SECURITIES OFFERED HEREBY MAY NOT BE RESOLD WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS OR EXEMPTION THEREFROM. ANY TRANSFER OF THE SECURITIES REPRESENTED BY THIS SUBSCRIPTION AGREEMENT IS FURTHER SUBJECT TO OTHER RESTRICTIONS, TERMS, AND CONDITIONS WHICH ARE SET FORTH IN THIS SUBSCRIPTION AGREEMENT AND IN THE FIFTH AMENDED AND RESTATED OPERATING AGREEMENT OF ▇▇▇▇▇▇▇▇▇ REAL ESTATE INCOME FUND, LLC. Part II: Distribution Reinvestment Plan (DRIP) Enrollment You will automatically receive cash distributions unless you elect to enroll in the Company’s Distribution Reinvestment Plan (“DRIP”). If you elect to enroll in the DRIP, in lieu of receiving cash distributions, distributions attributable to the Series One Units you hold will be automatically reinvested in additional Series One Units at the Most Recent NAV Per Unit in effect on the distribution date. Members electing to participate in the Plan may select full distribution reinvestment or partial distribution reinvestment. If you elect to enroll in the full DRIP, you are authorizing the Company to purchase additional Series One Units on your behalf by reinvesting Borrower's compliance with all of the cash distributions declared and paid in respect conditions precedent specified herein, including, but not limited to those set forth on EXHIBIT "A" attached hereto, the Lender shall fund the Loan. The Borrower agrees to exercise diligent efforts to cause Closing of the Series One Units Loan to occur on or before March 25, 1996 and acknowledges that you holdas a material term of this Commitment Letter, including distributions paid time being of the essence, the Closing of the Loan must occur on or before March 29, 1996, subject to any extensions which may be mutually agreed to (the "OUTSIDE DATE FOR CLOSING"). In the event the Borrower, the Pledgors, and/or Guarantors have not fulfilled any one or all of the Conditions Precedent by the time set forth in any particular Condition Precedent, or, if no date is specified, by the Outside Date for Closing, this Commitment Letter shall terminate and the Lender shall have no obligations to extend the Loan to the Borrower. Closing may be conducted through an escrow established with a neutral third party subject to the Lender's approval. Should Closing of the Loan not occur by the Outside Date for Closing, this Commitment Letter shall terminate without further action by the Lender and the Lender shall have no further obligations to the Borrower. Notwithstanding anything to the contrary contained in this Commitment Letter, the obligations of the Borrower, the Principals and Transeastern with respect to the payment of the Lender's expenses, the payment of brokerage commissions and pursuant to any full or fractional Series One Units acquired under indemnities set forth herein, shall survive termination of the DRIP. If you elect to enroll in the partial DRIP, you are authorizing the Company to purchase additional Series One Units on your behalf by reinvesting a portion of your distributions. If you elect to partially enroll in the DRIP, you must specify the percentage of your cash distributions that you wish to enroll in the DRIP. The portion of distributions on your Series One Units that are not enrolled in the Plan will be paid to you in cash. An investor participating in the DRIP may amend the terms of their participation or terminate participation at any time, without penalty, by delivering to the Company the appropriate authorization form provided by the Company. Such form of notice must be received by the Company prior to the Record Date for a distribution in order for a participant’s amendment or termination to be effective for such distribution. If investors participating in the DRIP experience a material adverse change in their financial condition or can no longer make the representations or warranties other obligations set forth in the Subscription Agreement regarding their status as an “accredited investor,” they are asked to promptly notify the Company in writing. The investor’s Broker-Dealer, Registered Investment Advisor, licensed attorney, or certified public accountant may notify the Company in writing if the investor participating in the DRIP can no longer make the representations or warranties set forth in the Subscription Agreement regarding their status as an “accredited investor,” provided that the investor has granted their Broker-Dealer, Registered Investment Advisor, licensed attorney, or certified public accountant discretionary authority to do so, and the Company may rely on such written notification to terminate such Subscriber’s participation in the DRIP. Following any termination of the DRIP, all subsequent distributions to Unit Holders would be made in cash. I wish to elect full distribution reinvestment. I wish to elect partial distribution reinvestment. The percentage of cash distributions that I wish to reinvest is %. I do not wish to particpate in the DRIP. Part III: Investor Questionnaire
1. Accredited Investor Certification. Investor hereby represents and warrants that (check as appropriate): If a natural person (check as appropriate): That I have an individual net worth, or joint net worth with my spouse (or spousal equivalent, which means a cohabitant occupying a relationship generally equivalent to that of a spouse), of more than $1,000,000. For this purpose, I acknowledge that my net worth (i) excludes the value of my primary residence, (ii) subject to clause (iv) below, excludes the amount of any indebtedness secured by my primary residence, up to the fair market value of my primary residence, (iii) includes the amount of any indebtedness secured by my primary residence to the extent in excess of the fair market value of such residence, and (iv) notwithstanding clause (ii) above, includes the amount of any increase in the amount of indebtedness secured by my primary residence in the 60 days preceding the completion of this Subscription Agreement; That I have individual income in excess of $200,000, or joint income with my spouse or spousal equivalent in excess of $300,000, in each of the two most recent years and I have a reasonable expectation of reaching the same income level in the current year; or That I presently hold one or more of the following licenses: General Securities Representative (Series 7), Private Securities Offerings Representative (Series 82), or Investment Adviser Representative (Series 65). A corporation, an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), a Massachusetts or similar business trust, a partnership, or a limited liability company, not formed for the specific purpose of acquiring the Series One Units, with total assets in excess of $5,000,000; A trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Series One Units and whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of an investment in the Series One Units; A broker-dealer registered pursuant to section 15 of the Securities Exchange Act of 1934, as amended; An investment adviser registered pursuant to section 203 of the Investment Advisers Act of 1940, as amended (the “Investment Advisers Act”), or registered pursuant to the laws of any state; An investment adviser relying on the exemption from registering with the Securities and Exchange Commission under section 203(l) or (m) of the Investment Advisers Act; An investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”); A business development company (as defined in section 2(a)(48) of the Investment Company Act); A Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958; Any Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural Development Act; Any 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; An employee benefit plan within the meaning of ERISA, if the investment decision is made by a plan fiduciary (as defined in section 3(21) of ERISA), which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons who are Accredited Investors; A private business development company (as defined in section 202(a)(22) of the Investment Advisers Act); A bank as defined in section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity; Any insurance company as defined in section 2(a)(13) of the Securities Act; An entity in which all of the equity owners are Accredited Investors (including, for this purpose, an individual retirement account owned and directed exclusively by an Accredited Investor); An entity of a type not listed in the preceding items, not formed for the specific purpose of investing in Series One Units and owning investments in excess of $5,000,000; A “family office,” as defined in rule 202(a)(11)(G)-1 under the Investment Advisers Act, with assets under management in excess of $5,000,000, not formed for the specific purpose of investing in the Series One Units, and whose purchase is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of an investment in the Series One Units; A “family client,” as defined in rule 202(a)(11)(G)-1 under the Investment Advisers Act, of a family office meeting the requirements of the preceding item whose investment in the Series One Units is directed by such family office as provided in such preceding item; or A grantor revocable trust where the grantors meet the qualifications under “Natural Persons” aboveCommitment Letter.
2. Benefit Plan Investor Status. The Investor: Is a “benefit plan investor” Is a “benefit plan investor” Is NOT a “benefit plan investor” The term “benefit plan investor” is defined for this purpose by ERISA to include (i) any employee benefit plan that is subject to the fiduciary responsibility standards and prohibited transaction restrictions of part 4 of Title I of ERISA, (ii) any plan to which Section 4975 of the Code applies, including an individual retirement account, (iii) a private investment fund or other entity whose assets are treated as “plan assets” for purposes of ERISA and Section 4975 of the Code, and (iv) the general account of an insurance company if a portion of the assets of the general account are treated as “plan assets” for purposes of ERISA and Section 4975 of the Code. The Investor agrees to notify the Manager promptly if at any time the foregoing statement is no longer true and to indicate in writing the percentage of Investor’s assets that are treated as “plan assets” for purposes of ERISA or Section 4975 of the Code. Part IV: Representations, Warranties, and Covenants
Appears in 1 contract