Representations of the Purchasers. Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder: (a) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan 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 plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or (b) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or (c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38, and no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c); or (d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or (e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or (h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
Appears in 2 contracts
Sources: Third Supplement to Master Note Purchase Agreement (Waste Connections, Inc.), Third Supplement to Master Note Purchase Agreement (Waste Connections, Inc.)
Representations of the Purchasers. Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such 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 such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser’s property shall at all times be and remain within its control. Each 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 such Purchaser it to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(a) the Source is an “insurance company general account” (as within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“PTE”) 95-6060 (issued July 12, 1995) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any there is no employee benefit plan, treating as a single plan 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 all plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by employee organization, with respect to which the same employee organization in amount of the general account do not exceed 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 the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the NAIC National Association of Insurance Commissioners (“NAIC”) Annual Statement filed with such Purchaser’s state of domicile; or
(b) the Source is either (i) an insurance company pooled separate account, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 9590-601 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as such Purchaser has disclosed to the Company in writing pursuant to this paragraph (b), no employee benefit plan or group of 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
(bc) 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 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 the Company in writing pursuant to this paragraph (c); or
(d) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38, and no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c); or
(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) Section IV of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) 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 Part IV(d)(3Section IV(h) of the INHAM Exemption) owns a 105% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause paragraph (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Accountplan, other than a plan exempt from the coverage of ERISA. If any Purchaser or any subsequent transferee of the Notes indicates that such 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 paragraph 6§3.2, the terms “employee benefit plan,” “governmental plan,” “party in interest” and “separate account” shall have the respective meanings assigned to such terms in section Section 3 of ERISA.
Appears in 2 contracts
Sources: Note Agreement (Allied Capital Corp), Note Agreement (Allied Capital Corp)
Representations of the Purchasers. Each Purchaser severally represents, and in entering into this Agreement the Company understands, that each Purchaser is acquiring Notes for the purpose of investment and not with a view to the distribution thereof, and that neither Purchaser has a present intention of selling, negotiating or otherwise disposing of any of the Notes; it being understood, however, that the disposition of such Purchaser’s property shall at all times be and remain within such Purchaser’s control. Each Purchaser further represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Series 2015A Notes to be purchased by it such Purchaser hereunder:
(a) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan 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 plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2)account; or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-3838 and, and except as such Purchaser has disclosed to the Company in writing pursuant to this paragraph (c), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause paragraph (d); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 paragraph (e); or
(f) the Source is a governmental plan and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause paragraph (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Accountplan, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, Section 3.2 the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section Section 3 of ERISA.
Appears in 1 contract
Sources: Note Agreement (SJW Corp)
Representations of the Purchasers. Each Purchaser severally represents You represent, and in entering into this Agreement the Company understands, that you are an Accredited Investor and 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. You further represent that at least one of the following statements is an accurate Penford Corporation Restatement and Exchange Agreement (1992 Note Agreements) representation as to each source of funds account (a “Source”an "Account") to be used by such Purchaser to pay in which the purchase price of the Series 2015A Old Notes to be purchased surrendered by it hereunderyou for cancellation are held and for which the Notes being acquired by you are being acquired:
(a) the Source Account is an “"insurance company general account” (as " within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“"PTE”") 95-6060 (issued July 12, 1995) in and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect of to which the amount of the general account reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) all contracts held by or on behalf of any employee benefit plan 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 plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed such plan, exceeds 10% of the total reserves and liabilities of the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the NAIC Annual Statement filed with such Purchaser’s your state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(c) the Source Account is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as you have disclosed to the Company in writing pursuant to this paragraph (b), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c); or
(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
Appears in 1 contract
Representations of the Purchasers. Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such 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 such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser’s property shall at all times be and remain within its control. Each 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 such Purchaser it to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(ai) the Source is an “insurance company general account” (as within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“PTE”) 95-6060 (issued July 12, 1995) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any there is no employee benefit plan, treating as a single plan 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 all plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by employee organization, with respect to which the same employee organization in amount of the general account do not exceed 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 the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or
(ii) the Source is either (i) an insurance company pooled separate account, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 9590-601 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as such Purchaser has disclosed to the Company in writing pursuant to this paragraph (ii), no employee benefit plan or group of 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
(biii) 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 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 the Company in writing pursuant to this paragraph (iii); or
(iv) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2)account; or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38, and no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c); or
(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or
(ev) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) Section IV of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) 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 Part IV(d)(3Section IV(h) of the INHAM Exemption) owns a 105% 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
(fvi) the Source is a governmental plan and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; or
(gvii) 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 paragraph (gvii); or
(hviii) the Source does not include assets of any employee benefit plan or Individual Retirement Accountplan, other than a plan exempt from the coverage of ERISA. If any Purchaser or any subsequent transferee of the Notes indicates that such Purchaser or such transferee is relying on any representation contained in paragraphs (ii), (iii) or (vii) above, the Company shall deliver on the date of Closing and on the date of any applicable transfer a certificate, which shall either state that (1) 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 (ii) or (vii) above, or (2) with respect to any plan, identified pursuant to paragraph (iii) 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 (iii) above or to negotiate the terms of said QPAM’s management agreement on behalf of any such identified plan. As used in this paragraph 6§3.2, the terms “employee benefit plan,” “governmental plan,” “party in interest” and “separate account” shall have the respective meanings assigned to such terms in section Section 3 of ERISA.
Appears in 1 contract
Sources: Note Agreement (Allied Capital Corp)
Representations of the Purchasers. Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such 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 such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within its control. Each 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 such Purchaser it to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(a) the Source is an “"insurance company general account” (as " within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“"PTE”") 95-6060 (issued July 12, 1995) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any there is no employee benefit plan, treating as a single plan 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 all plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by employee organization, with respect to which the same employee organization in amount of the general account do not exceed 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 the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the NAIC Annual Statement filed with such Purchaser’s 's state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as such Purchaser has disclosed to the Company in writing pursuant to this paragraph (b), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(dc) the Source constitutes assets of an “"investment fund” " (within the meaning of Part VI V of PTE 84-14 (the “QPAM Exemption”)) managed by a “"qualified professional asset manager” " or “"QPAM” " (within the meaning of Part VI V of the QPAM Exemption), no employee benefit plan’s 's assets that are managed by the QPAM 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 Part VI(c)(1Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any all employee benefit plans whose assets are included in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, fund have been disclosed to the Company in writing pursuant to this clause paragraph (dc); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
Appears in 1 contract
Sources: Note Agreement (Allied Capital Corp)
Representations of the Purchasers. Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such 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 such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within its control. Each 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 such Purchaser it to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(a) the Source is an “"insurance company general account” (as " within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“"PTE”") 95-6060 (issued July 12, 1995) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any there is no employee benefit plan, treating as a single plan 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 all plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by employee organization, with respect to which the same employee organization in amount of the general account do not exceed 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 the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the NAIC Annual Statement filed with such Purchaser’s 's state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank collective collectiv▇ -▇- ▇▇▇▇ed Capital Corporation Note Agreement investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as such Purchaser has disclosed to the Company in writing pursuant to this paragraph (b), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(dc) the Source constitutes assets of an “"investment fund” " (within the meaning of Part VI V of PTE 84-14 (the “QPAM Exemption”)) managed by a “"qualified professional asset manager” " or “"QPAM” " (within the meaning of Part VI V of the QPAM Exemption), no employee benefit plan’s 's assets that are managed by the QPAM 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 Part VI(c)(1Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any all employee benefit plans whose assets are included in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, fund have been disclosed to the Company in writing pursuant to this clause paragraph (dc); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
Appears in 1 contract
Sources: Note Agreement (Allied Capital Corp)
Representations of the Purchasers. Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such 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 such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within its control. Each 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 such Purchaser it to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(a) the Source is an “"insurance company general account” (as " within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“"PTE”") 95-6060 (issued July 12, 1995) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any there is no employee benefit plan, treating as a single plan 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 all plans Allied Capital Corporation 2003 Note Agreement maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by employee organization, with respect to which the same employee organization in amount of the general account do not exceed 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 the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the NAIC Annual Statement filed with such Purchaser’s 's state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as such Purchaser has disclosed to the Company in writing pursuant to this paragraph (b), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(dc) the Source constitutes assets of an “"investment fund” " (within the meaning of Part VI V of PTE 84-14 (the “QPAM Exemption”)) managed by a “"qualified professional asset manager” " or “"QPAM” " (within the meaning of Part VI V of the QPAM Exemption), no employee benefit plan’s 's assets that are managed by the QPAM 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 Part VI(c)(1Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any all employee benefit plans whose assets are included in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, fund have been disclosed to the Company in writing pursuant to this clause paragraph (dc); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
Appears in 1 contract
Sources: Note Agreement (Allied Capital Corp)
Representations of the Purchasers. Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such Purchaser is acquiring the Series 2008 Notes in a private placement for the purpose of investment and not with a view to the distribution thereof, and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Series 2008 Notes; it being understood, however, that the disposition of the Purchaser’s property shall at all times be and remain within its control. Sun Life represents that it is an institutional “accredited investor” and “Canadian financial institution”, each within the meaning of Multilateral Instrument 45-106 pursuant to Canadian provincial securities legislation. Each Purchaser severally 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 such Purchaser it to pay the purchase price of the Series 2015A 2008 Notes to be purchased by it hereunder:
(a) the Source is an “insurance company general account” (as within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“PTE”) 95-6060 (issued July 12, 1995) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any there is no employee benefit plan, treating as a single plan 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 all plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by employee organization, with respect to which the same employee organization in amount of the general account do not exceed 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 the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the NAIC National Association of Insurance Commissioners (“NAIC”) Annual Statement filed with such Purchaser’s state of domicile; or
(b) the Source is either (i) an insurance company pooled separate account, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 9590-601 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as such Purchaser has disclosed to the Company in writing pursuant to this paragraph (b), no employee benefit plan or group of 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
(bc) 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 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 the Company in writing pursuant to this paragraph (c); or
(d) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38, and no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c); or
(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) Section IV of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) 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 Part IV(d)(3Section IV(h) of the INHAM Exemption) owns a 105% 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 paragraph (e); or
(f) the Source is a governmental plan and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause paragraph (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Accountplan, other than a plan exempt from the coverage of ERISA. If a Purchaser or any subsequent transferee of the Series 2008 Notes indicates that such 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 paragraph 6§3.2, the terms “employee benefit plan,” “governmental plan,” “party in interest” and “separate account” shall have the respective meanings assigned to such terms in section Section 3 of ERISA.
Appears in 1 contract
Sources: Note Agreement (Allied Capital Corp)
Representations of the Purchasers. (a) Each Purchaser severally of the Purchasers hereby represents to the Company that it (i) is purchasing the Notes for its own account for investment and not with a view to, or for sale in connection with, the distribution thereof or with any present intention of distributing or selling any of the Notes, provided that the disposition of the Purchaser’s property shall at all times be within its control, (ii) is an “accredited investor”, as defined in Regulation D under the Securities Act, and (iii) (x) has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of the investment in the Notes and (y) is able to bear the economic risk of such investment. Each of the Purchasers understands that the Notes have not been registered under the Securities Act and may not be sold or otherwise transferred by the Purchasers except pursuant to an effective registration statement under such Act or pursuant to an available exemption therefrom under such Act.
(b) Each of the Purchasers further represents to the Company that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser it to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(ai) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan 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 plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(bii) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2)account; or
(ciii) the Source is either (i1) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii2) a bank collective investment fund, within the meaning of the PTE 91-3838 and, and except as disclosed by such Purchaser to the Company in writing pursuant to this clause (iii), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(div) (1) the Source constitutes assets of an “investment fund” (within the meaning of Part VI V of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI V of the QPAM Exemption), (2) no employee benefit plan’s assets that are managed by the QPAM 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 Part VI(c)(1Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than exceed 20% of the total client assets managed by such QPAM, (3) the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, (4) neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership (applying the definition of “control” in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i5) the identity of such QPAM and (ii) the names of any all employee benefit plans whose assets are included in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, fund have been disclosed to the Company in writing pursuant to this clause (div); or
(ev) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) Section IV of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) IV of the INHAM Exemption1NHAM exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3Section IV(d) of the INHAM Exemption) owns a 105% or more interest in the Company and (i1) the identity of such INHAM and (ii2) 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 (ev); or
(fvi) the Source is a governmental plan and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; or
(gvii) 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 (gvii); or
(hviii) the Source does not include assets of any employee benefit plan or Individual Retirement Accountplan, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6Section 7.01(b), the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
(c) Purchasers have received all of the items described in Section 6.03.
Appears in 1 contract
Representations of the Purchasers. (a) Each Purchaser severally represents, and in entering into this Agreement the Company understands, that (i) such Purchaser is acquiring the Subject Securities for the purpose of investment and not with a view to the distribution thereof, and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Subject Securities; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within its control, and (ii) such Purchaser is an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended.
(b) Each Purchaser further represents that at least one of the following statements is an accurate representation as to concerning each source of funds (a “Source”) to be used by such Purchaser to pay purchase the purchase price Subject Securities is accurate as of the Series 2015A Notes to be purchased by it hereunderClosing Date:
(ai) if the Source Purchaser is an “insurance company company, the source of funds from which its investment is to be made is a general account” (as account of an insurance company, and the term is defined in the United States Department amount of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities for the general account contract(s) held by or on behalf of any Benefit Plan (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “"NAIC Annual Statement”")) for the general account contract(s) held by or on behalf of any employee benefit plan 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 plans Benefit Plans maintained by the same employer (or affiliate thereof as defined in PTE Department of Labor Prohibited Transaction Exemption ("PTE") 95-60) or by the same employee organization (as defined by the NAIC Annual Statement) in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with the state of domicile of the insurance company (for purposes of the percentage limitation in this clause (i), the amount of reserves and liabilities for the general account contract(s) held by or on behalf of a plan shall be determined before reduction for credits on account of any reinsurance ceded on a coinsurance basis);
(ii) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust maintained by such Purchaser’s state of domicile, and such Purchaser has disclosed to the purchase is not part Company the names of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is a separate account that is maintained solely in connection with such 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 plans whose assets in such separate account (or accounts or pension trusts exceed 10% of the total assets or are expected to any participant or beneficiary exceed 10% of the total assets of such plan (including any annuitant)) are not affected in any manner by the investment performance account or accounts or trusts as of the separate account and date of such purchase (for the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning purpose of PTE 90-1 or this clause (ii) a bank collective investment fund), within the meaning of the PTE 91-38, and no all employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than are deemed to be a single plan);
(iii) all or part of such funds constitute assets of a bank collective investment fund maintained by such Purchaser, and such Purchaser has disclosed to the Company 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 of the date of such purchase (for the purpose of this clause (iii), all assets allocated employee benefit plans maintained by the same employer or employee organization are deemed to such pooled separate account or collective investment fund , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (cbe a single plan); or;
(div) 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) such Purchaser is acquiring the Subject Securities 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 constitutes assets source of funds is an “"investment fund” " (within the meaning of Part VI V of PTE 84-14 (the “QPAM Exemption”)) managed by a “"qualified professional asset manager” " or “"QPAM” " (within the meaning of Part VI V of the QPAM Exemption), no employee benefit plan’s 's assets that are managed by the QPAM 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 Part VI(c)(1Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (iA) the identity of such QPAM and (iiB) the names of any all employee benefit plans whose assets are included in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, fund have been disclosed to the Company in writing pursuant to this clause (dvi); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
Appears in 1 contract
Representations of the Purchasers. Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such 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 such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within its control. Each Purchaser represents that it is an institutional "accredited investor" within the meaning of Rule 501 of Regulation D as promulgated under the Securities Act of 1933 and at least one of the following statements is an accurate representation as to each source of funds (a “"Source”") to be used by such Purchaser it to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(a) the Source is an “"insurance company general account” (as " within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“"PTE”") 95-6060 (issued July 12, 1995) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any there is no employee benefit plan, treating as a single plan 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 all plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by employee organization, with respect to which the same employee organization in amount of the general account do not exceed 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 the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the NAIC Annual Statement filed with such Purchaser’s 's state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as such Purchaser has disclosed to the Company in writing pursuant to this paragraph (b), no employee benefit plan or group of plans maintained by the same employer or Allied Capital Corporation Note Agreement employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(dc) the Source constitutes assets of an “"investment fund” " (within the meaning of Part VI V of PTE 84-14 (the “QPAM Exemption”)) managed by a “"qualified professional asset manager” " or “"QPAM” " (within the meaning of Part VI V of the QPAM Exemption), no employee benefit plan’s 's assets that are managed by the QPAM 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 Part VI(c)(1Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any all employee benefit plans whose assets are included in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, fund have been disclosed to the Company in writing pursuant to this clause paragraph (dc); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
Appears in 1 contract
Sources: Note Agreement (Allied Capital Corp)
Representations of the Purchasers. (a) Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such Purchaser is acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within such Purchaser's control.
(b) Each Purchaser further represents that at least one of the following statements is an accurate representation as to concerning each source of funds to be used by such Purchaser to purchase the Notes is accurate as of the Closing Date:
(a “Source”1) the source of funds to be used by such Purchaser to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(a) the Source is an “"insurance company general account” (as " within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“"PTE”") 95-6060 (issued July 12, 1995) in and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect of to which the amount of the general account reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) all contracts held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(ssuch plan, exceed ten percent (10%) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the NAIC Annual Statement filed with such Purchaser’s 's state of domicile;
(2) all or a part of such funds constitute assets of one or more separate accounts, trusts or a commingled pension trust maintained by such Purchaser, and the purchase is not part of either (i) constitute an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) insurance company pooled separate account within the meaning of PTE 9590-60; or1 or (ii) such 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 (for the purpose of this clause (2), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan);
(b3) all or part of such funds constitute assets of a bank collective investment fund maintained by such Purchaser, and such Purchaser has disclosed to the Company 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 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);
(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) such Purchaser is 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 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 (6) or to negotiate the terms of said QPAM's management agreement on behalf of any such identified plans;
(7) the source of funds is an insurance company separate account that is maintained solely in connection with such Purchaser’s the fixed contractual obligations of the insurance company 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 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2)account; or
(c8) if such Purchaser is other than an insurance company, all or a portion of such funds consists of funds which do not constitute "plan assets". If any Purchaser is relying on the representation described in paragraph (2), (3), (4) or (6) above, the Source is Company shall deliver a certificate on the Closing Date which certificate shall either state that (i) an insurance company pooled separate accountit is neither a "party in interest" (as defined in Title I, within Section 3(14) of ERISA) nor a "disqualified person" (as defined in Section 4975(e)(2) of the meaning Internal Revenue Code of PTE 90-1 1986, as amended), with respect to any plan identified pursuant to paragraphs (2), (3) or (4) above, or (ii) a bank collective investment fundwith respect to any plan identified pursuant to paragraph (6) above, within the meaning of the PTE 91-38, and no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available neither it nor any "affiliate" (as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇defined in Section V(c) and (c) or PTE 91-38 Part III(b) and (c); or
(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)14) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership interest is described in the Company that would cause the QPAM and the Company proviso to be “related” within the meaning of Part VI(h) of the QPAM Exemption and said paragraph (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d6); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6Section 3.2(b), the terms “"separate account", "employer securities", and "employee benefit plan,” “governmental plan,” and “separate account” " shall have the respective meanings assigned to such terms them in section 3 ERISA and the term "plan assets" shall have the meaning assigned to it in Department of ERISALabor Regulation 29 C.F.R. Section 2510.3-101.
Appears in 1 contract
Sources: Note Agreement (Semco Energy Inc)
Representations of the Purchasers. Each Purchaser severally represents represents: (i) that it is purchasing the Notes for its own account or for one or more separate accounts maintained by it or for the account of one or more pension or trust funds and not with a view to the distribution or sale thereof, provided that the disposition of its property shall at all times be within its control; and (ii) at least one of the following statements is an accurate representation as to each source of funds (a “"Source”") to be used by such Purchaser to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(a) if an insurance company, the Source is an “insurance company general account” (as the term is defined does not include assets allocated to any separate account maintained by it in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan 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 plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60its related trust) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicilehas any interest, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is other than a separate account that is maintained solely in connection with such Purchaser’s its fixed contractual obligations under which the amounts payable, or credited, to any employee benefit such plan (or its related trust) that has any interest in such separate account (or 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2)account; or
(cb) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE Prohibited Transaction Exemption ("PTE") 90-1 or (issued January 29, 1990), (ii) a bank collective investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as such Purchaser shall have disclosed to the Company in writing pursuant to this clause (b), no employee benefit plan or group of 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 , and or (iii) the Source is an insurance company general account of which the assets are such that if any of them are, or bank agrees are deemed to maintain records be, assets of any Plan, the acquisition of the Notes by such Purchaser pursuant hereto is eligible for and make such records available as required under P▇▇ ▇▇satisfies the requirements of PTE 95-▇ ▇▇▇▇ ▇▇▇60 (▇) and (c) or PTE 91-38 Part III(b) and (cissued July 12, 1995); or
(dc) the Source constitutes assets of an “"investment fund” " (within the meaning of Part VI V of PTE 84-14 (the “QPAM Exemption”)) managed by a “"qualified professional asset manager” " or “"QPAM” " (within the meaning of Part VI V of the QPAM ExemptionPTE 84- 14), no employee benefit plan’s 's assets that are managed by the QPAM 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 Part VI(c)(1Section V(c)(1) of the QPAM ExemptionPTE 84-14) of such employer or by the same employer or by the same employee organization and managed by such QPAM, represent more than exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption PTE 84-14 are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.person
Appears in 1 contract
Sources: Note Purchase and Private Shelf Facility (Crown Crafts Inc)
Representations of the Purchasers. Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such 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 such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within its control. Each Purchaser represents that it is an institutional "accredited investor" within the meaning of Rule 501 of Regulation D as promulgated under the Securities Act of 1933 and at least one of the following statements is an accurate representation as to each source of funds (a “"Source”") to be used by such Purchaser it to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(a) the Source is an “"insurance company general account” (as " within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“"PTE”") 95-6060 (issued July 12, 1995) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any there is no employee benefit plan, treating as a single plan 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 all plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by employee organization, with respect to which the same employee organization in amount of the general account do not exceed 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 the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the NAIC Annual Statement filed with such Purchaser’s 's state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as such Purchaser has disclosed to the Company in writing pursuant to this paragraph (b), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(dc) the Source constitutes assets of an “"investment fund” " (within the meaning of Part VI V of PTE 84-14 (the “QPAM Exemption”)) managed by a “"qualified professional asset manager” " or “"QPAM” " (within the meaning of Part VI V of the QPAM Exemption), no employee benefit plan’s 's assets that are managed by the QPAM 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.combined
Appears in 1 contract
Sources: Note Agreement (Allied Capital Corp)
Representations of the Purchasers. Each Purchaser severally represents You represent individually (and not jointly and severally) as follows:
(a) You are either (A) an institutional “accredited investor” within the meaning of Rule 501(a)(l), (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 financial and business matters as necessary in order to evaluate the 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 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.
(c) You 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 such Purchaser you to pay the purchase price of the Series 2015A Notes to be purchased by it you hereunder:
(ai) the Source is an “insurance company general account” (as the term is defined in the United States Department of LaborDOL’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan 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 plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(bii) if you are an insurance company, the Source is 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 such Purchaser’s your fixed contractual obligations under which the amounts payable, or credited, to any employee benefit such plan (or its related trust) that has any interest in such separate account (or 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2)account; or
(ciii) the Source is either (iA) an insurance company pooled separate account, within the meaning of PTE Prohibited Transaction Exemption (“PTE”) 90-1 (issued January 29, 1990), or (iiB) a bank collective investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as you have disclosed to the Company in writing pursuant to this clause (ii), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(div) the Source constitutes assets of an “investment fund” (within the meaning of Part VI V of PTE 84-14 (the “QPAM OPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI V of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM 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 Part VI(c)(1Section V(c)(l) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership (applying the definition of “control” in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any all employee benefit plans whose assets are included in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, fund have been disclosed to the Company in writing pursuant to this clause (div); or
(ev) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) section IV of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) part IV of the INHAM Exemptionexemption), the conditions of Part part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3section IV(h) of the INHAM Exemption) owns a 105% 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 (ev); or
(fvi) the Source is a governmental plan and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; or
(gvii) 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 (gvii); or
(hviii) the Source does not include assets of any employee benefit plan or Individual Retirement Accountplan, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6Section 3.24, the terms “employee benefit plan,” ”, “governmental plan,”, “party in interest” and “separate account” shall have the respective meanings assigned to such terms in section Section 3 of ERISA.
Appears in 1 contract
Sources: Note Purchase Agreement (Panther Expedited Services, Inc.)
Representations of the Purchasers. (a) Each Purchaser severally of the Purchasers hereby represent to the Company that it (i) is purchasing the Notes for its own account for investment and not with a view to, or for sale in connection with, the distribution thereof or with any present intention of distributing or selling any of the Notes, provided that the disposition of the Purchaser's property shall at all times be within its control, (ii) is an "accredited investor", as defined in Regulation D under the Securities Act, and (iii) (x) has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of the investment in the Notes and (y) is able to bear the economic risk of such investment. Each of the Purchasers understands that the Notes have not been registered under the Securities Act and may not be sold or otherwise transferred by the Purchasers except pursuant to an effective registration statement under such Act or pursuant to an available exemption therefrom under such Act.
(b) Each of the Purchasers further represents to the Company that at least one of the following statements is an accurate representation as to each source of funds (a “"Source”") to be used by such Purchaser it to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(ai) the Source is an “"insurance company general account” (as " within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“"PTE”") 95-6060 (issued July 12, 1995) in and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect of to which the amount of the general account reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) all contracts held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(ssuch plan, exceeds ten percent (10%) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the NAIC Annual Statement filed with such Purchaser’s your state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(cii) the Source is either (i1) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii2) a bank collective investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as you have disclosed to the Company in writing pursuant to this paragraph (ii), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(d1) the Source constitutes assets of an “"investment fund” " (within the meaning of Part VI V of PTE 84-14 (the “QPAM Exemption”)) managed by a “"qualified professional asset manager” " or “"QPAM” " (within the meaning of Part VI V of the QPAM Exemption), (2) no employee benefit plan’s 's assets that are managed by the QPAM 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 Part VI(c)(1Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than exceed 20% of the total client assets managed by such QPAM, (3) the conditions of Part I(c) and 1((c)and (g) of the QPAM Exemption are satisfied, (4) neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i5) the identity of such QPAM and (ii) the names of any all employee benefit plans whose assets are included in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, fund have been disclosed to the Company in writing pursuant to this clause paragraph (diii); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
Appears in 1 contract
Representations of the Purchasers. (a) Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such Purchaser is acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes, it being understood, however, that the disposition of each Purchaser’s property shall at all times be and remain within such Purchaser’s control.
(b) Each Purchaser further represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Series 2015A Notes to be purchased by it such Purchaser hereunder:
(ai) the Source is an “insurance company general account” (as the that term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan 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 plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(bii) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2)account; or
(ciii) the Source is either (ia) an insurance company pooled separate account, within the meaning of PTE 90-1 1, or (iib) a bank collective investment fund, within the meaning of the PTE 91-3838 and, and except as disclosed by such Purchaser to the Company in writing pursuant to this clause (iii), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(div) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM 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 Part VI(c)(1VI(x)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (div); or
(ev) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) section IV of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) IV of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3section IV(h) of the INHAM Exemption) owns a 105% or more interest in the Company and (ia) the identity of such INHAM and (iib) 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 (ev); or
(fvi) the Source is a governmental plan and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; or
(gvii) 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 (gvii); or
(hviii) the Source does not include assets of any employee benefit plan or Individual Retirement Accountplan, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6§3.2(b), the terms “employee benefit plan,” ”, “governmental plan,” ”, and “separate account” shall have the respective meanings assigned to such terms in section Section 3 of ERISA.
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Universal Forest Products Inc)
Representations of the Purchasers. Each Purchaser severally represents represents: (i) that it is purchasing the Notes for its own account or for one or more separate accounts maintained by it or for the account of one or more pension or trust funds and not with a view to the distribution or sale thereof, provided that the disposition of its property shall at all times be within its control; and (ii) at least one of the following statements is an accurate representation as to each source of funds (a “"Source”") to be used by such Purchaser to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(a) if an insurance company, the Source is an “insurance company general account” (as the term is defined does not include assets allocated to any separate account maintained by it in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan 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 plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60its related trust) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicilehas any interest, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is other than a separate account that is maintained solely in connection with such Purchaser’s its fixed contractual obligations under which the amounts payable, or credited, to any employee benefit such plan (or its related trust) that has any interest in such separate account (or 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2)account; or
(cb) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE Prohibited Transaction Exemption ("PTE") 90-1 or (issued January 29, 1990), (ii) a bank collective investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as such Purchaser shall have disclosed to the Company in writing pursuant to this clause (b), no employee benefit plan or group of 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 , and or (iii) the Source is an insurance company general account of which the assets are such that if any of them are, or bank agrees are deemed to maintain records be, assets of any Plan, the acquisition of the Notes by such Purchaser pursuant hereto is eligible for and make such records available as required under P▇▇ ▇▇satisfies the requirements of PTE 95-▇ ▇▇▇▇ ▇▇▇60 (▇) and (c) or PTE 91-38 Part III(b) and (cissued July 12, 1995); or
(dc) the Source constitutes assets of an “"investment fund” " (within the meaning of Part VI V of PTE 84-14 (the “QPAM Exemption”)) managed by a “"qualified professional asset manager” " or “"QPAM” " (within the meaning of Part VI V of the QPAM ExemptionPTE 84-14), no employee benefit plan’s 's assets that are managed by the QPAM 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 anaffiliate (within the meaning of Part VI(c)(1Section V(c)(1) of the QPAM ExemptionPTE 84-14) of such employer or by the same employer or by the same employee organization and managed by such QPAM, represent more than exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption PTE 84-14 are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership (applying the definition of "control" in Section V(e) of the PTE 84-14) owns a 5% or more interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any all employee benefit plans whose assets are included in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, fund have been disclosed to the Company in writing pursuant to this clause paragraph (dc); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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
(fd) the Source is a governmental plan and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; or
(ge) 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 paragraph (ge); or
(hf) the Source does not include assets of any employee benefit plan or Individual Retirement Accountplan, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
Appears in 1 contract
Sources: Note Purchase and Private Shelf Facility (Perkins Family Restaurants Lp)
Representations of the Purchasers. Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such 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 such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within its control. Each Purchaser represents that it is an institutional "accredited investor" within the meaning of Rule 501 of Regulation D as promulgated under the Securities Act of 1933 and at least one of the following statements is an accurate representation as to each source of funds (a “"Source”") to be used by such Purchaser it to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(a) the Source is an “"insurance company general account” (as " within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“"PTE”") 95-6060 (issued July 12, 1995) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any there is no employee benefit plan, treating as a single plan 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 all plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by employee organization, with respect to which the same employee organization in amount of the general account do not exceed 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 the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; orgeneral
(b) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as such Purchaser has disclosed to the Company in writing pursuant to this paragraph (b), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(dc) the Source constitutes assets of an “"investment fund” " (within the meaning of Part VI V of PTE 84-14 (the “QPAM Exemption”)) managed by a “"qualified professional asset manager” " or “"QPAM” " (within the meaning of Part VI V of the QPAM Exemption), no employee benefit plan’s 's assets that are managed by the QPAM 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 Part VI(c)(1Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any all employee benefit plans whose assets are included in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, fund have been disclosed to the Company in writing pursuant to this clause paragraph (dc); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
Appears in 1 contract
Sources: Note Agreement (Allied Capital Corp)
Representations of the Purchasers. Each Purchaser severally represents, and in entering into this Agreement the Company understands, that such Purchaser is acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within its control. Each Purchaser further represents that at least one of the following statements is an accurate representation as to each the source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(a) the Source if such Purchaser is an “insurance company company, the source of funds from which its investment is to be made is a general account” (as account of an insurance company, and the term is defined in the United States Department amount of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities for the general account contracts(s) held by or on behalf of any Benefit Plan (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “"NAIC Annual Statement”")) for the general account contract(s) held by or on behalf of any employee benefit plan 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 plans Benefit Plans maintained by the same employer (or affiliate thereof as defined in PTE PTCE 95-60) or by the same employee organization (as defined by the NAIC Annual Statement) in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s the state of domicile, and domicile of the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60insurance company; or
(b) if such Purchaser is an insurance company, to the Source is a extent that any part of such funds constitutes assets allocated to any separate account that is maintained solely by such Purchaser in connection with such 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 interest, (i)such separate account is a "pooled separate account" within the meaning of Prohibited Transaction Class Exemption90-1, as amended, in which case such Purchaser has disclosed to the Company the name of each employee benefit plan whose assets in such separate account (exceed 10% of the total assets or are expected to any participant or beneficiary exceed 10% of the total assets of such plan (including any annuitant)) are not affected in any manner by the investment performance account as of the separate account date of such purchase (and for the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2purposes of this paragraph(b); or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38, and no all employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated are deemed to such pooled be a single plan), or (ii)such separate account or collective investment fund contains only the assets of a specific employee benefit plan, complete and accurate information as to the insurance company or bank agrees identity of which such Purchaser has delivered to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)the Company; or
(dc) the Source constitutes assets of if such Purchaser is other than an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption)insurance company, no employee benefit plan’s assets that are managed by the QPAM 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 Part VI(c)(1) of the QPAM Exemption) part of such employer or by the same employee organization and managed by such QPAM, represent more than 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 maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or
(e) the Source funds constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISAassets".
Appears in 1 contract
Sources: Note Agreement (Allied Holdings Inc)
Representations of the Purchasers. (a) Each Purchaser severally of the Purchasers hereby represents to the Company that it (i) is purchasing the Notes for its own account for investment and not with a view to, or for sale in connection with, the distribution thereof or with any present intention of distributing or selling any of the Notes, provided that the disposition of the Purchaser's property shall at all times be within its control, (ii) is an "accredited investor", as defined in Regulation D under the Securities Act, and (iii) (x) has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of the investment in the Notes and (y) is able to bear the economic risk of such investment. Each of the Purchasers understands that the Notes have not been registered under the Securities Act and may not be sold or otherwise transferred by the Purchasers except pursuant to an effective registration statement under such Act or pursuant to an available exemption therefrom under such Act.
(b) Each of the Purchasers further represents to the Company that at least one of the following statements is an accurate representation as to each source of funds (a “"Source”") to be used by such Purchaser it to pay the purchase price of the Series 2015A Notes to be purchased by it hereunder:
(ai) the Source is an “"insurance company general account” (as " within the term is defined in the United States meaning of Department of Labor’s Labor Prohibited Transaction Exemption (“"PTE”") 95-6060 (issued July 12, 1995) in and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect of to which the amount of the general account reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) all contracts held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(ssuch plan, exceeds ten percent (10%) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the such general account (exclusive of separate account liabilities) plus surplus surplus, as set forth in the most recent NAIC Annual Statement filed with such Purchaser’s 's state of domicile, and the purchase is not part of an agreement, arrangement or understanding designed to benefit a “party in interest” (as that term is defined in ERISA section 3(14)) within the meaning of PTE 95-60; or
(b) the Source is a separate account that is maintained solely in connection with such 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 and the Purchaser’s fixed contractual obligations otherwise meet the requirements for a “Guaranteed Benefit Policy” as defined in ERISA section 401(b)(2); or
(cii) the Source is either (i1) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii2) a bank collective investment fund, within the meaning of the PTE 91-3838 (issued July 12, and 1991) and, except as such Purchaser has disclosed to the Company in writing pursuant to this paragraph (ii), no employee benefit plan or group of 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 , and the insurance company or bank agrees to maintain records and make such records available as required under P▇▇ ▇▇-▇ ▇▇▇▇ ▇▇▇(▇) and (c) or PTE 91-38 Part III(b) and (c)fund; or
(d1) the Source constitutes assets of an “"investment fund” " (within the meaning of Part VI V of the QPAM Exemption (PTE 84-14 (the “QPAM Exemption”14)) managed by a “"qualified professional asset manager” " or “"QPAM” " (within the meaning of Part VI V of the QPAM Exemption), (2) no employee benefit plan’s 's assets that are managed by the QPAM 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 Part VI(c)(1Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than exceed 20% of the total client assets managed by such QPAM, (3) the conditions of Part I(c1(c) and (g) of the QPAM Exemption are satisfied, (4) neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i5) the identity of such QPAM and (ii) the names of any all employee benefit plans whose assets are included in the 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 Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, fund have been disclosed to the Company in writing pursuant to this clause paragraph (diii); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% 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 and there is no applicable law that prohibits or limits that plan’s purchase of Notes pursuant to this Supplement; 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 clause (g); or
(h) the Source does not include assets of any employee benefit plan or Individual Retirement Account, other than a plan exempt from the coverage of ERISA. As used in this paragraph 6, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
Appears in 1 contract