1
VENTURE LENDING & LEASING II, INC.
SUBSCRIPTION AGREEMENT
The undersigned (the "Subscriber"), hereby subscribes to purchase
shares of Common Stock, $.001 par value ("Shares"), issued by Venture Lending &
Leasing II, Inc., a Maryland corporation (the "Fund"), in the amount set forth
on the signature page below (the "Capital Commitment"), on the terms and
conditions set forth herein. (Capitalized terms used and not defined in this
Agreement have the meanings assigned to them in the Private Offering Memorandum
referred to below.)
1. SALE AND PURCHASE OF SHARES. Subject to the terms and conditions
set forth in this Agreement, and in reliance upon the representations and
warranties of the respective parties set forth in this Agreement, the Fund
hereby agrees to sell to the Subscriber, and the Subscriber irrevocably
subscribes for and agrees to purchase from the Fund, Shares in the amount of
its Capital Commitment.
2. CLOSINGS. The Fund will hold a Closing ("Closing") on or before
December 31, 1997 but only if, as of such date, the Fund has received
subscriptions for an aggregate amount of at least $50 million in Shares, and
may hold one or more additional Closings involving different investors shall,
from time to time thereafter, but not later than nine months following the
initial Closing. At each Closing, the Fund shall execute and deliver to the
Subscriber a duplicate original of this Agreement indicating the amount of the
Capital Commitment as to which the Subscription has been accepted, which shall
thereafter be deemed the Subscriber's Capital Commitment for all purposes
hereunder.
3. CAPITAL CALLS. Subscriber agrees to purchase Shares with a
purchase price equal to the amount of the Subscriber's Capital Commitment, in
one or more installments and in the amounts and on the dates specified by the
Fund in one or more written notices ("Capital Calls") conforming to the
requirements of this Agreement. The purchase price per Share of the Shares
purchased pursuant to each Capital Call will be the greater of (a) $1,000 or
(b) the Fund's net asset value per Share ("Net Asset Value") on the date of
each purchase, as determined in conformity with the requirements of the
Investment Company Act of 1940, as amended ("1940 Act").
If, at the time of the Closing at which the Subscriber's subscription
is accepted, Capital Calls have been given to other investors whose
subscriptions were accepted at prior Closings ("Earlier Investors"), then
Subscriber will purchase Shares at the Closing with a purchase price equal to
the Subscriber's Capital Commitment multiplied by a fraction, the numerator of
which is the aggregate amount of all Capital Calls that have been made to
Earlier Investors and the denominator of which is the aggregate amount of all
Capital Commitments of Earlier Investors. The purchase price for the Shares so
purchased will be the greater of (a) $1,000 or (b) Net Asset Value on the date
of such purchase.
Capital Calls shall be deemed made when mailed to the Subscriber at
least 15 days before the date for the purchase of Shares specified in the
Capital Call, by first class mail to the Subscriber's address specified on the
signature page of this Agreement or such other address as the Subscriber shall
notify the Fund in writing. No Capital Call shall be made after the fourth
anniversary of the first Closing, and any uncalled portion of the Subscriber's
Capital Commitment as of that anniversary date will lapse as to the uncalled
portion of the Commitment.
4. MANNER OF PAYMENT. Payments made to purchase Shares specified in a
Capital Call shall be made on or before the payment date specified in the
Capital Call therefor (the "Payment Date"). Payments shall be made by wire
transfer or by personal check, in accordance with payment instructions included
with each Capital Call.
2
5. PAYMENT DEFAULT. If payment for the purchase of Shares is received
by the Fund from the Subscriber later than 14 days after the Payment Date,
interest will be charged on the overdue amount, calculated at a daily rate
equal on an annualized basis to four percentage points over the highest rate of
interest reported from time to time as a "prime rate" by The Wall Street
Journal (provided that, if such rate is in excess of the maximum rate of
interest permitted by law, interest will be charged at such maximum rate). If
a default in a payment under this Subscription Agreement (including interest
charges) remains uncured for 30 days following a payment date, the Fund may, at
its option, pursue any or all of the following remedies: (i) cancel the balance
of the Subscriber's subscription (including the installment as to which the
Subscriber had defaulted), (ii) assign the remaining balance of the
Subscriber's subscription (including the installment as to which the Subscriber
has defaulted) to another investor selected by the Fund and/or (iii) repurchase
the Shares previously purchased by the Subscriber at a purchase price per Share
equal to the lesser of 60% of the Shares' then-current Net Asset Value or the
prices at which the Subscriber purchased the Shares. The election by the Fund
to pursue one or more of these remedies will not preclude the Fund from
pursuing any rights it may have to seek judicial enforcement of the
Subscriber's subscription obligation.
6. RESTRICTION ON ASSIGNMENT OF SUBSCRIPTION AGREEMENT. Neither this
Agreement nor any rights or interests herein may be assigned by the Subscriber
nor may the obligations of the Subscriber be assumed or performed by another,
other than a successor to the entire business and affairs of the Subscriber,
without the express prior written consent of the Fund. The Fund may withhold
consent to the assignment of this Agreement in its sole discretion. Except as
provided in Section 5 hereof, neither this Agreement nor any rights or
interests herein may be assigned by the Fund
7. RESTRICTION ON TRANSFER OR ASSIGNMENT OF SHARES. Neither the
Shares to be issued hereunder nor any right or interest therein may be sold,
assigned, pledged or otherwise transferred by the Subscriber without the
consent of the Fund. Without limiting the foregoing, the Fund may withhold
consent to a proposed transfer if the Fund reasonably determines that any of
the following requirements are not met:
(i) The transfer is made to an institutional or individual
accredited investor who the Fund determines would have been eligible
to participate in the initial offering of the Shares, in a transaction
that, in the opinion of counsel for the Subscriber and counsel for the
Fund, complies with the requirements of the Securities Act of 1933
(the "1933 Act") and any applicable state securities laws;
(ii) The transfer is made in a transaction that the Fund determines,
after consideration of an opinion of counsel for the proposed
transferee and such additional counsel as the Fund may wish to consult
on the matter, will not make it more difficult for the Fund to comply
with the requirements of the 1933 Act applicable to the Fund and its
operations, applicable state securities laws, the 1940 Act, the
Internal Revenue Code of 1986, as amended (the "Code") or the Employee
Retirement Income Security Act of 1974 ("ERISA"); and
(iii) The transfer is made to a transferee who agrees to be bound by
all the provisions of this Agreement that pertain to an owner of
Shares, including provisions relating to the repurchase of the Shares
being transferred in the event of a payment default by the party
liable to meet additional capital calls hereunder.
To facilitate compliance with Section 6 and this Section 7 and with
the pertinent provisions of the Articles of Incorporation of the Fund, the
Subscriber will not effect a transaction restricted by either such Section
without advance notice to the Fund and prior written approval by the Fund.
2
3
A transfer of all or some of the Shares owned by a shareholder will
not relieve the shareholder of any unfulfilled subscription obligation, unless
the Fund expressly consents in writing to the assumption of the transferor's
Subscription Agreement by another party.
8. REPRESENTATIONS AND WARRANTIES OF THE FUND. The Fund represents
and warrants that:
(i) The Fund is duly organized, validly existing and in good
standing under the laws of the State of Maryland and has the power and
authority to carry on its business as now conducted and as proposed to
be conducted in the Fund's Private Offering Memorandum ("Memorandum")
and to issue the Shares subscribed for hereby. This Agreement and any
other documents executed and delivered by the Fund in connection
herewith have been duly authorized, executed and delivered by the
Fund, and are the legal, valid and binding obligations of the Fund
enforceable in accordance with their respective terms.
(ii) The execution and delivery of this Agreement and any
other documents executed and delivered by the Fund in connection
herewith do not, and the performance and consummation of the
transactions set forth or contemplated herein will not, contravene or
result in a default under any provision of existing law or regulations
to which the Fund is subject, the provisions of the trust instrument,
charter, by-laws or other governing documents of the Fund or any
indenture, mortgage or other instrument or agreement to which the Fund
is a party or by which it is bound and does not require on the part of
the Fund any approval, authorization, license or filing from or with
any federal, state, municipal or foreign board or agency (except such
approvals, authorizations, licenses or filings as have been obtained
or made).
(iii) The Fund has filed an election with the Securities and
Exchange Commission, pursuant to Section 54(a) of the 1940 Act, to be
subject to the provisions of Sections 55 through 65 of the 1940 Act.
9. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. The Subscriber
represents and warrants that:
(i) The Subscriber is duly organized, validly existing and in
good standing under the laws of the jurisdiction wherein it is
organized and has the power and authority to carry on the activities
in which it is engaged and to purchase the Shares subscribed for
hereby. This Agreement and any other documents executed and delivered
by the Subscriber in connection herewith have been duly authorized,
executed and delivered by the Subscriber, and are the legal, valid and
binding obligations of the Subscriber enforceable in accordance with
their respective terms.
(ii) The execution and delivery of this Agreement and any
other documents executed and delivered by the Subscriber in connection
herewith do not, and the performance and consummation of the
transactions set forth or contemplated herein will not, contravene or
result in a default under any provision of existing law or regulations
to which the Subscriber is subject, the provisions of the trust
instrument, charter, by-laws or other governing documents of the
Subscriber or any indenture, mortgage or other instrument or agreement
to which the Subscriber is a party or by which it is bound and does
not require on the part of the Subscriber any approval, authorization,
license or filing from or with any federal, state, municipal or
foreign board or agency (except such approvals, authorizations,
licenses or filings as have been obtained or made).
(iii) If the Subscriber is an employee benefit plan as defined
in ERISA (an "ERISA Plan"), (a) the execution and delivery of this
Agreement and any other documents executed and delivered by the
Subscriber in connection herewith do not, and the performance and
consummation of the transactions set forth or contemplated herein will
not, contravene or result in a default under any provision of existing
law or regulations to which the Subscriber is subject or the
provisions of any trust instrument or other governing documents of the
Subscriber; (b) the Subscriber has caused this Agreement to be
executed by one or more of its fiduciaries thereunto duly authorized;
and (c) such fiduciaries, by executing and delivering this Agreement
on behalf of such ERISA Plan, represent and warrant that (w) they and
their co-fiduciaries, if any, have been
3
4
informed of the Fund's investment objectives, policies and strategies,
(x) the decision to invest plan assets in the Fund was made with
appropriate consideration of relevant investment factors with regard
to such ERISA Plan; (y) such decision was made by such fiduciaries
without reliance on any investment advice or recommendation provided
by the Fund, Westech Investment Advisors, Inc. ("Westech Investment
Advisors") or Siguler Guff Advisers, L.L.C. ("Siguler Guff Advisers")
and is consistent with the duties and responsibilities imposed upon
fiduciaries with regard to their investment decisions under ERISA; and
(z) if the Fund's underlying assets are deemed to be "plan assets" of
ERISA Plan investors, such fiduciaries shall be deemed to have
appointed Westech Investment Advisors and Siguler Guff Advisers as
investment managers of the ERISA Plan Subscribers with respect to the
assets managed in the Fund.
(iv) The Shares being subscribed for by the Subscriber will be
purchased for the account of the Subscriber for investment only and
not with a view to, or with any intention of, a distribution or resale
thereof, in whole or in part, or the grant of any participation
therein. The Subscriber acknowledges that the Shares have not been
registered under the 1933 Act or any state securities laws, cannot be
disposed of unless they are subsequently registered under the 1933 Act
and any applicable state securities laws, or an exemption from
registration is available. The Subscriber further understands that
the Fund is not obligated to file a registration statement or a
notification of registration under the 1933 Act or any state
securities law and has no intention to do so, nor does the Fund have
any other obligation to take or refrain from taking any action that
would make available any exemption for the sale of Shares without
registration.
(v) The Subscriber acknowledges that the Fund will accept this
subscription, and issue the Shares as contemplated hereunder, in a
transaction intended to be exempt from registration under the 1933 Act
under Regulation D thereunder. The Subscriber represents and warrants
that it has reviewed the definition of "accredited investor" under
Regulation D, as set forth in the Appendix to this Agreement, and
confirms that it meets the requirements for qualification as an
"accredited investor."
(vi) The Subscriber has received and carefully reviewed the
Memorandum and understands that any information provided other than in
the Memorandum has been furnished on the understanding that the
Subscriber will refer to the Memorandum for an authoritative statement
on all matters covered therein with respect to the Fund and other
information concerning the Offering. The Subscriber has had reasonable
time and opportunity to ask questions and receive answers concerning
the terms and conditions of the offering and the proposed operations
of the Fund, and has received responses to such questions that it has
chosen to ask. To the extent that Subscriber may have received any
information regarding the past results of similar funds managed by
Westech Investment Advisors, Siguler Guff Advisers or any of their
affiliates, Subscriber acknowledges that such information is not
intended to predict actual performance of the Fund and that Subscriber
has not relied on such performance results for that purpose. In this
regard, the Subscriber understands that past performance does not
guarantee future results The investment performance of the Fund
differ substantially from the performance to date of similar funds
managed by Westech Investment Advisors, Siguler Guff Advisers or any
of their affiliates.
(vii) The Subscriber recognizes that an investment in the Fund
involves certain risks and it has taken full cognizance of and
understands the risk factors relating to a purchase of Shares,
including those set forth under the headings "Risk Factors" in the
Memorandum. The Subscriber is capable of bearing a high degree of
risk, including the possibility of a loss of its investment and the
lack of a public market such that it will not be possible to readily
liquidate the investment. The Subscriber has such knowledge and
experience in business and financial matters as to be capable of
evaluating the merits and risks of an investment in the Shares and
protecting its own interest in connection with the investment in the
Shares.
4
5
(viii) The Subscriber acknowledges that it has not relied upon
the Fund, Westech Investment Advisors, Siguler Guff Advisers or any of
their employees, directors, officers or agents for any investment,
tax, legal or ERISA advice in connection with its purchase of Shares
and that the Subscriber has consulted, to the extent necessary, its
own advisers with respect to the investment, tax, legal or ERISA
considerations of a purchase of Shares.
(ix) The Subscriber acknowledges that there have been no
guarantees or warranties made to it by the Fund, Westech Investment
Advisors, Siguler Guff Advisers, any of their employees, directors,
officers or agents, expressly or by implication, other than as
contained in the Memorandum, with respect to (i) the approximate
length of time that it will be required to remain an owner of its
Shares; or (ii) the percentage of profit and/or the amount or type of
consideration, profit or loss to be realized as a result of its
investment.
10. COVENANTS OF THE SUBSCRIBER. The Subscriber agrees with the Fund
that:
(i) For so long as the Subscriber owns Shares, the Subscriber
shall, upon request, disclose to the Fund such information with
respect to direct or indirect holdings of such Shares as the Fund
deems necessary to comply with provisions of the Internal Revenue Code
of 1986 applicable to the Fund, to comply with requirements of any
other appropriate taxing authority, or to comply with the provisions
of the 1940 Act, as any of said laws may be amended from time to time.
(ii) The Subscriber, if an XXX or an ERISA Plan, will furnish
to the Fund promptly upon its request the information called for by
applicable "prohibited transaction" regulations of the Department of
Labor and any other information with respect to Subscriber's parties
in interest as the Fund may reasonably require.
(iii) The Subscriber will indemnify and hold the Fund harmless
from and against any and all loss, damage or liability due to or
arising out of a breach of any representation or warranty of the
Subscriber in this Agreement or any other document furnished by it to
the Fund.
11. NOTICES. The address of the Subscriber for all purposes shall be
the address set forth on the signature page to this Agreement, or such other
address of which the Fund has received notice in accordance with the provisions
hereof. The address of the Fund for all purposes shall be c/o Westech
Investment Advisors, Inc., 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX
00000, or such other address of which the Subscriber has received notice in
accordance with the provisions hereof. Any notice or communication to be given
under this Agreement shall be made in writing and, unless otherwise herein
provided, shall be deemed to have been given when sent by first class to such
party at such address.
12. APPLICABLE LAW. This Agreement and the rights and obligations of
the parties hereunder shall be construed in accordance with and governed by the
laws of the State of New York.
13. COUNTERPARTS; OTHER AGREEMENTS. This Agreement may be executed in
any number of counterparts, and each of such counterparts shall, for all
purposes, constitute one agreement binding on all the parties, notwithstanding
that all parties are not signatories to the same counterpart.
14. MISCELLANEOUS. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties and
their heirs, executors, administrators, successors, legal representatives and
assigns.
This Agreement constitutes the entire agreement among the parties
pertaining to the subject matter contained in this Agreement and supersedes all
prior understandings of the parties. The invalidity or unenforceability of any
one provision of this Agreement shall in no way affect the validity of any
other provision, and all other provisions shall
5
6
remain in full force and effect. No waiver by any party of any breach of any
term hereof shall be construed as a waiver of any subsequent breach of that
term or any other term of the same or of a different nature.
15. TAX CERTIFICATION. The Subscriber certifies that (1) the taxpayer
identification provided above the Subscriber signature is correct and (2) the
Subscriber is not subject to backup withholding because (i) the Subscriber has
not been notified that the Subscriber is subject to backup withholding as a
result of failure to report interest and dividends or (ii) the Internal Revenue
Service has not notified the Subscriber that the Subscriber is subject to
backup withholding. [Strike out clause (2) if incorrect.]
IN WITNESS WHEREOF, this Agreement has been executed by the Subscriber
as of the date of the Subscriber's signature set forth on the signature page
hereto and, if accepted by the Fund, becomes an Agreement binding on the Fund
as of the date of the signature signifying acceptance set forth on the attached
signature page.
6
7
APPENDIX A
DEFINITION OF "ACCREDITED INVESTOR" CONTAINED IN REGULATION D
UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT")
(1) Any bank as defined in section 3(a)(2) of the Act, or any savings
and loan association or other institution as defined in section 3(a)(5)(A) of
the Act whether acting in its individual or fiduciary capacity; any broker or
dealer registered pursuant to section 15 of the Securities Exchange Act of
1934; any insurance company as defined in section 2(13) of the Act; any
investment company registered under the Investment Company Act of 1940 or a
business development company as defined in section 2(a)(48) of that Act; any
Small Business Investment Company licensed by the US Small Business
Administration under section 301(c) or (d) of the Small Business Investment Act
of 1958; any plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, if such plan has total assets
in excess of $5,000,000; any employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974, if the investment decision is
made by a plan fiduciary, as defined in section 3(21) of such act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with investment decisions made
solely by persons that are accredited investors;
(2) Any private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the issuer
of the securities being offered or sold, or any director, executive officer, or
general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds $1,000,000;
(6) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that
person's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current year;
(7) Any trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited
investors.
