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) YO OU PK DM INDEX NO. 653519/2023
NYSCEF BOC. NO. 12 RECEIVED NYSCEF: 01/12/2024
EXHIBITC
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i80 Group LLC
i80 Group SPECIALTY FINANCE GP LLC
This purchase agreement (this “4greement”) is being submitted in connection with i80
Group Specialty Finance GP LLC (the “General Partner”) and i80 Group LLC (the “Investment
Manager”, and together with the General Partner, the “Companies”). The party executing this
Agreement (the “Purchaser”) hereby applies to purchase Class B limited liability company
interests (“Jnterests”) in the Companies for the amount set forth on the signature page of this
Agreement and become a member (a “Member’) of each of the Investment Manager and the
General Partner on the terms and conditions described in this Agreement and set forth in the
amended and restated limited liability company agreements of the Companies (the
“LLC Agreements’) except for the change outlined in the following paragraph.
Importantly, the Purchaser acknowledges that the capital being contributed by the
Purchaser is for working capital purposes for the Companies and as a result, capital accounts for
Purchased will not increase due to this contribution.
The Purchaser must complete the following steps in connection with this Agreement:
a Carefully read and review the LLC Agreements and this Agreement.
b Provide all information requested in this Agreement, including, without limitation,
in the “Verification of Status as ‘Accredited Investor’ under Regulation D”
questionnaire.
Fill out an IRS Form W-9.
Electronically execute and submit through the Artivest portal the LLC Agreements,
this Agreement and the IRS Form W-9.
Wire the full amount of the purchase price for the Interests (the “Purchase
Amount’) to:
Bank:
SWIFT:
ABA #:
Account #:
Account Name: 180 GROUP LLC
The Purchaser’s execution and submission of this Agreement and the LLC Agreements
constitute a binding offer to purchase the Interests and an agreement to hold its offer open until
this Agreement and the LLC Agreements are accepted and countersigned, or rejected, by the
Companies. The Purchase Amount will be allocated between the Companies as determined by the
Managers (in the same proportion as each other Member’s capital contributions), and the
Purchaser’s capital account in each Company will be credited accordingly.
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To induce the Companies to accept this Agreement:
1 The Purchaser represents, warrants and covenants as follows:
a. The Purchaser understands that the offering of Interests has not been registered
under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and is
being made pursuant to Rule 506 of Regulation D promulgated under
Section 4(a)(2) of the Securities Act, which exempts from registration transactions
not involving a public offering. Interests will be sold only to Purchasers who meet
certain minimum suitability qualifications described herein. The Purchaser
understands that the Interests have not been approved or disapproved by the
Securities and Exchange Commission (the “SEC’), any state securities authority or
any other regulatory authority, nor have any of the foregoing passed upon the
accuracy or adequacy of the LLC Agreements or this Agreement.
The Purchaser understands and is aware that the Interests have not been registered
under the Securities Act or the laws of any other jurisdiction and, therefore, cannot
be sold or transferred unless they are subsequently registered or an exemption from
registration is available. The Purchaser understands that there is no obligation of
the Companies to register the Interests under the Securities Act or the laws of any
other jurisdiction, and transfer of the Interests is also restricted by the terms of the
LLC Agreements.
The Purchaser shall not offer, sell, transfer, pledge, hypothecate or otherwise
dispose of, directly or indirectly, all or any part of its Interests or any interest
therein, except in accordance with (i) applicable law, including, without limitation,
the registration requirements of the Securities Act or an exemption therefrom and
any other applicable securities laws, and (ii) the restrictions set forth in the LLC
Agreements, including, without limitation, the requirement to obtain the prior
written consent of the managers (the “Managers”) of the General Partner or the
Investment Manager, as applicable.
The Purchaser acknowledges and agrees that (i) except as specifically set forth in
Section 6.8(b) of the LLC Agreements, no Member will have the right to require
the Companies to redeem the Class B limited liability company interests held by
such Member or any portion thereof, (ii) the Members do not have the right to
withdraw their Class B limited liability company interests, and (iii) accordingly, an
investment in Class B limited liability company interests of the Companies is a
highly illiquid investment.
The Purchaser acknowledges and agrees that to the fullest extent permitted by
applicable law, this Agreement and the LLC Agreements, once executed by the
Purchaser, are irrevocable and the Purchaser will not be entitled to cancel or
terminate this Agreement or the LLC Agreements and this Agreement and the LLC
Agreements shall survive the death or legal incapacity of the Purchaser. The
Purchaser also acknowledges and agrees that this Agreement and the LLC
Agreements shall survive the subsequent death, disability, incapacity,
incompetence, termination, bankruptcy, insolvency or dissolution (as applicable)
of the Purchaser; provided that if the Companies do not accept this Agreement or
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the LLC Agreements, then such agreements shall be cancelled.
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The Purchaser acknowledges and agrees that the distribution of this Agreement or
any other materials in connection with the Interests and the offer and sale of the
Interests in certain jurisdictions may be restricted by law and that such distribution
does not constitute an offer to sell or the solicitation of an offer to buy Interests to
any person to whom, or in any jurisdiction in which, it is unlawful to make such
offer or solicitation.
The Purchaser acknowledges and agrees that the Managers may terminate the
Interests of a Member and cause such Member to withdraw from the Companies
upon five (5) days’ prior written notice if the Managers determine that the continued
participation of such Member would be detrimental to the Companies.
The Purchaser is an “accredited investor” as such term is defined in Rule 501 of
Regulation D promulgated under the Securities Act and a “United States person”
as described in Section 7701(a)(30) of the Internal Revenue Code of 1986, as
amended (the “Code”). To the extent that any “look-through” rules apply to the
Purchaser under the Securities Act, each person that holds an equity interest in the
Purchaser is, and each person that at any time in the future holds an equity interest
in the Purchaser will be, an “accredited investor’. THE PURCHASER MUST
COMPLETE THE QUESTIONNAIRE IN THIS AGREEMENT RELATING TO
ITS ACCREDITED INVESTOR STATUS.
The Purchaser is not subject to any sanction, order or other disciplinary status that
would limit its ability to invest in the Companies or that would limit the ability of
the Companies to carry out the offering of Interests (including under Regulation D).
The Purchaser is not a Foreign Financial Institution as defined in the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (the “Patriot Act”).
Ifthe Purchaser is an individual, then the Purchaser is of legal age in the Purchaser’s
state or country of residence and has legal capacity to execute, deliver and perform
its obligations under the LLC Agreements and this Agreement. The purchase of
Interests, the execution, delivery and performance of this Agreement and the
performance of obligations under the LLC Agreements have been authorized by all
necessary action on the Purchaser’s behalf, and the LLC Agreements and this
Agreement are legal, valid and binding obligations, enforceable against the
Purchaser in accordance with their respective terms. If the Purchaser is an entity,
then (i) the Purchaser is duly organized, formed, or incorporated, as the case may
be, and validly existing and in good standing, under the laws of its jurisdiction of
organization, formation or incorporation, (ii) the execution, delivery and
performance of this Agreement, the consummation of the transactions
contemplated in the Agreement and the LLC Agreements and the performance of
the Purchaser’s obligations under the Agreement and the LLC Agreements, do not
and will not conflict with, or result in any violation of or default under, any
provision of any charter, by-laws, trust agreement, partnership agreement or other
governing instrument applicable to the Purchaser, (iii) the Purchaser has full power
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and authority to make the representations and warranties in this Agreement, to
purchase Interests, and to execute, deliver and perform the Purchaser’s obligations
under this Agreement and to perform the Purchaser’s obligations under the LLC
Agreements and (iv) the Purchaser’s capital structure does not consist of bearer
shares. Any person executing this Agreement on behalf of the Purchaser has
specifically confirmed the above in connection with the making of this investment
and has actual authority to execute this Agreement on the Purchaser’s behalf.
Neither the execution and delivery of this Agreement by the Purchaser nor the
consummation of any of the transactions contemplated hereby will (i) conflict with,
result in a breach of, or constitute a default under, any indenture, mortgage, lease
or other agreement to which the Purchaser is a party or by which it or any of its
properties may be bound or (ii) result in a violation of any order, writ, injunction,
decree or award of any court or governmental authority to which the Purchaser or
any of its properties may be subject. The execution and delivery of this Agreement
by the Purchaser does not require on the part of the Purchaser any filing with, or
approval or consent of, any governmental authority that has not already been made
or obtained, except, if necessary or advisable, filings under applicable securities
laws.
The Purchaser, either alone or with its financial advisors, if any, (i) has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of an investment in Interests, (ii) has determined that
Interests are a suitable investment, (iii) understands the objectives and strategies of
the Companies, (iv) has determined that its investment in the Companies is
consistent with its investment purposes, objectives and cash flow requirements and
(v) understands that an investment in the Companies is an illiquid investment and
involves a high degree of risk, and each investor must bear the economic risk of an
investment in the Interests for an indefinite period of time. Investment in the
Companies should be considered only by persons who are financially able to
maintain their investment and who can afford the loss of all of their investment.
The Purchaser and the Purchaser’s financial advisors, if any, have investigated the
acquisition of Interests to the extent the Purchaser deems necessary or desirable,
have been afforded the opportunity to ask and receive answers to any questions and
to obtain any additional information necessary to verify the accuracy of any
representation or information set forth in the LLC Agreements and to evaluate the
merits and risks of investment in the Companies and have received complete and
satisfactory answers to all inquiries put to the Managers.
The Purchaser and the Purchaser’s financial advisors, if any, have received, read
and understand the LLC Agreements and this Agreement. The Purchaser confirms
that its purchase of Interests is being made solely on the basis of the information
contained in the LLC Agreements and this Agreement, and not in reliance on any
other information, representations or warranties, whether oral or written, provided
by any person, including, for the avoidance of doubt, the Managers or any of their
affiliates, or any information the Purchaser may have been furnished as described
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in Section I.n above. No representations or warranties have been made to the
Purchaser by the Managers or the Companies or any of their affiliates, partners,
members, directors, officers or employees, or any agent, representative or counsel
of any of the foregoing, other than the representations in this Agreement and the
LLC Agreements, and the Purchaser is not relying on any of the foregoing persons
for legal, investment or tax advice. The Purchaser has consulted with its own
professional advisers regarding any tax, legal, currency or other economic
considerations related to the investment. The Purchaser further represents and
warrants that it understands and has evaluated the risks connected with an
investment in the Companies. The Purchaser understands that the Companies are
recently formed entities and have no operating history.
The Purchaser understands that the success of the Companies will depend on the
Managers’ ability to successfully operate i80 Group Specialty Finance LP (the
“Fund”), raise capital and source investors for the Fund and implement the Fund’s
and the Companies’ business strategies and objectives. An investment in the
Companies is highly speculative and carries a significant degree of risk. There can
be no assurance that the Fund or the Companies will be able to implement their
business strategies and objectives, be profitable or avoid substantial losses, and no
guarantee or representation is made by the Managers or the Companies regarding
the performance or success of the Companies or the Fund.
The Purchaser acknowledges that the business terms of the Companies have been
established without arm’s-length negotiations with any representatives of
prospective Purchasers and that the Companies’ counsel has not represented the
Purchasers or made any representation to the Purchaser or its advisors in any aspect
of this offering.
The Purchaser understands the meaning and legal consequences of the
representations and warranties it is making herein and understands that the
Companies are relying on such representations and warranties in making their
determination to accept or reject the Purchaser’s subscription.
The Purchaser is not subscribing for Interests as a result of, or subsequent to, (i) any
advertisement, article, notice or other communication published in any newspaper,
magazine, internet site, similar media or broadcast over television or radio or (ii)
any form of general solicitation, such as a seminar or meeting whose attendees have
been invited as a result of, subsequent to or pursuant to any of the foregoing. The
Purchaser is not aware of any reason why the offering of the Interests should fail to
qualify as a private placement under the Securities Act.
The Interests (i) are being acquired for the Purchaser’s own account for investment
purposes only, (ii) are not being held by the Purchaser as nominee or trustee for
another person, (iii) are not being acquired with a view to resale or distribution and
(iv) will not be transferred by the Purchaser in violation of the LLC Agreements or
the Securities Act or the then applicable rules or regulations thereunder. The
Purchaser has no contract, undertaking, agreement or arrangement with any person
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or entity to sell, transfer or pledge the Interests purchased by the Purchaser or any
part thereof, and the Purchaser has no present plans to enter into any such contract,
undertaking, agreement or arrangement.
The address set forth in this Agreement is the Purchaser’s true and correct
residence, if an individual, or registered office or principal place of business, as
appropriate, if an entity.
The Purchaser is not subject to any of the “Bad Actor” disqualifications described
in Rule 506(d)(1)() - (viii) under the Securities Act (each, a “Disqualifying
Event’). If the Purchaser becomes subject to a Disqualifying Event at any date
after the date hereof, then the Purchaser shall use its best efforts to immediately
notify the Companies in writing of the occurrence of such Disqualifying Event.
The Purchaser understands that it may receive or have access to confidential and/or
proprietary information concerning the Companies and/or their affiliates. The
Purchaser agrees to maintain the confidentiality of all such information, as well as
information otherwise provided in connection with the offering of Interests, to the
fullest extent permitted by law and in accordance with the terms of the LLC
Agreements.
Any information contained herein or that the Purchaser has previously furnished to
the Companies with respect to its financial position and business experience is true,
correct and complete as of the date of this Agreement, and if there is any change in
such information prior to the Purchaser’s purchase of Interests, then such Purchaser
will immediately furnish in writing such revised or corrected information to the
Companies.
The representations and warranties by the Purchaser in this Agreement are true,
complete, correct and accurate as of the date hereof and shall, along with the
covenants of the Purchaser in this Agreement, survive the Purchaser’s acquisition
of the Interests. If in any respect such representations, warranties and covenants
will not be true, complete, correct and accurate at any time after the Purchaser
acquires Interests, then such Purchaser is required to give immediate notice in
writing of such fact to the Companies, specifying which representations, warranties
and/or covenants are not true, complete, correct and accurate and the reasons
therefor.
2 Anti-Money Laundering Matters:
a. The Purchaser acknowledges that the Companies may be subject to certain laws
and regulations that are designed to prohibit and actively prevent money laundering
and any activity that facilitates money laundering or the funding of terrorist or
criminal activities (“Anti-Money Laundering Regulations”).
The Purchaser represents that all evidence of identity provided in connection with
this Agreement is true, complete, correct and accurate and all related information
and documentation furnished is genuine and accurate.
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The Purchaser acknowledges that due to Anti-Money Laundering Regulations, the
Companies may require further documentation to comply with such regulations,
including, but not limited to, documentation verifying the Purchaser’s identity
and/or the source of funds used to purchase Interests, and the Purchaser agrees to
provide such documentation immediately upon request. The Purchaser further
agrees that all payments by the Purchaser to the Companies and all distributions by
the Companies to the Purchaser will only be made in the Purchaser’s name. In the
event of a delay or failure by the Purchaser to produce any information requested
in connection with this Agreement or required for identity verification purposes,
the Purchaser acknowledges that the Companies may refuse to accept this
Agreement.
The Purchaser represents, warrants and covenants that:
i Neither it, nor any person controlling, controlled by, under common control
with or having a beneficial interest in it, is an individual, organization or
entity:
A that appears on any lists of prohibited persons and entities as may
be mandated by applicable Anti-Money Laundering Regulations,
including the List of Specially Designated Nationals and Blocked
Persons! maintained by the U.S. Department of Treasury’s Office
of Foreign Assets Control (“OFAC”);
resident in, organized under the laws of, or doing business in a
country or territory prohibited by OFAC sanctions programs;
resident in, organized under or chartered under the laws of a
jurisdiction that has been designated by the U.S. Secretary of the
Treasury under Section 311 of the Patriot Act as warranting special
measures due to money laundering concerns;
that is a Foreign Shell Bank? (any persons or entities described in
sub-items A-D, collectively, “Prohibited Persons”);
that is a current or former senior foreign political figure or a
politically exposed person (“SFPF/PEP”), a member of a
SFPF/PEP’s immediate family and/or any close associate of a
SFPF/PEP; or
! Available at https://www.treasury.gov/ofac/downloads/sdnlist.pdf.
2 The term “Foreign Shell Bank” is defined to mean a “foreign bank” without a physical presence in any country. A
“foreign bank” is any bank organized under foreign law or an agency, branch or office of a bank located outside the
U.S. The term does not include an agent, agency, branch or office within the U.S. of a bank organized under foreign
law.
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F that is resident in, organized under or chartered under the laws of a
jurisdiction identified as non-cooperative by any intergovernmental
group or organization.
il It is not investing and will not invest in the Companies on behalf of or for
the benefit of any Prohibited Person.
The Purchaser represents and warrants that, except as otherwise disclosed to the
Companies in writing:
i the Purchaser is an individual or entity located in ajurisdiction that is a full
member of the Financial Action Task Force on Money Laundering3; and
il the Purchaser’s funds do not originate from, nor will they be routed through,
an account maintained at a Foreign Shell Bank, an “offshore bank’’4, a bank
organized or chartered under the laws of a jurisdiction identified as
non-cooperative by any intergovernmental group or organization, or a bank
or financial institution subject to special measures under Section 311 or
Section 312 of the Patriot Act.
The Purchaser represents, warrants and covenants that (i) the amounts to be
contributed by it to the Companies will not directly or indirectly be derived from
activities that contravene U.S. federal, state or international laws or regulations,
including Anti-Money Laundering Regulations, and (ii) the proceeds from the
Purchaser’s investment in the Companies will not be used to finance any illegal
activities.
The Purchaser acknowledges that the Companies may be obligated to freeze the
Purchaser’s investment, segregate the assets constituting the Purchaser’s
investment, withhold amounts otherwise distributable to the Purchaser, terminate
any rights the Purchaser has to future distributions, remove the Purchaser from the
Companies and/or report or disclose confidential information relating to the
Purchaser or its beneficial owners to regulatory authorities and financial
institutions, if, following the Purchaser’s investment in the Companies, the
Companies reasonably believe that the Purchaser is a Prohibited Person, has
otherwise breached its representations and covenants as to its identity or has
otherwise failed to produce additional documentation requested to verify its identity
and the source of its funds used to purchase its Interests. To the fullest extent
permitted by law, the Purchaser shall have no claim against the Companies for any
form of damages resulting from such actions.
The Purchaser represents and warrants that it (i) has conducted thorough due
diligence with respect to all of its beneficial owners, (ii) has established the
3 The list of member jurisdictions is available at http://www. fatf-gafi.org.
4 The term “offshore bank” refers to a foreign bank that is barred, pursuant to its banking license, from conducting
banking activities with the citizens of, or with the local currency of, the country that issued the license.
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identities of all beneficial owners and the source of each of the beneficial owner’s
funds and (iii) will retain evidence of any such identities, any such source of funds
and any such due diligence.
The Purchaser agrees and acknowledges that (a) the Purchaser is investing in the
Companies as a common investment vehicle rather than as a means to facilitate the
Purchaser’s individual or separate investment decisions and (b) the Interests purchased by
the Purchaser will not be held in a form used primarily to circumvent any federal securities
laws.
Tax Matters:
The Purchaser confirms under penalties ofperjury that it is a “United States person”
(as such term is defined in Section 7701(a)(30) of the Code) and the Purchaser
undertakes to advise the Companies and the Managers promptly in writing if the
Purchaser ceases to be a “United States person” during the term of the Companies.
The Purchaser understands that if it is not, or if at any time it ceases to be, a “United
States person”, it may be subject to U.S. tax withholding or other adverse
consequences, as provided in the Memorandum and the LLC Agreements. If the
Purchaser is an entity disregarded as separate from its owner for U.S. federal
income tax purposes (a “Disregarded Entity’’), then the Purchaser represents and
warrants that the representations in this Section 4.a would be true if all references
‘o “the Purchaser” were replaced with the first direct or indirect beneficial owner
of the Purchaser that is not a Disregarded Entity (the “Purchaser’s Owner’’).
The Purchaser agrees to (i) furnish to the Companies a new, properly completed,
and executed IRS Form W-9 or Substitute Form W-9 (and any accompanying
required documentation) with this Agreement and as may be requested from time
to time by the Companies and as may be required under the Internal Revenue
Service instructions to such forms, the Code, or any applicable Treasury
Regulations, (ii) certify under penalty of perjury that the taxpayer identification
number and/or social security number of the Purchaser and/or of any trustee or
custodian, as applicable and as indicated in this Agreement, is correct and
(iii) promptly inform the Companies of any change in the information disclosed in
such forms or any other relevant information.
The Purchaser will notify the Companies within sixty (60) calendar days if the
Purchaser’s IRS Form W-9, or other tax information, documentation, or
representations (including any tax-related forms) previously provided by the
Purchaser, become incorrect, obsolete (including by operation of law), or
ineffective and will promptly provide such updated forms, information,
documentation, or representations to the Companies, as applicable.
The Purchaser agrees to promptly provide such information, documentation, or
certification as may be requested by the Companies or the Managers to determine
whether withholding may be required with respect to the Interests, including any
information or certification required for the Companies to comply with any tax
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return or information filing requirements or to obtain a reduced rate of, or
exemption from, any applicable tax, whether pursuant to the laws of such
jurisdiction or an applicable tax treaty. Such information may include, without
limitation, information regarding the ultimate beneficial owners of the Purchaser
(including, for the avoidance of doubt, information to be provided by or relating to
the Purchaser’s Owner if the Purchaser is a Disregarded Entity). The Purchaser
hereby acknowledges and agrees that the Companies or the Managers may provide
any such information, documentation or certifications to any applicable tax
authority. For the avoidance of doubt and without limiting the foregoing, the
Purchaser covenants that it (i) will provide any form, certification, or other
information reasonably requested by and acceptable to the Companies or the
Managers that is necessary for the Companies or the Managers (A) to prevent
withholding or qualify for a reduced rate of withholding or backup withholding in
any jurisdiction from or through which the Companies receives payments, (B) to
satisfy reporting or other obligations under the Code, the Treasury Regulations, any
agreement with the U.S. Treasury Department, or any other government division or
department, or any applicable intergovernmental agreement or implementing
legislation or (C) to make payments (including of withdrawal proceeds) to the
Purchaser free of withholding or deduction, (ii) will update or replace such form,
certification, or other information in accordance with its terms or subsequent
amendments or as requested by the Companies or the Managers and (iii) will
otherwise comply with any reporting obligations imposed by the United States or
any other jurisdiction, including reporting obligations that may be imposed by
future legislation. The Purchaser hereby consents to the disclosure by the
Companies of the foregoing information to any governmental authority or to any
person or entity from which the Companies receives payments.
The Purchaser confirms that it is not subject to United States backup withholding.
The Purchaser understands that the Companies will not accept subscriptions from
Purchasers that are subject to United States backup withholding.
The Purchaser acknowledges that annual tax information may not be available by
April 15 of each year. As a result, the Purchaser understands that it may be required
to obtain extensions for filing U.S. federal, state and local income tax returns each
year.
The Purchaser is aware and acknowledges that (i) any U.S. federal, non-U.S.,
and/or state income tax benefits that may be available to the Purchaser may be lost
through the adoption of new laws or regulations, changes to existing laws and
regulations, or changes in the interpretation of existing laws and regulations and
(ii) the Purchaser, in making an investment, is relying solely upon the advice of its
personal tax adviser with respect to the tax aspects of an investment in the
Companies.
The Purchaser understands and acknowledges that, by reason of its investment in
the Companies, it may be required to file tax returns in jurisdictions in which the
Companies operate or, indirectly through the Fund, make investments.
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If the Purchaser is a partnership, grantor trust, S corporation, or other entity treated
as a pass-through entity for U.S. federal tax purposes (a “Pass-Through Entity”),
then (i) at no time will 50% or more of any beneficial owner’s direct or indirect
interest in the Purchaser be attributable to the Purchaser’s interest in the Companies
and (ii) the Purchaser’s beneficial owners are not investing in the Companies
through a Pass-Through Entity with a principal purpose of permitting the
Companies to satisfy the 100-partner limitation set forth in Treasury Regulations
Section 1.7704-1(h) (regarding the private placement safe harbor from treatment as
a publicly traded partnership). In addition, the Purchaser understands that the
Companies intends not to be treated as a publicly traded partnership taxable as a
corporation under the rules of Section 7704 of the Code. The Purchaser hereby
covenants and agrees that it (x) is not currently making a market in its Interests and
(y) will not transfer its Interests on an established securities market, an
over-the-counter market, a secondary market, or the substantial equivalent thereof
within the meaning of Sections 469(k)(2) and 7704(b) of the Code (and any
Treasury Regulations, revenue rulings, or other official pronouncements of the
Internal Revenue Service or the Treasury Department promulgated or published
thereunder). Ifthe Purchaser is a Disregarded Entity and the Purchaser’s Owner is
a Pass-Through Entity, then the Purchaser represents and warrants that the
representations in this Section 4.1 would be true if all references to the “Purchaser”
were replaced with “Purchaser’s Owner”.
In connection with the Purchaser’s investment in the Companies, the Purchaser
hereby waives any right granted by the Code to participate in any administrative
proceeding of the Companies for each of the taxable years in which the Purchaser
is treated as a partner in the Companies for federal income tax purposes. The
Purchaser hereby further waives any right granted in connection with the tax laws
of any state or local jurisdiction to participate in any administrative proceeding of
the Companies for each of the taxable years in which the undersigned is treated as
a partner in the Companies for purposes of the tax laws of such state or local
jurisdiction. The Purchaser hereby agrees that upon request by the Managers, it
will provide any additional information or documentation, execute any forms or
other documents, and take any other action required by law to effect such a waiver.
The Purchaser acknowledges that the information provided in connection with its
purchase of the Interests may be filed with the Internal Revenue Service or any state
or local taxing authority upon the commencement of any administrative proceeding
of the Companies.
The Purchaser hereby acknowledges that (a) the value of the Purchaser’s Interests and the
performance of the Companies may be based on unaudited and, in some cases, estimated
valuations of the Fund’s investments, (b) any valuation provided in any report to the
Purchaser may be an unaudited, estimated value and (c) such valuations may be subject to
subsequent adjustment.
The Purchaser hereby acknowledges and agrees that the Companies may present this
A
Preview
) YO OU PK DM INDEX NO. 653519/2023 NYSCEF BOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 EXHIBITC INDEX NO. 653519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 i80 Group LLC i80 Group SPECIALTY FINANCE GP LLC This purchase agreement (this “4greement”) is being submitted in connection with i80 Group Specialty Finance GP LLC (the “General Partner”) and i80 Group LLC (the “Investment Manager”, and together with the General Partner, the “Companies”). The party executing this Agreement (the “Purchaser”) hereby applies to purchase Class B limited liability company interests (“Jnterests”) in the Companies for the amount set forth on the signature page of this Agreement and become a member (a “Member’) of each of the Investment Manager and the General Partner on the terms and conditions described in this Agreement and set forth in the amended and restated limited liability company agreements of the Companies (the “LLC Agreements’) except for the change outlined in the following paragraph. Importantly, the Purchaser acknowledges that the capital being contributed by the Purchaser is for working capital purposes for the Companies and as a result, capital accounts for Purchased will not increase due to this contribution. The Purchaser must complete the following steps in connection with this Agreement: a Carefully read and review the LLC Agreements and this Agreement. b Provide all information requested in this Agreement, including, without limitation, in the “Verification of Status as ‘Accredited Investor’ under Regulation D” questionnaire. Fill out an IRS Form W-9. Electronically execute and submit through the Artivest portal the LLC Agreements, this Agreement and the IRS Form W-9. Wire the full amount of the purchase price for the Interests (the “Purchase Amount’) to: Bank: SWIFT: ABA #: Account #: Account Name: 180 GROUP LLC The Purchaser’s execution and submission of this Agreement and the LLC Agreements constitute a binding offer to purchase the Interests and an agreement to hold its offer open until this Agreement and the LLC Agreements are accepted and countersigned, or rejected, by the Companies. The Purchase Amount will be allocated between the Companies as determined by the Managers (in the same proportion as each other Member’s capital contributions), and the Purchaser’s capital account in each Company will be credited accordingly. 139819003v1 INDEX NO. 653519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 To induce the Companies to accept this Agreement: 1 The Purchaser represents, warrants and covenants as follows: a. The Purchaser understands that the offering of Interests has not been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and is being made pursuant to Rule 506 of Regulation D promulgated under Section 4(a)(2) of the Securities Act, which exempts from registration transactions not involving a public offering. Interests will be sold only to Purchasers who meet certain minimum suitability qualifications described herein. The Purchaser understands that the Interests have not been approved or disapproved by the Securities and Exchange Commission (the “SEC’), any state securities authority or any other regulatory authority, nor have any of the foregoing passed upon the accuracy or adequacy of the LLC Agreements or this Agreement. The Purchaser understands and is aware that the Interests have not been registered under the Securities Act or the laws of any other jurisdiction and, therefore, cannot be sold or transferred unless they are subsequently registered or an exemption from registration is available. The Purchaser understands that there is no obligation of the Companies to register the Interests under the Securities Act or the laws of any other jurisdiction, and transfer of the Interests is also restricted by the terms of the LLC Agreements. The Purchaser shall not offer, sell, transfer, pledge, hypothecate or otherwise dispose of, directly or indirectly, all or any part of its Interests or any interest therein, except in accordance with (i) applicable law, including, without limitation, the registration requirements of the Securities Act or an exemption therefrom and any other applicable securities laws, and (ii) the restrictions set forth in the LLC Agreements, including, without limitation, the requirement to obtain the prior written consent of the managers (the “Managers”) of the General Partner or the Investment Manager, as applicable. The Purchaser acknowledges and agrees that (i) except as specifically set forth in Section 6.8(b) of the LLC Agreements, no Member will have the right to require the Companies to redeem the Class B limited liability company interests held by such Member or any portion thereof, (ii) the Members do not have the right to withdraw their Class B limited liability company interests, and (iii) accordingly, an investment in Class B limited liability company interests of the Companies is a highly illiquid investment. The Purchaser acknowledges and agrees that to the fullest extent permitted by applicable law, this Agreement and the LLC Agreements, once executed by the Purchaser, are irrevocable and the Purchaser will not be entitled to cancel or terminate this Agreement or the LLC Agreements and this Agreement and the LLC Agreements shall survive the death or legal incapacity of the Purchaser. The Purchaser also acknowledges and agrees that this Agreement and the LLC Agreements shall survive the subsequent death, disability, incapacity, incompetence, termination, bankruptcy, insolvency or dissolution (as applicable) of the Purchaser; provided that if the Companies do not accept this Agreement or 139819003v1 the LLC Agreements, then such agreements shall be cancelled. INDEX NO. 653519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 The Purchaser acknowledges and agrees that the distribution of this Agreement or any other materials in connection with the Interests and the offer and sale of the Interests in certain jurisdictions may be restricted by law and that such distribution does not constitute an offer to sell or the solicitation of an offer to buy Interests to any person to whom, or in any jurisdiction in which, it is unlawful to make such offer or solicitation. The Purchaser acknowledges and agrees that the Managers may terminate the Interests of a Member and cause such Member to withdraw from the Companies upon five (5) days’ prior written notice if the Managers determine that the continued participation of such Member would be detrimental to the Companies. The Purchaser is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act and a “United States person” as described in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”). To the extent that any “look-through” rules apply to the Purchaser under the Securities Act, each person that holds an equity interest in the Purchaser is, and each person that at any time in the future holds an equity interest in the Purchaser will be, an “accredited investor’. THE PURCHASER MUST COMPLETE THE QUESTIONNAIRE IN THIS AGREEMENT RELATING TO ITS ACCREDITED INVESTOR STATUS. The Purchaser is not subject to any sanction, order or other disciplinary status that would limit its ability to invest in the Companies or that would limit the ability of the Companies to carry out the offering of Interests (including under Regulation D). The Purchaser is not a Foreign Financial Institution as defined in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “Patriot Act”). Ifthe Purchaser is an individual, then the Purchaser is of legal age in the Purchaser’s state or country of residence and has legal capacity to execute, deliver and perform its obligations under the LLC Agreements and this Agreement. The purchase of Interests, the execution, delivery and performance of this Agreement and the performance of obligations under the LLC Agreements have been authorized by all necessary action on the Purchaser’s behalf, and the LLC Agreements and this Agreement are legal, valid and binding obligations, enforceable against the Purchaser in accordance with their respective terms. If the Purchaser is an entity, then (i) the Purchaser is duly organized, formed, or incorporated, as the case may be, and validly existing and in good standing, under the laws of its jurisdiction of organization, formation or incorporation, (ii) the execution, delivery and performance of this Agreement, the consummation of the transactions contemplated in the Agreement and the LLC Agreements and the performance of the Purchaser’s obligations under the Agreement and the LLC Agreements, do not and will not conflict with, or result in any violation of or default under, any provision of any charter, by-laws, trust agreement, partnership agreement or other governing instrument applicable to the Purchaser, (iii) the Purchaser has full power 139819003v1 INDEX NO. 653519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 and authority to make the representations and warranties in this Agreement, to purchase Interests, and to execute, deliver and perform the Purchaser’s obligations under this Agreement and to perform the Purchaser’s obligations under the LLC Agreements and (iv) the Purchaser’s capital structure does not consist of bearer shares. Any person executing this Agreement on behalf of the Purchaser has specifically confirmed the above in connection with the making of this investment and has actual authority to execute this Agreement on the Purchaser’s behalf. Neither the execution and delivery of this Agreement by the Purchaser nor the consummation of any of the transactions contemplated hereby will (i) conflict with, result in a breach of, or constitute a default under, any indenture, mortgage, lease or other agreement to which the Purchaser is a party or by which it or any of its properties may be bound or (ii) result in a violation of any order, writ, injunction, decree or award of any court or governmental authority to which the Purchaser or any of its properties may be subject. The execution and delivery of this Agreement by the Purchaser does not require on the part of the Purchaser any filing with, or approval or consent of, any governmental authority that has not already been made or obtained, except, if necessary or advisable, filings under applicable securities laws. The Purchaser, either alone or with its financial advisors, if any, (i) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in Interests, (ii) has determined that Interests are a suitable investment, (iii) understands the objectives and strategies of the Companies, (iv) has determined that its investment in the Companies is consistent with its investment purposes, objectives and cash flow requirements and (v) understands that an investment in the Companies is an illiquid investment and involves a high degree of risk, and each investor must bear the economic risk of an investment in the Interests for an indefinite period of time. Investment in the Companies should be considered only by persons who are financially able to maintain their investment and who can afford the loss of all of their investment. The Purchaser and the Purchaser’s financial advisors, if any, have investigated the acquisition of Interests to the extent the Purchaser deems necessary or desirable, have been afforded the opportunity to ask and receive answers to any questions and to obtain any additional information necessary to verify the accuracy of any representation or information set forth in the LLC Agreements and to evaluate the merits and risks of investment in the Companies and have received complete and satisfactory answers to all inquiries put to the Managers. The Purchaser and the Purchaser’s financial advisors, if any, have received, read and understand the LLC Agreements and this Agreement. The Purchaser confirms that its purchase of Interests is being made solely on the basis of the information contained in the LLC Agreements and this Agreement, and not in reliance on any other information, representations or warranties, whether oral or written, provided by any person, including, for the avoidance of doubt, the Managers or any of their affiliates, or any information the Purchaser may have been furnished as described 139819003v1 INDEX NO. 653519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 in Section I.n above. No representations or warranties have been made to the Purchaser by the Managers or the Companies or any of their affiliates, partners, members, directors, officers or employees, or any agent, representative or counsel of any of the foregoing, other than the representations in this Agreement and the LLC Agreements, and the Purchaser is not relying on any of the foregoing persons for legal, investment or tax advice. The Purchaser has consulted with its own professional advisers regarding any tax, legal, currency or other economic considerations related to the investment. The Purchaser further represents and warrants that it understands and has evaluated the risks connected with an investment in the Companies. The Purchaser understands that the Companies are recently formed entities and have no operating history. The Purchaser understands that the success of the Companies will depend on the Managers’ ability to successfully operate i80 Group Specialty Finance LP (the “Fund”), raise capital and source investors for the Fund and implement the Fund’s and the Companies’ business strategies and objectives. An investment in the Companies is highly speculative and carries a significant degree of risk. There can be no assurance that the Fund or the Companies will be able to implement their business strategies and objectives, be profitable or avoid substantial losses, and no guarantee or representation is made by the Managers or the Companies regarding the performance or success of the Companies or the Fund. The Purchaser acknowledges that the business terms of the Companies have been established without arm’s-length negotiations with any representatives of prospective Purchasers and that the Companies’ counsel has not represented the Purchasers or made any representation to the Purchaser or its advisors in any aspect of this offering. The Purchaser understands the meaning and legal consequences of the representations and warranties it is making herein and understands that the Companies are relying on such representations and warranties in making their determination to accept or reject the Purchaser’s subscription. The Purchaser is not subscribing for Interests as a result of, or subsequent to, (i) any advertisement, article, notice or other communication published in any newspaper, magazine, internet site, similar media or broadcast over television or radio or (ii) any form of general solicitation, such as a seminar or meeting whose attendees have been invited as a result of, subsequent to or pursuant to any of the foregoing. The Purchaser is not aware of any reason why the offering of the Interests should fail to qualify as a private placement under the Securities Act. The Interests (i) are being acquired for the Purchaser’s own account for investment purposes only, (ii) are not being held by the Purchaser as nominee or trustee for another person, (iii) are not being acquired with a view to resale or distribution and (iv) will not be transferred by the Purchaser in violation of the LLC Agreements or the Securities Act or the then applicable rules or regulations thereunder. The Purchaser has no contract, undertaking, agreement or arrangement with any person 139819003v1 INDEX NO. 653519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 or entity to sell, transfer or pledge the Interests purchased by the Purchaser or any part thereof, and the Purchaser has no present plans to enter into any such contract, undertaking, agreement or arrangement. The address set forth in this Agreement is the Purchaser’s true and correct residence, if an individual, or registered office or principal place of business, as appropriate, if an entity. The Purchaser is not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)() - (viii) under the Securities Act (each, a “Disqualifying Event’). If the Purchaser becomes subject to a Disqualifying Event at any date after the date hereof, then the Purchaser shall use its best efforts to immediately notify the Companies in writing of the occurrence of such Disqualifying Event. The Purchaser understands that it may receive or have access to confidential and/or proprietary information concerning the Companies and/or their affiliates. The Purchaser agrees to maintain the confidentiality of all such information, as well as information otherwise provided in connection with the offering of Interests, to the fullest extent permitted by law and in accordance with the terms of the LLC Agreements. Any information contained herein or that the Purchaser has previously furnished to the Companies with respect to its financial position and business experience is true, correct and complete as of the date of this Agreement, and if there is any change in such information prior to the Purchaser’s purchase of Interests, then such Purchaser will immediately furnish in writing such revised or corrected information to the Companies. The representations and warranties by the Purchaser in this Agreement are true, complete, correct and accurate as of the date hereof and shall, along with the covenants of the Purchaser in this Agreement, survive the Purchaser’s acquisition of the Interests. If in any respect such representations, warranties and covenants will not be true, complete, correct and accurate at any time after the Purchaser acquires Interests, then such Purchaser is required to give immediate notice in writing of such fact to the Companies, specifying which representations, warranties and/or covenants are not true, complete, correct and accurate and the reasons therefor. 2 Anti-Money Laundering Matters: a. The Purchaser acknowledges that the Companies may be subject to certain laws and regulations that are designed to prohibit and actively prevent money laundering and any activity that facilitates money laundering or the funding of terrorist or criminal activities (“Anti-Money Laundering Regulations”). The Purchaser represents that all evidence of identity provided in connection with this Agreement is true, complete, correct and accurate and all related information and documentation furnished is genuine and accurate. 6 139819003v1 INDEX NO. 653519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 The Purchaser acknowledges that due to Anti-Money Laundering Regulations, the Companies may require further documentation to comply with such regulations, including, but not limited to, documentation verifying the Purchaser’s identity and/or the source of funds used to purchase Interests, and the Purchaser agrees to provide such documentation immediately upon request. The Purchaser further agrees that all payments by the Purchaser to the Companies and all distributions by the Companies to the Purchaser will only be made in the Purchaser’s name. In the event of a delay or failure by the Purchaser to produce any information requested in connection with this Agreement or required for identity verification purposes, the Purchaser acknowledges that the Companies may refuse to accept this Agreement. The Purchaser represents, warrants and covenants that: i Neither it, nor any person controlling, controlled by, under common control with or having a beneficial interest in it, is an individual, organization or entity: A that appears on any lists of prohibited persons and entities as may be mandated by applicable Anti-Money Laundering Regulations, including the List of Specially Designated Nationals and Blocked Persons! maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”); resident in, organized under the laws of, or doing business in a country or territory prohibited by OFAC sanctions programs; resident in, organized under or chartered under the laws of a jurisdiction that has been designated by the U.S. Secretary of the Treasury under Section 311 of the Patriot Act as warranting special measures due to money laundering concerns; that is a Foreign Shell Bank? (any persons or entities described in sub-items A-D, collectively, “Prohibited Persons”); that is a current or former senior foreign political figure or a politically exposed person (“SFPF/PEP”), a member of a SFPF/PEP’s immediate family and/or any close associate of a SFPF/PEP; or ! Available at https://www.treasury.gov/ofac/downloads/sdnlist.pdf. 2 The term “Foreign Shell Bank” is defined to mean a “foreign bank” without a physical presence in any country. A “foreign bank” is any bank organized under foreign law or an agency, branch or office of a bank located outside the U.S. The term does not include an agent, agency, branch or office within the U.S. of a bank organized under foreign law. 139819003v1 INDEX NO. 653519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 F that is resident in, organized under or chartered under the laws of a jurisdiction identified as non-cooperative by any intergovernmental group or organization. il It is not investing and will not invest in the Companies on behalf of or for the benefit of any Prohibited Person. The Purchaser represents and warrants that, except as otherwise disclosed to the Companies in writing: i the Purchaser is an individual or entity located in ajurisdiction that is a full member of the Financial Action Task Force on Money Laundering3; and il the Purchaser’s funds do not originate from, nor will they be routed through, an account maintained at a Foreign Shell Bank, an “offshore bank’’4, a bank organized or chartered under the laws of a jurisdiction identified as non-cooperative by any intergovernmental group or organization, or a bank or financial institution subject to special measures under Section 311 or Section 312 of the Patriot Act. The Purchaser represents, warrants and covenants that (i) the amounts to be contributed by it to the Companies will not directly or indirectly be derived from activities that contravene U.S. federal, state or international laws or regulations, including Anti-Money Laundering Regulations, and (ii) the proceeds from the Purchaser’s investment in the Companies will not be used to finance any illegal activities. The Purchaser acknowledges that the Companies may be obligated to freeze the Purchaser’s investment, segregate the assets constituting the Purchaser’s investment, withhold amounts otherwise distributable to the Purchaser, terminate any rights the Purchaser has to future distributions, remove the Purchaser from the Companies and/or report or disclose confidential information relating to the Purchaser or its beneficial owners to regulatory authorities and financial institutions, if, following the Purchaser’s investment in the Companies, the Companies reasonably believe that the Purchaser is a Prohibited Person, has otherwise breached its representations and covenants as to its identity or has otherwise failed to produce additional documentation requested to verify its identity and the source of its funds used to purchase its Interests. To the fullest extent permitted by law, the Purchaser shall have no claim against the Companies for any form of damages resulting from such actions. The Purchaser represents and warrants that it (i) has conducted thorough due diligence with respect to all of its beneficial owners, (ii) has established the 3 The list of member jurisdictions is available at http://www. fatf-gafi.org. 4 The term “offshore bank” refers to a foreign bank that is barred, pursuant to its banking license, from conducting banking activities with the citizens of, or with the local currency of, the country that issued the license. 139819003v1 INDEX NO. 653519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 identities of all beneficial owners and the source of each of the beneficial owner’s funds and (iii) will retain evidence of any such identities, any such source of funds and any such due diligence. The Purchaser agrees and acknowledges that (a) the Purchaser is investing in the Companies as a common investment vehicle rather than as a means to facilitate the Purchaser’s individual or separate investment decisions and (b) the Interests purchased by the Purchaser will not be held in a form used primarily to circumvent any federal securities laws. Tax Matters: The Purchaser confirms under penalties ofperjury that it is a “United States person” (as such term is defined in Section 7701(a)(30) of the Code) and the Purchaser undertakes to advise the Companies and the Managers promptly in writing if the Purchaser ceases to be a “United States person” during the term of the Companies. The Purchaser understands that if it is not, or if at any time it ceases to be, a “United States person”, it may be subject to U.S. tax withholding or other adverse consequences, as provided in the Memorandum and the LLC Agreements. If the Purchaser is an entity disregarded as separate from its owner for U.S. federal income tax purposes (a “Disregarded Entity’’), then the Purchaser represents and warrants that the representations in this Section 4.a would be true if all references ‘o “the Purchaser” were replaced with the first direct or indirect beneficial owner of the Purchaser that is not a Disregarded Entity (the “Purchaser’s Owner’’). The Purchaser agrees to (i) furnish to the Companies a new, properly completed, and executed IRS Form W-9 or Substitute Form W-9 (and any accompanying required documentation) with this Agreement and as may be requested from time to time by the Companies and as may be required under the Internal Revenue Service instructions to such forms, the Code, or any applicable Treasury Regulations, (ii) certify under penalty of perjury that the taxpayer identification number and/or social security number of the Purchaser and/or of any trustee or custodian, as applicable and as indicated in this Agreement, is correct and (iii) promptly inform the Companies of any change in the information disclosed in such forms or any other relevant information. The Purchaser will notify the Companies within sixty (60) calendar days if the Purchaser’s IRS Form W-9, or other tax information, documentation, or representations (including any tax-related forms) previously provided by the Purchaser, become incorrect, obsolete (including by operation of law), or ineffective and will promptly provide such updated forms, information, documentation, or representations to the Companies, as applicable. The Purchaser agrees to promptly provide such information, documentation, or certification as may be requested by the Companies or the Managers to determine whether withholding may be required with respect to the Interests, including any information or certification required for the Companies to comply with any tax 139819003v1 INDEX NO. 653519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 return or information filing requirements or to obtain a reduced rate of, or exemption from, any applicable tax, whether pursuant to the laws of such jurisdiction or an applicable tax treaty. Such information may include, without limitation, information regarding the ultimate beneficial owners of the Purchaser (including, for the avoidance of doubt, information to be provided by or relating to the Purchaser’s Owner if the Purchaser is a Disregarded Entity). The Purchaser hereby acknowledges and agrees that the Companies or the Managers may provide any such information, documentation or certifications to any applicable tax authority. For the avoidance of doubt and without limiting the foregoing, the Purchaser covenants that it (i) will provide any form, certification, or other information reasonably requested by and acceptable to the Companies or the Managers that is necessary for the Companies or the Managers (A) to prevent withholding or qualify for a reduced rate of withholding or backup withholding in any jurisdiction from or through which the Companies receives payments, (B) to satisfy reporting or other obligations under the Code, the Treasury Regulations, any agreement with the U.S. Treasury Department, or any other government division or department, or any applicable intergovernmental agreement or implementing legislation or (C) to make payments (including of withdrawal proceeds) to the Purchaser free of withholding or deduction, (ii) will update or replace such form, certification, or other information in accordance with its terms or subsequent amendments or as requested by the Companies or the Managers and (iii) will otherwise comply with any reporting obligations imposed by the United States or any other jurisdiction, including reporting obligations that may be imposed by future legislation. The Purchaser hereby consents to the disclosure by the Companies of the foregoing information to any governmental authority or to any person or entity from which the Companies receives payments. The Purchaser confirms that it is not subject to United States backup withholding. The Purchaser understands that the Companies will not accept subscriptions from Purchasers that are subject to United States backup withholding. The Purchaser acknowledges that annual tax information may not be available by April 15 of each year. As a result, the Purchaser understands that it may be required to obtain extensions for filing U.S. federal, state and local income tax returns each year. The Purchaser is aware and acknowledges that (i) any U.S. federal, non-U.S., and/or state income tax benefits that may be available to the Purchaser may be lost through the adoption of new laws or regulations, changes to existing laws and regulations, or changes in the interpretation of existing laws and regulations and (ii) the Purchaser, in making an investment, is relying solely upon the advice of its personal tax adviser with respect to the tax aspects of an investment in the Companies. The Purchaser understands and acknowledges that, by reason of its investment in the Companies, it may be required to file tax returns in jurisdictions in which the Companies operate or, indirectly through the Fund, make investments. 10 139819003v1 INDEX NO. 653519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/12/2024 If the Purchaser is a partnership, grantor trust, S corporation, or other entity treated as a pass-through entity for U.S. federal tax purposes (a “Pass-Through Entity”), then (i) at no time will 50% or more of any beneficial owner’s direct or indirect interest in the Purchaser be attributable to the Purchaser’s interest in the Companies and (ii) the Purchaser’s beneficial owners are not investing in the Companies through a Pass-Through Entity with a principal purpose of permitting the Companies to satisfy the 100-partner limitation set forth in Treasury Regulations Section 1.7704-1(h) (regarding the private placement safe harbor from treatment as a publicly traded partnership). In addition, the Purchaser understands that the Companies intends not to be treated as a publicly traded partnership taxable as a corporation under the rules of Section 7704 of the Code. The Purchaser hereby covenants and agrees that it (x) is not currently making a market in its Interests and (y) will not transfer its Interests on an established securities market, an over-the-counter market, a secondary market, or the substantial equivalent thereof within the meaning of Sections 469(k)(2) and 7704(b) of the Code (and any Treasury Regulations, revenue rulings, or other official pronouncements of the Internal Revenue Service or the Treasury Department promulgated or published thereunder). Ifthe Purchaser is a Disregarded Entity and the Purchaser’s Owner is a Pass-Through Entity, then the Purchaser represents and warrants that the representations in this Section 4.1 would be true if all references to the “Purchaser” were replaced with “Purchaser’s Owner”. In connection with the Purchaser’s investment in the Companies, the Purchaser hereby waives any right granted by the Code to participate in any administrative proceeding of the Companies for each of the taxable years in which the Purchaser is treated as a partner in the Companies for federal income tax purposes. The Purchaser hereby further waives any right granted in connection with the tax laws of any state or local jurisdiction to participate in any administrative proceeding of the Companies for each of the taxable years in which the undersigned is treated as a partner in the Companies for purposes of the tax laws of such state or local jurisdiction. The Purchaser hereby agrees that upon request by the Managers, it will provide any additional information or documentation, execute any forms or other documents, and take any other action required by law to effect such a waiver. The Purchaser acknowledges that the information provided in connection with its purchase of the Interests may be filed with the Internal Revenue Service or any state or local taxing authority upon the commencement of any administrative proceeding of the Companies. The Purchaser hereby acknowledges that (a) the value of the Purchaser’s Interests and the performance of the Companies may be based on unaudited and, in some cases, estimated valuations of the Fund’s investments, (b) any valuation provided in any report to the Purchaser may be an unaudited, estimated value and (c) such valuations may be subject to subsequent adjustment. The Purchaser hereby acknowledges and agrees that the Companies may present this A