Subscription Agreement Terms and Conditions
Debt Subscription Agreement
Founder, Fund Manager: Bond Asian Ventures Limited
Investment Custodian: HSBC Bank (****** insert address) ****** amend
Instructions for the Subscriber
The following instructions are provided to assist in the process of subscribing for Units of $3,000,000 nominal value each to be issued by the Fund (as defined below) (“Units”), at a price of $3,000,000 per Unit.
1. Read the Confidential Investment Memorandum, as amended from time to time (the “Investment Memorandum”) for the [503_Debt] (the “Debt”), attached hereto, and this Subscription Agreement carefully so that you fully understand all of the provisions.
2. With respect to this Subscription Agreement, do the following:
(a) Complete the subscription details page of this Subscription Agreement
(b) Complete and execute the signature page of this Subscription Agreement
(c) Complete the investor questionnaire ( for entities only)
3. Deliver the executed and initialled Subscription Agreement to the Founder below as soon as practicable:
c/o Bond Asian Ventures Ltd, Suite 1104, Crawford House, 70 Queens’ Road Central, Central, Hong Kong email: BAVGroup@gmail.com
Note: The original of any duly executed Subscription Agreement sent by facsimile must be forwarded to the Founder forthwith. Neither the Fund nor the Founder accept any responsibility for any loss arising from non-receipt by the Founder of any Subscription Agreement sent by email.
In the event that this subscription is accepted by the Fund, the Founder/ will separately notify you of:
(a) The number of Units to be issued to you,
(b) The nominative value of the subscribed Units.
Unless defined herein, terms defined in this Subscription Agreement shall have the same meanings as those defined in the Investment Memorandum.
By this Deed, the undersigned (the “Subscriber”) acknowledges having received and reviewed a copy of the Investment Memorandum and the Articles of Association for the Fund, unconditionally agrees to subscribe for the number of Units as set forth below, on the terms and conditions set out in the Investment Memorandum and the Articles of Association of the Fund and included in this Subscription Agreement in respect of its “Subscription Amount” on the subscription details page of this Subscription Agreement. By executing this Subscription Agreement, the Subscriber:
1. Agrees that:
(a) This subscription is subject to allocation and acceptance or rejection by the Fund, in whole or in part, in its sole discretion.
(b) The Units are issued pursuant to the terms and conditions as set out in the Articles of Association and that the Subscriber will meet all of its obligations as a unitholder as set out in, and subject to, the terms and conditions of the Investment Memorandum and this subscription agreement.
(c) Notice of acceptance or rejection of this subscription shall be given by the Fund / Founder to the Subscriber; in the case of acceptance, by delivery to the Subscriber of (i) an executed counterpart of this Agreement indicating the number of Units and the face value of the total Units issued as to which this subscription has been accepted by the Fund and the date of the acceptance of this subscription, and (ii) written notification of the Closing Date. In the event that this subscription is rejected in full, the Fund / Founder shall promptly return this Agreement to the Subscriber marked “cancelled”, together with any funds previously paid by the Subscriber in contemplation of the purchase of the Units, and neither party shall have in such event any further obligations to the other hereunder; provided that in such event the Subscriber shall promptly return to the Fund the Investment Memorandum and all additional documents related to this subscription, if any, in the Subscriber’s possession or under its control.
(d) It will keep the Fund informed of any changes to its account details specified on the signature page of this Subscription Agreement.
2. Represents and warrants to the Fund that:
- The execution and delivery of this Subscription Agreement, the completion of the transactions contemplated in the Investment Memorandum, and the performance of the Subscriber’s obligations hereunder and thereunder, will not conflict with, or result in any breach of or default under:
I. Any provision of any governing instrument applicable to the Subscriber;
II. Any material agreement or other instrument to which the Subscriber is a party; or
III. Any securities laws or other judgment, decree, law or regulation applicable to the Subscriber.
(b) The Subscriber is not a “U.S. person” within the meaning of Rule 902 of Regulation S under the Securities Act (as defined below) and it is not acquiring Units on behalf of or indirectly or directly for, or for the account or benefit of, a U.S. person, was not solicited to acquire Units while present in the United States, did not receive the Investment Memorandum or execute this Subscription Agreement while present in the United States and has not acquired and will not acquire any Units in the United States.
For purposes of Regulation S, a “U.S. person” means (i) any natural person who is a resident or citizen of the United States, (ii) any partnership or corporation organised or incorporated under the laws of the United States, (iii) any estate of which any executor or administrator is a U.S. person, (iv) any trust of which any trustee is a U.S. person, (v) any agency or branch of a foreign entity located in the United States, (vi) any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person, (vii) any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organised, incorporated, or (if an individual) resident in the United States and (viii) any partnership or corporation if (1) organised or incorporated under the laws of any foreign jurisdiction; and (2) formed by a U.S. person principally for the purpose of investing in securities not Registered under the Securities Act, unless it is organised or incorporated, and owned, by accredited investors (as defined in Rule 501(a)) who are not natural persons, estates or trusts.
(a) The Subscriber has full power and authority to execute and deliver this Subscription Agreement, and to subscribe for and purchase Units and is authorised to pay the aggregate purchase price for such Units in the manner contemplated in this Subscription Agreement and the Investment Memorandum.
(b) The Subscriber’s subscription for and purchase of Units and the Subscriber’s execution and delivery of this Subscription Agreement have been authorised by all necessary action on its behalf, and this Subscription Agreement is and, upon acceptance of this Subscription Agreement by the Fund, shall be, the Subscriber’s legal, valid and binding obligations, enforceable against the Subscriber in accordance with its terms.
(c) Where the Subscriber is a financial institution, broker or other person applying to acquire Units on behalf of its client(s), or is otherwise acting in the capacity of agent, representative, intermediary, nominee or similar capacity, (i) the Subscriber has full power and authority on behalf of the such client(s) to subscribe for Units and to execute any necessary subscription documentation, including this Subscription Agreement and to make the representations, acknowledgements, warranties, covenants and undertakings herein on behalf of such client(s), (ii) has carried out due diligence necessary to establish the identities of such client(s) with respect to the representations herein, and (iii) will make available such information and any additional information that the Fund may reasonably request on behalf of such client(s).
3. Acknowledges and agrees as follows:
(a) To the Fund’s knowledge, no action has been taken to permit the offer of Units to the Subscriber or the distribution of the Investment Memorandum to the Subscriber in any jurisdiction where action would be required for such purpose.
(b) Neither the Fund nor any other party involved in the issue of Units shall have any responsibility for, and the Subscriber will obtain, any consent, approval or permission required for the purchase, offer or sale by the Subscriber of Units acquired by the Subscriber and the Subscriber will comply with the laws and regulations in force in any jurisdiction to which the Subscriber is subject.
4. Acknowledges that:
(a) The Subscriber has received a copy of the Investment Memorandum and has read and understood the provisions thereof and is familiar therewith, including the part entitled “Investment Considerations” which discloses certain risks and conflicts of interest associated with an investment in the Fund. All documents, records and books pertaining to the proposed investment in the Fund requested by the Subscriber have been made available to the Subscriber. The Subscriber understands and agrees that the Investment Memorandum provided to the Subscriber may be amended from time to time by the Fund.
(b) The Subscriber is not relying upon any information or representations other than as expressly contained in the Investment Memorandum and this Subscription Agreement.
(c) The Fund has no operating history and there can be no guarantee that future performance of the Fund will be profitable, or that the Fund will not incur losses, including the possible loss of the Subscriber’s entire investment.
(d) The Subscriber, together with the Subscriber’s financial, legal and tax advisers, has conducted the Subscriber’s own independent analysis of the financial, legal and tax risks involved in or resulting from an investment in the Fund.
(e) As provided for in the Investment Memorandum, the Fund Manager may engage in businesses that are competitive with that of the Fund and may have other conflicts of interest described therein, and the Subscriber agrees to such activities, even though there may be conflicts of interest inherent therein and the Subscriber further agrees that, by acquiring Units, it will be deemed to have acknowledged the existence of the actual and potential conflicts of interests identified in the Investment Memorandum and as specified therein and to have waived any claim(s) which the Subscriber or any person claiming through it may have with respect to the existence of any such conflicts of interests.
5. Represents and warrants to the Fund, the Founder, the Investment Custodian and the Fund Manager that the Subscriber, together with the Subscriber’s representative(s) and advisers, has sufficient knowledge and experience in financial, legal and tax matters to be capable of evaluating the merits and risks of an investment in the Fund and to make an informed investment decision with respect to such investment.
6. The Subscriber understands and acknowledges that (a) the Units have not been Registered under the securities laws of any jurisdiction and are being offered and sold in reliance upon exemptions provided in such laws for transactions not involving any public offering and, therefore, cannot be resold or transferred unless they are subsequently Registered under such laws or unless an exemption from such registration is available; (b) the Fund does not have any obligation or intention to Register the Units for sale under the securities laws of any jurisdiction or to supply the information that may be necessary to enable the Subscriber to sell the Units and (c) the Subscriber has no right to require the registration of the Units under the securities laws of any jurisdiction. The Subscriber understands that legends stating that the Units have not been Registered under the securities laws of any jurisdiction, and setting out or referring to the restrictions on the transferability and resale of the Units, may be placed on all documents evidencing the Units
7. Acknowledges that there are substantial risks of loss of investment involved in an investment in Units and that the investment in Units is an illiquid investment and represents and warrants to the Fund, the Founder, the Investment Custodian and the Fund Manager that the Subscriber has the financial ability to bear the economic risk of its investment including losing the Subscriber’s entire investment in the Fund, has adequate means of providing its current needs and possible contingencies and has no need for liquidity with respect to its investment in the Fund.
8. Anti-Money Laundering
(a) The Subscriber hereby represents and warrants that the proposed investment by the Subscriber in Units does not directly or indirectly contravene international or other laws or regulations of any jurisdiction, including anti-money laundering laws (a “Prohibited Investment”). The Subscriber further represents and warrants that the funds invested by the Subscriber in the Fund are not derived from illegal or illegitimate activities.
(b) The Subscriber acknowledges that due to money laundering prevention requirements applicable within any relevant jurisdiction relating to the Fund, the Subscriber, the Investment Custodian, the Fund Manager and the Founder, the Founder, Investment Custodian or any of the Fund’s agents may require proof of the Subscriber’s identity and/or source of funds and other information before this Subscription Agreement can be processed, and the Subscriber shall indemnify the Fund, the Investment Custodian, the Fund Manager, the Founder and their respective agents, and hold them harmless, against any loss arising out of the failure to process this Subscription Agreement, if such requested information has not been provided by the Subscriber in a timely manner. This may include, but not limited to, the following information:
(c) Valid ID card and passport for expatriates together with certified true copies of current utility bill(s) and any other documentation of identity providing detailed verification of the Subscriber’s identity; or.
9) Names and nationalities of the ultimate beneficial owners, if applicable, and any other relevant documentation as requested by the Fund where the Subscriber is a trust or partnership or acting on behalf of others.
For non resident, individuals or entities, a copy of the same requirements as mentioned above relatively in addition to a letter of introduction from the client’s bank in home country accompanied by yearly bank statement or Financial statement shows the volume of income and wealth.
The Subscriber understands and agrees that the Fund, the Founder, the Fund Manager and/or the Investment Custodian may release confidential information about the Subscriber and, if applicable, any Related Person, to any person, if the Founder, in its sole discretion, determines that such disclosure is required by applicable law, including the relevant rules and regulations.
The Subscriber acknowledges and agrees that the Fund, the Founder, the Fund Manager and the Investment Custodian reserve the right to request any further information which they consider to be in any way necessary to the process of verification.
(a) The Subscriber represents and warrants that (i) the Units are to be purchased with funds that are from legitimate sources in connection with the Subscriber’s regular business activity and which do not constitute proceeds of criminal conduct and (ii) the amounts being contributed by the Subscriber to the Fund were not and are not directly or indirectly derived from activities that may contravene federal, state or international laws and regulations, including anti-money laundering laws and regulations.
(b) The Subscriber hereby represents and warrants that neither the Subscriber nor, if applicable, any Related Person, is a foreign bank without a physical presence in any country other than a foreign bank that (i) is an affiliate of a depositary institution, credit union or foreign bank that maintains a physical presence in a country and (ii) is subject to supervision by a banking authority in the country regulating such affiliated depositary institution, credit union, or foreign bank. A foreign bank described in the preceding clauses is referred to herein as a “Regulated Affiliate”, and a foreign bank without a physical presence in any country that is not a Regulated Affiliate is referred to herein as a “Foreign Shell Bank”.
(c) The Subscriber understands and agrees that, notwithstanding anything to the contrary contained in any document, if, following the Subscriber’s investment in the Fund, the Founder reasonably believes that the investment is or has become a Prohibited Investment or if otherwise required by law, the Fund may be obligated to “freeze the account” of the Subscriber, by restricting any distributions with respect to the Subscriber’s Units. In addition, in any such event, the Subscriber may be forced to forfeit its Units or may otherwise be subject to the remedies required by law, and, to the fullest extent permitted by applicable law, the Subscriber shall have no claim against any person for any form of damages as a result of any of the actions described in this paragraph. The Fund may also be required to report such action and to disclose the Subscriber’s identity or provide other information with respect to the Subscriber to Governmental Entities.
(d) The Subscriber hereby represents and warrants that, except as otherwise disclosed to the Fund in writing: (i) neither the Subscriber nor, if applicable, any Related Person, is resident in, or organised or chartered under the laws of, any foreign country that has been designated as non cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organisation, such as the Financial Action Task Force on Money Laundering (a “Non Cooperative Jurisdiction”); (ii) the subscription funds of the Subscriber and, if applicable, any Related Person, do not originate from, nor will they be routed through, an account maintained at (1) a Foreign Shell Bank, (2) a foreign bank (other than a Regulated Affiliate) 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, or (3) a bank organised or chartered under the laws of a NonCooperative Jurisdiction.
10. Acknowledges and agrees that by completing this Subscription Agreement, the Subscriber is contracting on an unconditional and irrevocable basis with the Fund to subscribe for Units and that the Subscriber will not be permitted to withdraw its application for investment in the Units.
11. Acknowledges and agrees that by completing this Subscription Agreement, the Subscriber is required to ascertain and ensure the Subscriber has the financial capacity to make full payment for the Units as and when required by the Fund.
12. Acknowledges and agrees that:
(a) Information supplied on this Subscription Agreement and otherwise in connection with the Subscriber’s subscription for Units may be held by the Fund, the Founder, the Investment Custodian and the Fund Manager and will be used for the purpose of processing the Subscriber’s subscription and investment in the Units, and may also be used for the purpose of carrying out the Subscriber’s instructions or responding to any enquiry given by the Subscriber or on the Subscriber’s behalf, dealing in any other matters relating to the Subscriber’s holding of Units (including the mailing of reports or notices), forming part of the records of the recipient as to the business carried on by it, observing any legal, governmental or regulatory requirements of any relevant jurisdiction (including any disclosure or notification requirements to which any recipient of the data is subject).
(b) The Fund, Founder, the Investment Custodian and the Fund Manager may, with the prior written consent of the Subscriber, disclose and transfer such information to the Auditors of the Fund and the Fund Manager, including any of their employees, officers and directors and/or to the ultimate holding issuer of the Fund Manager and/ or its subsidiaries and/or affiliates or to any third party employed to provide administrative, computer or other services or facilities to any person to whom data is provided or may be transferred as aforesaid and/or to any regulatory authority entitled thereto by law or regulation (whether statutory or not) in connection with the Subscriber’s investment in Units.
13. Acknowledges and agrees that, subject to the Investment Memorandum and the Articles of Association, the Subscriber has no right to require the Fund to redeem the Units save in accordance with the Investment Memorandum and the Articles of Association, this Subscription Agreement is not transferable or assignable by the Subscriber and cannot be altered, amended, modified, terminated or rescinded except by a written document executed by the Fund and the Subscriber.
14. Acknowledges the confidential nature of the offering of Units and accordingly, agrees not to disclose the existence or any part of the content of the Investment Memorandum or this Subscription Agreement to any third party (other than the Subscriber’s associates and financial, legal and tax advisers in connection with an investment in the Fund) without the prior written consent of the Fund except where such disclosure is required of the Subscriber, its affiliates or controlling persons by law or regulation applicable to the entity or person making such disclosure.
15. Represents that all statements, representations, warranties or covenants made by the Subscriber in this Subscription Agreement are true and correct on the date hereof and if this subscription is accepted by the Fund in whole or in part, will be true and correct at all times in the future (including without limitation on each day on which amounts are contributed to the Fund hereunder). If any of the statements, representations, warranties or covenants made by the Subscriber in this Subscription Agreement become untrue or inaccurate at any time before the acceptance or the relevant Issue Date or, if this subscription is accepted by the Fund in whole or in part, the Subscriber shall immediately at such time notify the Fund (it being understood by the Subscriber that such notification shall in no way mitigate a default hereunder).
16. Agrees to indemnify and hold harmless the Fund, the Founder, the Fund Manager, the Investment Custodian and their respective officers, directors and employees (the “Indemnified Parties”) from and against any loss, liability, cost or expense (including attorneys’ fees, taxes and penalties) to the extent resulting, directly or indirectly, from any misrepresentation or breach of any warranty, condition, covenant or agreement set forth in this Subscription Agreement or in any other document delivered by the Subscriber to the Fund other than where such loss, liability, cost or expense arose as a result of the gross negligence or wilful default of any of the Indemnified Parties.
17. Acknowledges and agrees that completion of the subscription of Units contemplated under this Subscription Agreement shall not affect the accrued rights and liabilities of the parties hereto prior to such completion, if any, and further that rights and obligations of the parties will not merge on completion of any transaction under this Agreement but will survive the execution and delivery of any assignment or other documents entered into for the purpose of implementing any transaction.
18. Acknowledges and agrees that completion of the subscription of Units contemplated under this Subscription Agreement shall not affect the accrued rights and liabilities of the parties hereto prior to such completion, if any, and further that rights and obligations of the parties will not merge on completion of any transaction under this Agreement but will survive the execution and delivery of any assignment or other documents entered into for the purpose of implementing any transaction.
19. Agrees that each party to this Agreement shall bear its own legal and other professional costs and expenses incurred in connection with the review and implementation of this Subscription Agreement.
This Subscription Agreement shall be governed by and construed in accordance with the laws of the United Kingdom.
20. In the case of a joint account, instructions must be signed by both account holders, unless all account holders appoint one of them (the “Appointed Signatory”) to sign instructions on their behalf, in which case the Fund will follow such instructions signed by the Appointed Signatory until such appointment is rescinded by any one of the account holders
Serial No. : 1000
Terms and Conditions: by signing this Subscription Agreement I/We hereby confirm that I/We have received a copy of the Investment Memorandum, Subscription Terms and Conditions of the 503 Debt Fund and I/We confirm that I/We have read, understood and accepted all the information and the conditions contained in this document. I/We confirm that the information I/We have provided in this application is true and accurate. Based on the foregoing I/We subscribe for the number of Units which have been mentioned in this Subscription Agreement.