Qualified Purchaser Definition
Please review both Part I and Part II below.
Qualified Purchaser Representation (Part I). The Investor is a “qualified purchaser” (within the meaning of Section 2(a)(51) under the Companies Act), if any of the following are true with respect to the Investor:
(a) The Investor is an individual (including any person who is acquiring the Interest with his or her spouse in a joint capacity, as community property or similar shared interest) who either individually or together with the Investor’s spouse, owns Investments that are Valued at not less than $5,000,000.
(b) The Investor is an entity that owns Investments that are Valued at not less than $5,000,000 and is owned directly or indirectly by two (2) or more natural persons related as siblings, spouses (including former spouses) or direct lineal descendants by birth or adoption, spouses of such persons, the estates of such persons, or foundations, charitable organizations or trusts established by or for the benefit of such persons.
(c) The Investor is a trust not covered by clause (b) above and not formed for the specific purpose of acquiring the Interest, as to which the trustee or other person authorized to make decisions with respect to the trust and each settlor or other person who has contributed assets to the trust is a person described in clause (a) or (b) above or clause (d) below.
(d) The Investor is an entity, acting for its own account or the accounts of others described in clause (a), (b) or (c) above, this clause (d) or clause (e) below, that in the aggregate owns and invests on a discretionary basis Investments that are Valued at not less than $25,000,000.
(e) The Investor is an entity, all of the outstanding securities of which are owned by persons or entities described in clause (a), (b), (c) or (d) above or this clause (e).
(f) The Investor is a “qualified institutional buyer” as defined in paragraph (a) of Rule 144A under the Securities Act, acting for its own account, the account of another qualified institutional buyer, or the account of a qualified purchaser; provided that (i) a dealer described in paragraph (a)(1)(ii) of Rule 144A must own and invest on a discretionary basis at least $25,000,000 in securities of issuers that are not affiliated persons of the dealer and (ii) a plan referred to in paragraph (a)(1)(i)(D) or (a)(1)(i)(E) of Rule 144A, or a trust fund referred to in paragraph (a)(1)(i)(F) of Rule 144A that holds the assets of such a plan, will not be deemed to be acting for its own account if investment decisions with respect to the plan are made by the beneficiaries of the plan, except with respect to investment decisions made solely by the fiduciary, trustee or sponsor of such plan.
Qualified Purchaser Representation (Part II). If one of the representations set forth in clauses (b) through (f) in Part I above are true and the Investor would be treated as an “investment company” under the Companies Act but for the fact that the Investor qualifies for one of the exemptions from the definition of “investment company” provided for in Sections 3(c)(1) or 3(c)(7) of the Companies Act, in order for the Investor to indicate that it is a “qualified purchaser” the Investor certifies that the Investor has read and understands the provisions of Section 2(a)(51)(C) of the Companies Act and Rule 2a51-2 promulgated under the Companies Act excerpted below and can make one of the following representations:
(a) No consent of the Investor’s direct or indirect beneficial owners is required for the Investor’s treatment as a “qualified purchaser” (within the meaning of Section 2(a)(51) under the Companies Act) with respect to the Fund.
(b) Both of the following are true (NOTE – this representation is only required if Investor was formed on or before April 30, 1996): (A) all of the beneficial owners of the Investor’s outstanding securities (other than short-term paper), determined in accordance with Section 3(c)(1)(A) of the Companies Act, that acquired such securities on or before April 30, 1996 have consented to the Investor’s treatment as a “qualified purchaser” under the Companies Act with respect to the Fund; and (B) each direct and indirect owner of Investor who: (i) acquired its interest in Investor on or before April 30, 1996; and (ii) would be an “investment company” under the Companies Act but for the exclusions from the definition of “investment company” provided for in Sections 3(c)(1) or 3(c)(7) of the Companies Act, has consented to treatment of the Investor has a “qualified purchaser" under the Companies Act with respect to the Fund.
(c) If one of the representations set forth in clauses (b) or (c) in Part I above are true, all of the trustees, directors or Managers of the Investor have consented to the Investor’s treatment as a “qualified purchaser” (within the meaning of Section 2(a)(51) under the Companies Act) with respect to the Fund.
 For purposes of this paragraph, the terms “Investments” and “Valued” shall have the meanings as follows:
“Investments” shall mean any of the following:
(i) “Securities” as such term is defined by Section 2(a)(1) of the Securities Act. Notwithstanding the foregoing, securities of an issuer that controls, is controlled by, or is under common control with the Subscriber shall not be deemed Investments unless the issuer is:
(A) An investment company or a company that would be an investment company but for the exclusions provided by Sections 3(c)(1) through 3(c)(9) of the Companies Act, a foreign bank or insurance company, an issuer of asset-backed securities that meets certain requirements or a commodity pool;
(B) A company whose equity securities are listed on a national securities exchange, traded on Nasdaq or listed on a “designated offshore securities market” (as defined by Regulation S promulgated pursuant to the Securities Act); or
(C) A company with shareholders’ equity of not less than $50,000,000 (determined in accordance with generally accepted accounting principles) as reflected on the company’s most recent financial statements (provided such financial statements present information as of a date not more than sixteen (16) months preceding the Subscriber’s investment in the Company).
(ii) Real estate held for investment purposes (e., not used by the undersigned for personal purposes or as a place of business or in connection with the trade or business of the undersigned).
(iii) “Commodity Interest” (e., commodities futures contracts, options on such contracts or options on commodities that are traded on or subject to the rules of (i) any contract market designated for trading under the Commodity Exchange Act and rules thereunder or (ii) any board of trade or exchange outside the United States, as contemplated in Part 30 of the rules under the Commodity Exchange Act) held for investment purposes.
(iv) Physical commodities (with respect to which a Commodity Interest is traded on a market specified in clause (iii) above) held for investment purposes.
(v) Financial contracts within the meaning of Section 3(c)(2)(B)(ii) of the Companies Act held for investment purposes.
(vi) If the Subscriber is a company that would be an investment company but for the exclusion provided by Section 3(c)(1) or 3(c)(7) of the Companies Act, or a commodity pool, any amounts payable to the Subscriber pursuant to a binding commitment pursuant to which a person has agreed to acquire an interest in, or make capital contributions to, the Subscriber upon demand by the Subscriber.
(vii) Cash and cash equivalents (including bank deposits, certificates of deposit, bankers acceptances and similar bank instruments held for investment purposes and the net cash surrender value of insurance policies).
“Valued” shall mean either the fair market value or cost of Investments net of the following deductions:
(i) the amount of any outstanding indebtedness incurred to acquire such Investments; and
(ii) if the holder of the Investment is a company described in Section 6(b) of the Investor Questionnaire, any outstanding indebtedness incurred by any owner of such company to acquire such Investments.