Exhibit 4.1

HIGHLY CONFIDENTIAL & TRADE SECRET

APS BDC, LLC

Units of Limited Liability Company Interests

FORM OF SUBSCRIPTION AGREEMENT

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

APS BDC, LLC

SUBSCRIPTION CHECKLIST

Please read this checklist after completing the attached Subscription Booklet of

APS BDC, LLC (the “Subscription Booklet”).

 

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

APS BDC, LLC

SUBSCRIPTION INSTRUCTIONS

This subscription booklet (the “Subscription Booklet”) relates to the offering of units of limited liability company interests (“Units”) of APS BDC, LLC, a Delaware limited liability company (the “Company”) that intends to elect to be treated as a business development company under the Investment Company Act of 1940, as amended (the “1940 Act”). This Subscription Booklet contains all of the materials necessary for you to subscribe for the Units. Prior to completing such materials, you should read the Company’s Form 10 Registration Statement filed with the U.S. Securities and Exchange Commission (the “SEC”), the Limited Liability Company Agreement of the Company (as amended, modified and/or restated from time to time, the “LLC Agreement”), the Investment Advisory Agreement entered into between the Company and OHA Private Credit Advisors II, L.P., a Delaware limited partnership (the “OHA Adviser”), and the Investment Advisory Agreement entered into between the Company and CHS (US) Management, LLC, a Delaware limited liability company (the “Aranda Adviser”).

You may apply to become a holder of Units of the Company (a “Unitholder”) by taking the following steps:

 

1.

Read the subscription agreement of the Company (the “Subscription Agreement”) (Part 1).

 

2.

Fill in the name of the investor and the amount of the Capital Commitment (as defined herein) on the first page of the Subscription Agreement (Part 1).

 

3.

Complete the Investor Questionnaire (Part 2). For investors that are nominee, custodial or other similar accounts, Part 2 of this Subscription Booklet must be completed on behalf of the underlying investor(s) and such nominee / custodial or other similar account in its capacity as nominee, custodian or other similar party for the underlying investor(s). If responses to questions in Part 2 differ between the nominee / custodial or other similar account in its capacity as nominee, custodian or other similar party and the underlying investor(s), please contact CHS (US) Management LP, whose contact information is set forth below.

 

4.

Complete the Investor Data Sheet (the investor must provide all information regarding its identity, including its name and tax identification number or social security number and all contact information) (Part 3).

 

5.

Complete, sign and date the signature page (which evidences your agreement to be bound by the terms and conditions of both the Subscription Agreement and the LLC Agreement) (Part 4).

 

6.

Read the Privacy Notice of the Company and related parties (Part 5).

 

7.

If a “U.S. person” for U.S. federal income tax purposes, complete, sign and date Internal Revenue Service (“IRS”) Form W-9 “Request for Taxpayer Identification Number and Certification” in accordance with the instructions accompanying such form (Part 6(a)). If a “non-U.S. person” for U.S. federal income tax purposes, complete, sign and date the applicable IRS Forms W-8 (W-8BEN, W-8BEN-E, W-8IMY, W-8ECI or W-8EXP) in accordance with the instructions accompanying such form(s) (Part 6(b)).

 

8.

Complete, sign and date the Anti-Money Laundering Questionnaire and provide the requested back-up documentation (Part 7).

 

9.

If applicable, complete, sign and date the Certification of Intermediaries (included in Part 7).

 

10.

Please email the entire Subscription Booklet (including any unmarked pages) and appropriate back-up documentation to:

[Harmonic Fund Services]

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

 

11.

If your subscription is accepted by the Company (in whole or in part), then a fully executed copy of the Subscription Booklet shall be returned to you.

 

12.

Questions regarding the subscription documents should be directed to:

[Harmonic Fund Services]

Emails: [•]

With a copy to:

[•]

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

PART 1

APS BDC, LLC

 

Full Name of Investor
Capital Commitment

APS BDC, LLC

c/o CHS (US) Management, LLC

550 Madison Avenue, 34th Floor

New York, New York 10022

Ladies and Gentlemen:

This subscription agreement (together with the Investor Questionnaire and the Investor Data Sheet, collectively referred to herein as this “Subscription Agreement”) is made by and among APS BDC, LLC, a Delaware limited liability company (the “Company”), CHS (US) Management, LLC, a Delaware limited liability company and an adviser to the Company (the “Aranda Adviser”), OHA Private Credit Advisors II, L.P., a Delaware limited partnership and an adviser to the Company (the “OHA Adviser”), and the undersigned individual or entity (the “Investor”), who is hereby applying to become a holder of units of limited liability company interests (“Units”) of the Company (a “Unitholder”), on the terms and conditions set forth in (a) this Subscription Agreement, (b) the limited liability company agreement of the Company (as amended, modified and/or restated from time to time, the “LLC Agreement”), (c) the Investment Advisory Agreement between the Company and the Aranda Adviser (as amended, modified and/or restated from time to time, the “Aranda Investment Advisory Agreement”), (d) the Investment Advisory Agreement between the Company and the OHA Adviser (as amended, modified and/or restated from time to time, the “OHA Investment Advisory Agreement” and together with the Aranda Investment Advisory Agreement, the “Investment Advisory Agreements”), and (e) the Company’s Form 10 Registration Statement filed with the U.S. Securities and Exchange Commission (“SEC”), as may be amended from time to time (the “Form 10”, and together with this Subscription Agreement, the LLC Agreement and the Investment Advisory Agreements, the “Company Documents”), copies of which have been furnished to the Investor (including by way of furnishing such documents to an electronic data room or internet website to which the Investor has been granted access). Capitalized terms used but not defined in this Subscription Agreement have the meanings set forth in the LLC Agreement.

Except as otherwise indicated, all references herein to “$” or “dollars” are to U.S. dollars.

I. SUBSCRIPTION AGREEMENT

The Investor hereby irrevocably subscribes for Units with a capital commitment (the “Capital Commitment”) in the amount set forth above and on the Investor’s signature page hereof (subject to reduction as provided below). The Units shall not be deemed to be sold or issued to, or owned by, the Investor (and the Investor’s subscription for the Units, in whole or in part, shall not be deemed finally accepted) until the Investor is admitted as a Unitholder to the Company. The Investor acknowledges and agrees that the Aranda Adviser reserves the right, in its discretion, to admit the Investor as a Unitholder to the Company on the date of any closing of the Company (each such date of admission, a “Closing Date”) and that the Aranda Adviser reserves the right, in its discretion, to reject this subscription for the Units, in whole or in part, at any time prior to any Closing Date, notwithstanding execution by or on behalf of the Investor of the signature page hereof or notice from the Aranda Adviser of its conditional acceptance of the Investor’s subscription for the Units. If this subscription is rejected in full, or in the event the Closing Date applicable to the Investor does not occur (in which event this subscription shall be deemed to be rejected), this Subscription Agreement shall thereafter have no force or effect; provided that, notwithstanding the foregoing, if a portion of the Investor’s Capital Commitment is not accepted as of a Closing Date for any purpose set forth in the LLC Agreement or as otherwise agreed with the Investor (while the remaining portion of the Investor’s Capital Commitment is accepted as of such Closing Date), then such portion of such Capital Commitment that was not accepted shall remain part of the Investor’s irrevocable subscription pursuant to this Subscription Agreement (which shall remain in full force and effect) until the date on which the Aranda Adviser notifies the Investor in writing that such portion of its Capital Commitment that was not accepted will not be accepted by the Company as of any subsequent Closing Date. During

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

such period, the Aranda Adviser may, in its discretion, as of one or more subsequent Closing Dates and with prior written notice to the Investor, accept all or any part of the portion of the Investor’s Capital Commitment that previously was not accepted, in each case, in a manner consistent with the LLC Agreement. The accepted amount of the Investor’s Capital Commitment with respect to a Closing Date shall be the amount set forth on the Aranda Adviser’s signature page hereto applicable to such Closing Date. As of any applicable subsequent Closing Date that the Aranda Adviser accepts all or any part of the portion of the Investor’s Capital Commitment that previously was not accepted, the total accepted amount of the Investor’s Capital Commitment shall be the amount set forth on the Aranda Adviser’s most recent additional signature page hereto. The Investor agrees to be bound by the terms of the LLC Agreement and specifically confirms and agrees to the appointment of the Aranda Adviser as the Investor’s attorney-in-fact under the provisions of and in accordance with the terms of the LLC Agreement.

II. REPRESENTATIONS AND WARRANTIES

A. Representations and Warranties of the Investor. The Investor hereby represents and warrants to, and agrees with, the Aranda Adviser, the OHA Adviser, and the Company that the following statements are true as of the date hereof and shall be true as of each Closing Date applicable to the Investor and as of each date on which the Investor makes any capital contributions or additional Capital Commitments to the Company:

1. The Investor’s Units are being acquired by the Investor, either for the Investor’s own account or as an agent, a representative, an intermediary, or a nominee for another person, solely for investment and not with a view to resale, distribution, assignment or transfer of all or a portion thereof.

2.

a. The Investor acknowledges that: (i) the offering and sale of the Units have not been and will not be, registered under the Securities Act of 1933, as amended (the “Securities Act”), and are being made in reliance upon U.S. federal and state exemptions for transactions not involving a public offering.

b. The Investor represents and warrants that: (i) it is an “accredited investor” (as defined in Regulation D promulgated under the Securities Act); (ii) it is a “qualified purchaser” (as defined in Section 2(a)(51)(A) of the Investment Company Act of 1940, as amended (the “1940 Act”), and the regulations issued thereunder); and (iii) the Investor will not engage in hedging transactions involving the Units unless in compliance with the Securities Act and other applicable U.S. and/or non-U.S. securities laws. The Investor agrees that it will not take any action that could have an adverse effect on the availability of the exemption from registration provided by Regulation D promulgated under the Securities Act with respect to the offer and sale of the Units.

c. The information relating to the Investor set forth in the Investor Questionnaire, the Investor Data Sheet and the Anti-Money Laundering Questionnaire attached hereto and forming a part of this Subscription Agreement is complete and accurate.

3. In connection with the purchase of the Units, the Investor represents and warrants that: (a) it meets all suitability standards imposed on it by applicable law; and (b) the Investor is not structured or operated for the purpose or as a means of circumventing the provisions of the 1940 Act.

4. The Investor has been furnished with, and has carefully read, the Company Documents, and has been given the opportunity to (a) ask questions of, and receive answers from, the Aranda Adviser, the OHA Adviser, or any of their respective affiliates concerning the terms and conditions of the offering of the Units and other matters pertaining to an investment in the Company and (b) obtain any additional information necessary to evaluate the merits and risks of an investment in the Company that the Aranda Adviser and the OHA Adviser can acquire without unreasonable effort or expense. In considering a subscription for the Units, the Investor has evaluated for itself the risks and merits of such investment and is able to bear the economic risk of such investment, including a complete loss of capital, and in addition has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Company, the Aranda Adviser, the OHA Adviser or any director, officer, employee, agent or affiliate of such persons, other than as set forth in the Company Documents. The Investor has carefully considered and has, to the extent it believes necessary, discussed with legal, tax, accounting and financial advisors the suitability of an investment in the Company in light of its particular tax and financial situation, and has determined that the Units being subscribed for hereunder are a suitable investment for the Investor.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

5. The Investor (either alone or together with any advisors retained by the Investor in connection with evaluating the merits and risks of prospective investments) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of purchasing the Units, including the risks set forth in the Form 10, and is able to bear the economic risk of such investment, including a complete loss of capital.

6. The Investor, if it is a corporation, limited liability company, trust, partnership or other entity, is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and the execution, delivery and performance by the Investor of this Subscription Agreement and the execution of the LLC Agreement on behalf of the Investor and the performance of the Investor’s duties and obligations thereunder are within the Investor’s corporate or other powers, as applicable, have been duly authorized by all necessary corporate or other action on its behalf, require no action by or in respect of, or filing with, any governmental body, agency or official (except as disclosed in writing to the Aranda Adviser and the OHA Adviser), and do not and shall not result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any provision of any charter, bylaws, trust agreement, indenture, mortgage, deed of trust, credit, note or evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, regulation, law, judgment, order, writ, injunction or decree to which the Investor is a party or by which the Investor or any of its properties is bound. This Subscription Agreement and the LLC Agreement have been duly executed and delivered by, or on behalf of, the Investor and constitute valid and binding agreements of the Investor, enforceable against the Investor in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

7. The Investor is not a defined contribution plan (such as a plan qualified under Section 401(a) of the U.S. Internal Revenue Code of 1986, as amended from time to time (the “Code”)) or a partnership or other investment vehicle (a) in which its partners or participants have or shall have any discretion to determine whether or how much of the Investor’s assets are invested in any investment made or to be made by the Investor or (b) that is otherwise an entity managed to facilitate the individual decisions of its beneficial owners to invest in the Company.

8. The Investor was offered the Units in the state or other jurisdiction identified in Part 1 of the Investor Data Sheet under the heading “Principal Place of Business or Address of Investor” and the Investor intends that the securities laws of such state or other jurisdiction shall govern the Investor’s subscription for the Units.

9. The Investor is not subscribing for the Units as a result of or subsequent to (a) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over radio, television or the Internet or (b) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.

10. Any capital contributions made by the Investor to the Company shall not directly or indirectly be derived from activities that may contravene applicable laws and regulations, including anti-money laundering, counter-terrorist and prevention of proliferation financing laws and regulations. The Investor is in compliance in all material respects with anti-money laundering, counter-terrorist financing and prevention of proliferation financing laws and regulations applicable to it.

11. The rules and regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), the U.K. His Majesty’s Treasury (“HMT”), the United Nations Security Council, the Ministry of Finance Japan, and the European Union prohibit, among other things, the engagement in transactions with, and the provision of services to, certain countries, territories, entities and individuals (collectively, the “Sanctions Lists” and, where applicable to countries and territories, the “Sanctioned Countries”). The Sanctions List(s) are publicly available. In addition, the programs administered by OFAC (“OFAC Programs”) prohibit dealing with individuals or entities in certain countries regardless of whether such individuals or entities appear on the OFAC lists. The Investor represents and warrants that, to the best of its knowledge (after due inquiry), none of: (a) the Investor; (b) any person controlling or controlled by the Investor; (c) if the Investor is a privately held entity, any person having a beneficial interest in the

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

Investor; (d) if the Investor (and its beneficial owners) is not the beneficial owner of all of the Units, any person having a beneficial interest in the Units; or (e) any person for whom the Investor is acting as agent or nominee in connection with this investment in the Units is a country, territory, individual or entity named on any Sanctions List, or is a person or entity located, organized or resident in any Sanctioned Country or otherwise prohibited under the OFAC Programs.

Please be advised that the Company may not accept the Investor’s subscription for the Units if it cannot make the representations set forth in the preceding paragraph. In addition, if the Investor can no longer make the representations set forth in the preceding paragraph, the Company, the administrator to the Company, the Aranda Adviser, or the OHA Adviser may require the withdrawal of the Investor or take such other action as may be required under applicable law or permitted hereunder including, without limitation, those set forth in Section III.9 below.

12. The Investor represents and warrants that (A) it has conducted due diligence and based on such due diligence reasonably believes that none of: (a) the Investor or any of the directors or senior individuals responsible for the Investor’s operations; (b) any person having a beneficial interest in the Investor; (c) if the Investor (and its beneficial owners) is not the beneficial owner of all of the Units, any person having a beneficial interest in the Units; or (d) any person for whom the Investor is acting as agent or nominee in connection with this investment in the Units is, or has in the last 12 months been, a senior political figure¹ or any immediate family member² or close associate³ of a current senior political figure, or a politically exposed person⁴ or any family member⁵ or close associate⁶ of a politically exposed person; and (B) if the representations in sub-paragraphs (A) (a) to (d) above cannot be made by the Investor, the Investor has notified the Aranda Adviser and the OHA Adviser of the specific relevant political connections in writing, with a reference to this paragraph.

13. The Investor (or any beneficial owner of the Investor) is not located, organized, or operating in a country or territory, and is not an entity, that (a) has been designated as non-cooperative with international anti-money laundering and counter-terrorist financing principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force, of which each of the United States and the United Kingdom is a member, (b) has been designated by the European Union as a high-risk third country for the purposes of the pan-European Money Laundering Directive (as amended) or has been designated by HMT as a high risk third country for the purposes of the UK Money Laundering Regulations (as amended). If required by the Investor, the relevant European Union and HMT high risk third country lists can be obtained from the Aranda Adviser or the OHA Adviser upon request, (c) is the subject of an advisory issued by the Financial Crimes Enforcement Network of the U.S. Treasury Department or (d) has been designated by the Secretary of the Treasury under Section 311 of the USA PATRIOT Act as warranting special measures due to money laundering concerns. If the representations in sub-paragraphs (a) to (d) above cannot be made by the Investor, the Investor has notified the Aranda Adviser and the OHA Adviser in writing

1

A “senior political figure” is defined as a person who is or has been entrusted with a prominent public function in the executive (including regional governments in federalized systems and devolved administrations), legislative, administrative, foreign service (including ambassadors and charge d’affaires), military (including high-ranking officers in the armed forces) or judicial branches of a government (whether elected or not), a senior official of a major political party (being a political party that has some representation in a national or supranational parliament or similar legislative body), a senior executive of a government-owned corporation, members of courts of auditors or the board of a central bank. A “senior political figure” also includes the directors, deputy directors and members of the board or equivalent of international public organizations. In addition, a “senior political figure” includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior political figure.

2	“Immediate family” of a senior political figure typically includes the political figure’s parents, siblings, spouse (or person considered to be equivalent to a spouse), children (and their spouses or persons considered to be equivalent to a spouse) and in-laws.

3

A “close associate” of a senior political figure is a person who is widely and publicly known to maintain an unusually close relationship with the senior political figure, and includes a person who is in a position to conduct substantial financial transactions on behalf of the senior political figure. A “close associate” also includes persons who are known to have joint beneficial ownership of legal entities or legal arrangements, or any other close business relations, with a senior political figure and natural persons who have sole beneficial ownership of a legal entity or legal arrangement that is known to have been set up for the de facto benefit of a senior political figure.

4

A “politically exposed person” is defined under Cayman Islands law as (a) a person who is or has been entrusted with prominent public functions by a foreign country, for example a Head of State or of government, senior politician, senior government, judicial or military official, senior executive of a state owned corporation, and important political party official; (b) a person who is or has been entrusted domestically with prominent public functions, for example a Head of State or of government, senior politician, senior government, judicial or military official, senior executives of a state owned corporation and important political party official; and (c) a person who is or has been entrusted with a prominent function by an international organization like a member of senior management, such as a director, a deputy director and a member of the board or equivalent functions.

5	A “family member” of a politically exposed person includes the spouse, parent, sibling or child of a politically exposed person.

6

A “close associate” of a politically exposed person means any natural person who is known to hold the ownership or control of a legal instrument or person jointly with a politically exposed person, or who maintains some other kind of close business or personal relationship with a politically exposed person, or who holds the ownership or control of a legal instrument or person which is known to have been established to the benefit of a politically exposed person.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

of the specific relevant facts with a reference to this paragraph. If the Investor is a non-U.S. banking institution (a “Non-U.S. Bank”) or if the Investor receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Non-U.S. Bank, the Investor represents and warrants to the Company that: (i) the Non-U.S. Bank has a fixed address, other than solely an electronic address, in a country in which the Non-U.S. Bank is authorized to conduct banking activities; (ii) the Non-U.S. Bank employs one or more individuals on a full-time basis; (iii) the Non-U.S. Bank maintains operating records related to its banking activities; (iv) the Non-U.S. Bank is subject to inspection by the banking authority that licensed the Non-U.S. Bank to conduct banking activities; and (v) the Non-U.S. Bank does not provide banking services to any other Non-U.S. Bank that does not have a physical presence in any country and that is not a regulated affiliate.

14. In connection with the subscription for Units, neither the Investor nor any representative or agent of the Investor, any person holding an interest in the Investor, or any other person acting for or on the Investor’s behalf, has offered, paid, promised to pay, authorized the payment of, been offered, been promised, or received any money or anything of value, whether directly or indirectly, to or from any person, including any Government Official,⁷ political party, candidate for public office, or employee of a public international organization, nor provided or promised anything of value to any other person while knowing that all or a portion of that thing of value would be or was reasonably likely to be offered, given, or promised, directly or indirectly, to or from any person for the purpose of improperly influencing any official act or decision, including any act or decision of a Government Official, political party, candidate for public office, or employee of a public international organization, to obtain or retain business, or to secure an improper advantage. In addition, neither the Investor nor any representative or agent of the Investor, any person holding an interest in the Investor, or any other person acting for or on the Investor’s behalf in connection with the Investor’s subscription for Units has violated any applicable anti-corruption laws, including, without limitation, the U.S. Foreign Corrupt Practices Act and the Cayman Islands Anti-Corruption Act, has violated any applicable anti-money laundering, counter-terrorist financing or prevention of proliferation financing laws or regulations or otherwise has made, offered, sought, provided or received any bribe, payoff, influence payment, kickback, or other unlawful payment or improper advantage.

15. The Investor represents that either: (a) it is subscribing for the Units for its own account, risk and beneficial interest, or (b) if the Investor is an intermediary investing in the Company in its own name on behalf of other investors, which may include, without limitation, an introducing firm, an asset aggregator, a nominee, a trustee, an agent, a representative, a fund-of-funds, a swap counterparty or any other pooled or intermediary investment vehicle (each, an “Intermediary”), the Investor represents that it is subscribing for the Units as a record owner in its capacity as an Intermediary on behalf of one or more investors (“Underlying Investors”), and agrees that the representations, warranties and covenants made in this Subscription Agreement are made by it on behalf of itself and the Underlying Investors. If the Investor is an Intermediary, the Investor must complete the Certification of Intermediaries (included as Appendix B to Part 7 of this Subscription Booklet). The Investor further represents and warrants that (x) it has obtained and recorded evidence of the identity of the Underlying Investors and their source of funds and it will make available such evidence, if requested to do so by the Company and (y) it has all requisite power and authority from the Underlying Investors to execute and perform the obligations under this Subscription Agreement. The Investor agrees that it shall indemnify and hold harmless any director, officer, employee, agent or affiliate of the Company, the Aranda Adviser or the OHA Adviser (the “Protected Persons”) for any and all liabilities resulting from the Investor’s or the Underlying Investor’s misrepresentations or misstatements contained herein, or the assertion of the Investor’s lack of proper authorization from an Underlying Investor to enter into this Subscription Agreement and/or to perform the obligations hereunder.

16. The Investor represents that, with respect to the Investor and any other person who, through the Investor’s ownership, would be deemed to beneficially own (as defined under Rule 13d-3 promulgated under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”)) 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power (the Investor and any such beneficial owner, each a “Covered Person”), none of the events or conditions described in Rule 506(d) under Regulation D promulgated under the Securities Act (each, a “Rule 506(d) Event”) has occurred or is true as of the date hereof. The Investor shall promptly provide written notice to the Company in the event that, after the date hereof, with respect to a Covered Person, a Rule 506(d) Event does occur or becomes true or the Investor becomes aware of a Rule 506(d) Event that has occurred or

7	“Government Official” means any officer or employee of a department, agency, or instrumentality of any government, whether national, regional, provincial, state, municipal, or local, including state-owned or state-controlled entities and enterprises.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

has become true. The Investor further agrees that upon notification by the Company, the Investor and, if applicable, its beneficial owners shall promptly complete and return to the Company such information or forms as the Aranda Adviser and OHA Adviser reasonably request so that the Company may satisfy any conditions or requirements of Rule 506(d) of Regulation D promulgated under the Securities Act that the Aranda Adviser and OHA Adviser determine to be applicable to the Company.

17. The Investor agrees that, upon the request of the Company, it will immediately provide such information as the Company (or the Administrator and/or any of their respective affiliates) requires to satisfy applicable anti-money laundering, counter-terrorist financing, prevention of proliferation financing and sanctions laws and regulations, including, without limitation, the Investor’s anti-money laundering, counter-terrorist financing, prevention of proliferation financing and sanctions-compliance policies and procedures, background documentation relating to its directors, trustees, settlors and beneficial owners, and audited financial statements, if any.

18. This Subscription Agreement is not transferable or assignable by the Investor.

19. Unless the Investor indicates otherwise in the Investor Data Sheet, neither the Investor nor any affiliate of the Investor is (a) a “bank holding company” as that term is defined in Section 2(a) of the BHC Act (as defined below) or otherwise subject to the regulation and supervision pursuant to the BHC Act, or (b) a “banking entity” as defined in subsection 1851(h)(1) of Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Volcker Rule”), 12 U.S.C. § 1851. For purposes of this representation and warranty, “BHC Act” shall mean the U.S. Bank Holding Company Act of 1956, as amended, or any successor statute thereto, and shall include the rules, regulations and interpretations issued by the U.S. Federal Reserve Board. For the avoidance of doubt, a Non-U.S. Bank organized and operating solely outside of the U.S., with no insured depository institution subsidiary or affiliate or commercial lending subsidiary, branch or agency located in the U.S., is not subject to the Volcker Rule.

20. The Investor shall not take any action to present a petition or application or commence any case, proceeding, proposal or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement in the nature of insolvency proceedings, adjustment, winding up, liquidation, dissolution, composition or analogous relief with respect to the Company or the debts of the Company.

21. The Investor represents that no beneficial owner of the Investor holds their interest in the Investor in the form of bearer shares, bearer share warrants or equivalent instruments.

22. The Investor agrees that the representations, warranties and background information (including anti-money laundering, counter-terrorist financing, prevention of proliferation financing and sanctions-compliance information) made or provided herein or pursuant to this Subscription Agreement shall be deemed to be reaffirmed by the Investor at any time the Investor purchases or otherwise acquires additional Units (or makes a capital contribution to the Company) and such purchase or acquisition (or capital contribution) shall be evidence of such reaffirmation, and if any of such representations or warranties made, or background information provided, ceases to be true, the Investor shall promptly notify the Administrator of the facts pertaining to such changed circumstances.

23. If the Investor is a “charitable remainder trust” within the meaning of Section 664 of the Code, the Investor has advised the Aranda Adviser and the OHA Adviser in writing of such fact on or prior to the date hereof and the Investor acknowledges that it understands the risks, including specifically the tax risks, if any, associated with its investment in the Company.

B. Representations and Warranties of the Company and the Aranda Adviser. The Company and the Aranda Adviser hereby represent and warrant to the Investor that:

1. The Company is duly organized and validly existing as a limited liability company under the laws of the State of Delaware and has all requisite power and authority to carry on its business as now conducted and as proposed to be conducted as described in the Company Documents. The Aranda Adviser is duly organized and validly existing as a limited liability company under the laws of the State of Delaware and has all requisite power and authority to act as an investment adviser of the Company and to carry out the terms of this Subscription Agreement and the LLC Agreement.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

2. The execution and delivery of this Subscription Agreement has been authorized by all necessary action on behalf of the Company, and does not and shall not result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any provision of any limited liability company agreement, partnership agreement, charter, bylaws, trust agreement, indenture, mortgage, deed of trust, credit, note or evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, regulation, law, order, writ, injunction, order or decree to which the Company is subject, and this Subscription Agreement is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

3. Neither the Company nor anyone acting on its behalf has taken or shall take any action that would subject the issuance and sale of the Investor’s Units to the registration requirements of the Securities Act or any state securities laws.

4. Assuming the accuracy of the representations and warranties of the Unitholders, the Company is not required to register as an “investment company” under the 1940 Act.

C. Representations and Warranties of the OHA Adviser. The OHA Adviser hereby represents and warrants to the Investor that:

1. The OHA Adviser is duly organized and validly existing as a limited partnership under the laws of the State of Delaware and has all requisite power and authority to act as an investment adviser to the Company and to carry out the terms of this Subscription Agreement and the LLC Agreement.

2. The OHA Adviser, acting on behalf of the Company, has not taken nor shall it take any action that would subject the issuance and sale of the Investor’s Units to the registration requirements of the Securities Act or any state securities laws.

III. UNDERSTANDINGS

The Investor hereby understands, acknowledges and agrees with the Company, the Aranda Adviser and the OHA Adviser as follows:

1. The Investor agrees to provide promptly such information and execute and deliver such documents as may be necessary to comply with any and all laws and regulations to which the Company or any of its affiliates may be subject, including information relevant to a determination of whether the Investor: (a) is not a U.S. person (as defined in Regulation S promulgated under the Securities Act); and (b) is a “Non-United States person” (as defined in Rule 4.7 of the Commodity Exchange Act of 1936, as amended).

2. The Units have not been approved, disapproved or recommended by the SEC or by any other U.S. federal, state or non-U.S. securities commission or regulatory authority, and none of the foregoing authorities has confirmed the accuracy or determined the adequacy of the Company Documents or the offering of the Investor’s Units. Any representation to the contrary is a criminal offense.

3. The Investor’s Units are a speculative investment and involves a high degree of risk. There is no public market for the Investor’s Units, and no such public or other market is expected to develop. The transferability of the Investor’s Units is substantially restricted both by the terms of the LLC Agreement and applicable law. The Investor has no right to require its Units or other interests in the Company to be registered under the Securities Act. The Investor shall not be able to receive the benefit of the provisions of Rule 144 or 144A adopted by the SEC under the Securities Act with respect to the resale of its Units. Accordingly, it may not be possible for the Investor to liquidate its investment in the Company.

4. In making an investment decision, the Investor must rely on its own examination of the Company Documents and the terms of the offering, including the merits and risks involved.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

5. The Investor acknowledges that pursuant to the LLC Agreement, each Protected Person is entitled to be indemnified out of the assets of the Company against any and all liabilities, except with respect to any Liability for which such Protected Person is not entitled to indemnification as expressly set forth in the LLC Agreement.

6. If any provision of this Subscription Agreement is invalid or unenforceable under any applicable law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such applicable law. Any provision hereof which may be held invalid or unenforceable under any applicable law shall not affect the validity or enforceability of any other provisions hereof, and to this extent the provisions hereof, shall be severable.

7. The Investor understands and agrees that in order to ensure compliance under applicable anti-money laundering, counter-terrorist financing, prevention of proliferation financing and sanctions laws and regulations, OHA Private Credit Advisors II, L.P., a Delaware limited partnership (the “Administrator”) or its designee may require a detailed verification of the identity, beneficial ownership and source of funds of a person acquiring the Units and the source of its investment funds, and the Administrator reserves the right to request such information as is necessary to verify the foregoing. In the event of delay or failure by the Investor to produce any information required for verification or other anti-money laundering, counter-terrorist financing, prevention of proliferation financing or sanctions-compliance purposes, the Administrator and/or its affiliates may refuse to accept the Investor’s subscription until proper information has been provided and, if the Investor’s subscription has already been accepted, may refuse to pay any monies which may otherwise be payable by the Company to the Investor until proper information has been provided.

8. The Investor covenants and agrees that it shall provide the Administrator, at any time during the term of the Company, with such information as the Administrator and/or its respective affiliates determine to be necessary or appropriate to (a) verify compliance with the anti-money laundering, counter-terrorist financing, prevention of proliferation financing and sanctions laws and regulations of any applicable jurisdiction or (b) respond to requests for information concerning the identity, beneficial ownership and source of funds of the Investor from any governmental authority, self-regulatory organization or financial institution in connection with the Company’s, the Administrator’s and their respective affiliates’ anti-money laundering, counter-terrorist financing, prevention of proliferation financing and sanctions compliance procedures. In the event of delay or failure by the Investor to produce any such information, the Administrator may refuse to pay any monies which may otherwise be payable by the Company to the Investor until proper information has been provided.

9. The Investor understands and agrees that if any of the representations and warranties set forth in Section II.(A)[(15), (16), (17), (18) or (19)] ceases to be true or if the Company no longer reasonably believes that it has satisfactory evidence as to their truth, notwithstanding any other agreement to the contrary, the Company may be obligated to freeze the Investor’s investment, which may include prohibiting capital contributions and/or distributions, segregating the assets constituting the Investor’s investment in accordance with applicable regulations and/or the immediate involuntary withdrawal of the Investor’s investment in the Company, and the Company may also be required to, or consider it advisable to, report any prohibited transaction and remedial action and to disclose the Investor’s identity to OFAC or other applicable governmental or regulatory authorities. If the Administrator is required (or considers it advisable) to take any of the foregoing actions, the Investor understands and agrees that it shall have no claim against any Protected Person for any form of damages as a result of any of the foregoing actions.

10. The Investor acknowledges, agrees and understands that, pursuant to the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Administrator may restrict the participation of certain Unitholders that are proscribed from participating in the purchase of “new issues,” as such term is defined by the rules of FINRA, due to the status of such Unitholders as “restricted persons” under FINRA’s “new issues” rules and may request additional information be provided from the Investor in this regard in order to make such determination.

11. The Investor acknowledges and agrees that, if the Investor is a “disregarded entity” within the meaning of U.S. Treasury Regulation Section 301.7701-2(c) or a grantor trust, then the person treated for U.S. federal income tax purposes as the owner of its Units is subject to the transfer restrictions with respect to any indirect transfer of its Units, as set forth in the Form 10, the LLC Agreement and this Subscription Agreement, as if it had owned the Investor’s Units directly. For these purposes, without limitation to the foregoing, (a) a transfer by the person treated

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

for U.S. federal income tax purposes as the owner of the Investor’s Units and (b) a change in the U.S. federal tax status of any person, which is treated as a transfer for U.S. federal income tax purposes of the assets of the Investor, are transfers of the Investor’s Units that are subject to the restrictions on transfers of the Investor’s Units and are prohibited, except as set forth in the LLC Agreement and this Subscription Agreement.

IV. GRANT OF POWER OF ATTORNEY

1. The Investor hereby constitutes and appoints the Aranda Adviser irrevocably as its true and lawful agent and attorney-in-fact, in its name, place and stead (a) to execute and deliver the LLC Agreement on the Investor’s behalf on the Closing Date applicable to the Investor, and (b) to make, execute, sign and file any statement in respect of an amendment or termination of the Company’s registered particulars set out therein as required by law, and all such other instruments, documents and certificates as may from time to time be required by the laws of the United States of America, the State of Delaware, the State of New York or any other state or other relevant jurisdiction in which the Company shall determine to conduct activities or to do business, or any political subdivision or agency thereof, to effectuate, implement, continue or terminate the valid existence of the Company.

2. The foregoing grant of authority is a special power of attorney coupled with an interest in favor of the Aranda Adviser and as such shall (a) survive the dissolution, termination or bankruptcy of the Investor or the transfer of all or any portion of the Investor’s Units and (b) extend to the Investor’s successors, assigns and legal representatives.

V. INDEMNIFICATION

1. Except to the extent prohibited by applicable law, the Investor shall indemnify and hold harmless the Protected Persons from and against any and all liabilities based upon, resulting from or otherwise in respect of (a) any actual or alleged misrepresentation or misstatement of facts, or omission to represent or state facts, by or on behalf of the Investor concerning the Investor, the Investor’s suitability or authority to invest or the Investor’s financial position in connection with the offering and sale of the Investor’s Units, including, without limitation, any such misrepresentation, misstatement or omission contained in or accompanying the Investor Questionnaire, the Investor Data Sheet or the Anti-Money Laundering Questionnaire submitted by or on behalf of the Investor and forming a part of this Subscription Agreement, (b) any action, suit or proceeding instituted by or on behalf of the Investor which is not resolved by final judgment against such Protected Persons or (c) the breach of any of the Investor’s representations, warranties, covenants or agreements set forth in this Subscription Agreement. The Investor shall promptly reimburse (and/or advance to) each Protected Person attorneys’ fees and other fees, costs and expenses (as incurred) in connection with investigating, preparing to defend or defending any claim, lawsuit, action or other proceeding relating to any liabilities for which such Protected Person may be indemnified pursuant to this Section V. The Investor’s obligation, if any, to indemnify, reimburse and/or advance expenses to any Protected Person pursuant to this Section V is intended to be primary to any such obligation of the Company and any applicable insurance policy. Notwithstanding anything to the contrary in this Subscription Agreement, the Company may, in the discretion of the Aranda Adviser, pay any obligations or liabilities arising out of this Section V as a secondary indemnitor at any time prior to the Investor making any payments the Investor owes; it being understood that any such payment by the Company shall not constitute a waiver of any right of contribution or subrogation to which the Company is entitled (including against any primary indemnitor) or relieve any other indemnitor, including the Investor, from any indemnity obligations.

2. The reimbursement and indemnity obligations of the Investor under this Section V shall survive the Closing Date applicable to the Investor and shall be in addition to any liability that the Investor may otherwise have (including, without limitation, liabilities under the Company Documents) and shall be binding upon and inure to the benefit of any successors, assigns, heirs or legal representatives of any Protected Persons.

VI. CONFIDENTIALITY

1. The Investor acknowledges and agrees that it has read and agrees to the confidentiality provisions in the LLC Agreement, that such provision applies to any and all Confidential Information and that the Company, the Aranda Adviser, the OHA Adviser, and/or any of their respective representatives may disclose Confidential Information as set forth in the LLC Agreement. For the purposes of this paragraph, “Confidential Information” shall mean any

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

information related to the activities and assets of the Company, the Aranda Adviser, the OHA Adviser and their respective affiliates or any issuer that the Investor may acquire from the Company, the Aranda Adviser, the OHA Adviser or their respective affiliates, any issuer or any other Unitholder, other than information that: (a) is already available through publicly available sources of information (other than as a result of disclosure by the Investor); (b) was available to the Investor on a non-confidential basis prior to its disclosure to the Investor by the Company; or (c) becomes available to the Investor on a non-confidential basis from a third party; provided, however, that such third party is not known by the Investor (or could not have been known after reasonable inquiry by the Investor) to be bound by this Section VI or another applicable confidentiality agreement. Such Confidential Information may include, without limitation, information that pertains or relates to (i) the offering of Units (including the Company Documents), (ii) the business and affairs of any other Unitholder, (iii) any investments or proposed investments or (iv) any other Company matters.

2. If the Investor or any representative of the Investor is required to disclose any of the Confidential Information, the Investor shall provide the Company with prompt prior written notice so that the Company or any issuer may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Subscription Agreement, and the Investor shall cooperate with the Company, the Aranda Adviser, the OHA Adviser or any issuer in any effort any such person undertakes to obtain a protective order or other remedy. If such protective order or other remedy is not obtained, or the Company waives compliance with the provisions of this Section VI, the Investor and its representatives shall furnish only that portion of the Confidential Information that is required and shall use its best efforts to obtain reliable assurance that the Confidential Information shall be accorded confidential treatment.

3. The Aranda Adviser and/or the OHA Adviser may agree to waive, in its discretion, any or all of the provisions of this Section VI with respect to the Investor.

4. The Investor acknowledges and agrees that money damages would not be a sufficient remedy for a breach of this Section VI and that the Company, the Aranda Adviser, the OHA Adviser and/or their respective affiliates shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, in addition to all other remedies available at law or in equity. No failure or delay by the Company, the Aranda Adviser, the OHA Adviser and/or their respective affiliates in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.

5. Without limitation to the foregoing and the LLC Agreement, the Investor acknowledges and agrees that (a) the information provided in this Subscription Agreement may be disclosed by the Company, the Aranda Adviser, the OHA Adviser and/or any of their respective representatives to auditors, counsel, regulators and/or other third parties that provide services to the Company, the Aranda Adviser, the OHA Adviser and/or any of their respective representatives and that such disclosure may require the transmission of confidential information relating to the Investor across international borders and (b) the Company, the Aranda Adviser, the OHA Adviser and/or any of their respective representatives may also disclose the identity of the Investor to the extent determined to advance or protect the interests of the Company (including to facilitate an investment); provided that notwithstanding the foregoing, any disclosure of Personal Information (as defined in the Privacy Notice, set forth in Part 5 of this Subscription Booklet) shall be permitted only pursuant to and subject to the Privacy Notice.

VII. ADDITIONAL INFORMATION AND SUBSEQUENT CHANGES

IN THE FOREGOING REPRESENTATIONS

1. The Company may request from the Investor such additional information as it may deem necessary to evaluate the eligibility of the Investor to acquire the Units, and may request from time to time such information as the Company may deem necessary to determine the eligibility of the Investor to hold the Units or to enable the Company to determine its compliance with applicable regulatory requirements or tax status, including anti-money laundering, counter-terrorist financing, prevention of proliferation financing and sanctions laws and regulations, and the Investor shall provide such information as may reasonably be requested.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

2. The Investor acknowledges and agrees that it must provide the information and representations, warranties and covenants contained in this Subscription Agreement both at the time of subscription and at all times thereafter until the Investor ceases to be a member. Accordingly, the Investor agrees to notify the Aranda Adviser and the OHA Adviser promptly if there is any change with respect to any of the information or representations, warranties and covenants provided by the Investor in or pursuant to this Subscription Agreement, and to provide the Aranda Adviser and the OHA Adviser with such further information as the Company, the Aranda Adviser, the OHA Adviser or any of their respective affiliates may reasonably require. In addition, the Investor agrees to provide such information and to execute and deliver such documents as the Company, the Aranda Adviser, or the OHA Adviser may deem reasonably necessary to comply with any and all laws and ordinances to which the Company, the Aranda Adviser, or the OHA Adviser is or may be subject.

VIII. MISCELLANEOUS

1. This Subscription Agreement shall be enforced, governed by and construed in all respects in accordance with the internal laws of the State of New York applicable to agreements made and to be wholly performed in such State, without regard to the conflict of laws principles thereof that would apply the laws of another jurisdiction.

2. Any action, proceeding or claim relating in any way to, arising out of or concerning this Subscription Agreement shall be brought and maintained exclusively in the U.S. federal courts located in New York County, and each party irrevocably consents to the jurisdiction of such courts to the broadest extent possible for any such action, proceeding or claim and waives any objection to proceeding there that such party might have on the basis of inconvenient forum, improper venue or otherwise; provided, that, if the U.S. federal courts located in New York County would not have or are found not to have subject matter jurisdiction over any action, proceeding or claim relating in any way to, arising out of or concerning this Subscription Agreement, such action, proceeding or claim shall be brought and maintained only in the courts of the State of Delaware, and each party irrevocably consents to the jurisdiction of such courts to the broadest extent possible for any such action, proceeding or claim and waives any objection to proceeding there that such party might have on the basis of inconvenient forum, improper venue or otherwise. To the extent not prohibited by applicable law that cannot be waived, each party waives, and covenants that such party shall not assert (whether as plaintiff, defendant or otherwise), any right to trial by jury in any forum in respect of any judicial action or proceeding arising out of this Subscription Agreement or the subject matter hereof or in any way connected with the dealings of any party hereto or any of its affiliates in connection with any representation, warranty, covenant or agreement contained in this Subscription Agreement or any transaction contemplated by this Subscription Agreement, in each case, whether now existing or hereafter arising and whether in contract, tort or otherwise. Any party hereto may file an original counterpart or a copy of this Section VIII.2 with any court in any jurisdiction as written evidence of the consent of the parties to the waiver of their respective rights to trial by jury.

3. Failure of the Company, the Aranda Adviser, and/or the OHA Adviser to exercise any right or remedy under this Subscription Agreement or any other agreement between the Company, the Aranda Adviser, and/or the OHA Adviser and the Investor, or otherwise, or delay by the Company, the Aranda Adviser, and/or the OHA Adviser in exercising such right or remedy, shall not operate as a waiver thereof. No waiver by the Company, the Aranda Adviser, or the OHA Adviser shall be effective unless and until it is in writing and signed by the Company, the Aranda Adviser, or the OHA Adviser, respectively.

4. This Subscription Agreement and other agreements, documents or Parts referred to herein (including, without limitation, the Investor Questionnaire, the Investor Data Sheet and the Anti-Money Laundering Questionnaire) or in the other Company Documents contain the entire agreement of the parties. There are no representations, covenants or other agreements except as stated or referred to herein and in such other agreements or documents.

5. The headings, titles and subtitles used herein are for convenience only, do not constitute a part of this Subscription Agreement and shall not be deemed to limit, characterize or interpret any provisions of this Subscription Agreement. As used herein, all pronouns shall include the masculine, feminine, neuter, singular and plural thereof wherever the context and facts require such construction.

6. Neither this Subscription Agreement nor any provisions hereof shall be waived, modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, modification, discharge or termination is sought.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

7. Except as otherwise provided herein, this Subscription Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. If the Investor is more than one person, the obligations of the Investor shall be joint and several, and the representations, covenants, agreements and acknowledgments contained herein shall be deemed to be made by and be binding upon each such person and its successors and permitted assigns.

8. Any Protected Person not being a party to this Subscription Agreement may (to the extent determined by the Aranda Adviser in its discretion) enforce any rights granted to it pursuant to this Subscription Agreement in its own right as if it were a party to this Subscription Agreement.

9. The Investor acknowledges and agrees that (a) information relating to its investment in the Company may be received and transmitted via the Internet or electronic mail to the email address provided by the Investor in the Investor Data Sheet under the headings “Primary Correspondence Contact” and/or “Additional Correspondence Contact(s)” or via other electronic means and (b) none of the Aranda Adviser, the OHA Adviser, or the Company nor any of their respective affiliates provides any assurance that these communication methods are secure. Without limiting the foregoing, the Investor hereby agrees that if the documents relating to the offering of the Units (including, without limitation, the Company Documents) have been transmitted to the Investor via the Internet, electronic mail or other electronic means, the Investor is receiving or accessing documents only in the U.S. state or other jurisdiction identified by the Investor in the Investor Data Sheet under the heading “Principal Place of Business or Address of Investor.”

10. This Subscription Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpg or similar attachment to electronic mail, shall be treated in all manners and respects as an original executed counterpart.

11. The words “executed,” “signed,” “signature,” and words of like import in this Subscription Agreement shall, to the fullest extent permitted by law, be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, the Delaware Uniform Electronic Transactions Act or any other similar state laws based on the Uniform Electronic Transactions Act and the Electronic Transactions Act (as amended) of the Cayman Islands.

12. The Investor acknowledges and agrees that any notations, alterations, strike-outs, addenda, inserts or verbiage purporting to amend the terms of this Subscription Agreement shall not be effective unless explicitly agreed to by the Aranda Adviser and the OHA Adviser in writing. For the avoidance of doubt, the issuance of a trade confirmation or contract note shall not be construed as the Aranda Adviser’s or OHA Adviser’s acceptance or agreement to any such purported amendments absent the explicit written agreement of the Aranda Adviser and the OHA Adviser.

IX. SIGNATURE

By executing the signature page to this Subscription Agreement, the Investor agrees to be bound by the foregoing and the other Company Documents.

[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

PART 2

INVESTOR QUESTIONNAIRE

A. INVESTOR ACCREDITATION QUESTIONS

Please indicate the basis of the Investor’s status as an “accredited investor” (as defined in Regulation D promulgated under the Securities Act). Please proceed to “Section B. Qualified Purchaser Questions” as soon as any one of the following boxes is checked.

 

1.	The Investor is a natural person and:

 

a.

Had an individual annual income8 in each of the two most recent years in excess of $200,000, and reasonably expects to have an individual annual income in the current year in excess of $200,000.

 

☐

 

b.

Had, together with the Investor’s spouse, or spousal equivalent,9 joint annual income in excess of $300,000 in each of the two most recent years, and reasonably expects their joint annual income in the current year to exceed $300,000.

 

☐

 

c.

Has an individual net worth or joint net worth with the Investor’s spouse or spousal equivalent in excess of $1,000,000 (for this purpose, excluding the value of the primary residence of the Investor or the Investor’s spouse or spousal equivalent).10

 

☐

 

d.

Holds in good standing a General Securities Representative license (Series 7), an Investment Adviser Representative license (Series 65), or a Private Securities Offerings Representative license (Series 82), in each case, as administered by FINRA.

 

☐

 

2.	The Investor is an entity - i.e., a corporation, partnership, limited liability company or other entity (other than a trust) - and:

 

a.

The Investor is a corporation, partnership, limited liability company, a Massachusetts or similar business trust, or an organization described in Section 501(c)(3) of the Code, in each case not formed for the specific purpose of acquiring the Units and with total assets in excess of $5,000,000.

 

☐

 

b.

The Investor is one of the following institutional investors as described in Rule 501(a) adopted by the SEC under the Securities Act:

A “bank” (as defined in Section 3(a)(2) of the Securities Act) or a “savings and loan association or similar institution” (as defined in Section 3(a)(5)(A) of the Securities Act), whether acting in its individual or fiduciary capacity.

 

☐

A broker or dealer registered pursuant to Section 15 of the Exchange Act.

 

☐

An investment adviser registered under Section 203 of the Investment Advisers Act of 1940, as amended (the “Advisers Act”) or under the laws of any state.

 

☐

8

For purposes of this Investor Questionnaire, a person’s income is the amount of such person’s individual adjusted gross income (as reported on a federal income tax return) increased by: (a) any deduction for depletion of natural resources (Section 611 and others of the Code), (b) any municipal bond interest (Section 103 of the Code) or (c) any losses or deductions allocated to such person as a limited partner in a partnership.

9	A “spousal equivalent” means a cohabitant occupying a relationship generally equivalent to that of a spouse.

10

Indebtedness secured by the primary residence up to the estimated fair market value of the primary residence is not included as a liability in the calculation of the Investor’s individual net worth or joint net worth, unless any incremental borrowing is incurred in the 60 days before the date this Subscription Agreement is accepted and is not in connection with the acquisition of the primary residence, in which case, the incremental borrowing is included as a liability in such calculation. Indebtedness secured by the primary residence in excess of the estimated fair market value of the primary residence is to be included as a liability and deducted from the Investor’s individual net worth or joint net worth. For purposes of calculating joint net worth, joint net worth can be the aggregate net worth of the investor and spouse or spousal equivalent, and assets need not be held jointly to be included in the calculation. Reliance on the joint net worth standard does not require that the securities be purchased jointly.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

An exempt reporting adviser relying on an exemption from registration with the SEC under Section 203(l) or Section 203(m) of the Advisers Act.

 

☐

An “insurance company” (as defined in Section 2(13) of the Securities Act).

 

☐

An investment company registered under the 1940 Act or a “business development company” (as defined in Section 2(a)(48) of the 1940 Act).

 

☐

A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958, as amended.

 

☐

A “rural business investment company” (as defined in Section 384A of the Consolidated Farm and Rural Development Act).

 

☐

A “private business development company” (as defined in Section 202(a)(22) of the Investment Advisers Act).

 

☐

A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees with total assets in excess of $5,000,000.

 

☐

 

3.	The Investor is a trust and:

 

a.

The trustee of the trust is a “bank” as defined in Section 3(a)(2) of the Securities Act or a savings and loan association or other institution referred to in Section 3(a)(5)(A) of the Securities Act.

 

☐

 

b.

The trust has total assets in excess of $5,000,000 and was not formed for the specific purpose of acquiring the Units, and the purchase of the Units is being directed by a person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of the purchase of the Units.

 

☐

 

c.

Each grantor of the trust has the power to revoke the trust and regain title to the trust assets, and each such grantor satisfies the accredited investor standards for natural persons set forth in Question 1 above. NOTE: If the Investor checks this box 3c, each grantor must complete and submit to the Company a copy of this “Section B. Investor Accreditation Questions” along with an original executed signature page. If necessary, please request additional copies of the Subscription Booklet from the Company..

 

☐

 

4.

The Investor is an entity of a type not listed in Questions 2 or 3 above, not formed for the specific purpose of acquiring the Units and with total “investments” (as defined in Rule 2a51-1(b) under the 1940 Act) in excess of $5,000,000.

 

☐

 

5.

The Investor is a “family office” (as defined in Rule 202(a)(11)(G)-1 under the Advisers Act) (i) with assets under management in excess of $5,000,000, (ii) that is not formed for the specific purpose of acquiring the securities offered, and (iii) whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment, or a “family client” (as defined in Rule 202(a)(11)(G)-1 under the Advisers Act) of such family office and whose prospective investment in the Company is directed by such family office.

 

☐

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

6.	An entity in which each shareholder, partner, member or other equity owner of the Investor, as the case may be, satisfies the accredited investor standards set forth in Questions 1 through 5 above.11

 

☐

If the Investor checks this box 6, each equity owner of the Investor’s securities must complete and submit to the Company a copy of this “Section B. Investor Accreditation Questions” along with an original executed signature page. If necessary, please request additional copies of this Subscription Booklet from the Company.

 

7.	Check the box next to this Question 7 if none of the statements in Questions 1 through 6 of this “Section B. Investor Accreditation Questions” are applicable to the Investor.

 

☐

B. TYPE OF INVESTOR

Please indicate which one of the following categories applies to the Investor:

 

(a)		Individuals that are United States persons12 (including their trusts)		☐
(b)		Individuals that are not United States persons (including their trusts)		☐
(c)		Broker-dealers		☐
(d)		Insurance companies		☐
(e)		Investment companies registered with the Securities and Exchange Commission		☐
		Fund of funds		☐
		Other investment companies registered with the Securities and Exchange Commission		☐
(f)		Private funds13		☐
		Fund of funds		☐
		Other private funds		☐
(g)		Non-profits		☐
(h)		Pension plans (excluding governmental pension plans)		☐
(i)		Banking or thrift institutions (proprietary)		☐
(j)		State or municipal government entities14 (excluding governmental pension plans)		☐
(k)		State or municipal governmental pension plans		☐
(l)		Sovereign wealth funds and foreign official institutions		☐
(m)		Investors that are not United States persons and about which the foregoing beneficial ownership information is not known and cannot reasonably be obtained because the beneficial interest is held through a chain involving one or more third-party beneficiaries		☐
(n)		Other (please describe:_____________________________________________)		☐

C. PUBLIC DISCLOSURE LAWS

1. Is the Investor subject to the U.S. Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), any state public records access laws, any state or other jurisdiction’s laws with similar intent or effect to the FOIA, or any other similar statutory or legal right that might result in the disclosure of confidential information relating to the Company?

☐ Yes ☐ No

If Question 1 above was answered “Yes,” please indicate the relevant laws to which the Investor is subject and provide any additional explanatory information in the space below:

11

In determining the accredited investor status of entities for purposes of this Question 6, the Investor is permitted to look through various forms of equity ownership to natural persons. If those natural persons are themselves accredited investors, and if all other equity owners of the Investor are accredited investors, then the Investor may check the box next to Question 6 as an indication of the basis of the Investor’s status as an accredited investor.

12	As defined in Rule 203(m)-1 under the Investment Advisers Act, which includes any natural person that is resident in the United States.

13	A “private fund” means any issuer that would be an investment company as defined in Section 3 of the Investment Company Act of 1940 but for Section 3(c)(1) or 3(c)(7) of that Act.

14

“Governmental entity” means any state or political subdivision of a state, including (i) any agency, authority, or instrumentality of the state or political subdivision; (ii) a plan or pool of assets controlled by the state or political subdivision or any agency, authority, or instrumentality thereof; and (iii) any officer, agent, or employee of the state or political subdivision or any agency, authority, or instrumentality thereof, acting in their official capacity.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

D. PAY TO PLAY

1. If the Investor is an entity substantially owned by a government entity (e.g., a single investor vehicle) and the investment decisions of such entity are made or directed by such government entity, please provide the name of the government entity:¹⁵ ______________________.

Please note that, if the Investor enters the name of a government entity in this Section F.1, the Company will treat the Investor as if it were the government entity for purposes of Rule 206(4)-5 (the “Pay to Play Rule”) promulgated under the Advisers Act.

2. If the Investor is (a) a government entity, (b) acting as trustee, custodian or nominee for a beneficial owner that is a government entity, or (c) an entity described in Section F.1, the Investor hereby certifies that:

Other than the Pay to Play Rule, no “pay to play” or other similar compliance obligations would be imposed on the Company, the Aranda Adviser, the OHA Adviser or their respective affiliates, employees or third-party placement agents (if any) in connection with the Investor’s subscription.

Please check the box to indicate that the Investor is making such certification. ☐

If the Investor cannot make such certification, indicate in the space below all other “pay to play” laws, rules or guidelines, or lobbyist disclosure laws or rules, the Company, the Aranda Adviser, the OHA Adviser or their respective affiliates, employees or third-party placement agents (if any) would be subject to in connection with the Investor’s subscription:

END OF INVESTOR QUESTIONNAIRE.

PLEASE PROCEED TO THE “INVESTOR DATA SHEET” (PART 3)

15

“Government entity” for purposes of this “Section F. Pay to Play” means any State or political subdivision of a State, including: (i) any agency, authority, or instrumentality of the State or political subdivision; (ii) a pool of assets sponsored or established by the State or political subdivision or any agency, authority or instrumentality thereof, including, but not limited to a “defined benefit plan” as defined in section 414(j) of the Internal Revenue Code (26 U.S.C. 414(j)), or a State general fund; (iii) a plan or program of a government entity; and (iv) officers, agents, or employees of the State or political subdivision or any agency, authority or instrumentality thereof, acting in their official capacity.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

PART 3

INVESTOR DATA SHEET

 

1.	The Investor:

Full Name of Investor (no initials):

Social Security Number or Taxpayer Identification Number¹⁶ (please identify document being referenced): __________________________

 

 

2.	In providing the following contact information, please freely indicate where information requested is identical to information previously supplied.

SEND CORRESPONDENCE TO:

 

16

If the Investor is investing as a joint tenant or tenant in common, please provide the applicable information for each joint tenant or tenant in common. If the Investor is a grantor of a “grantor trust,” or a “grantor trust” with multiple grantors, please provide the applicable information for each grantor.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

SEND CAPITAL CALL NOTICES TO:

 

SEND DISTRIBUTIONS TO:

Wiring Instructions:

 

Name of Bank

Address of Bank

ABA Number

Account Number

Name Under Which Account Is Held

 

3.	Form of ownership of the Units (individuals must check one):

 

Form of ownership of the Units (entities must check one):

 

Additional questions for entities only:

State or other jurisdiction in which incorporated or formed: ___________________________________________________________________________

Date of incorporation or formation:

___________________________________________________________________________

 

Additional questions for individuals only:

Indicate the current occupation and employer of the Investor, any for-profit boards of directors on which the Investor sits, and any corporate officer positions the Investor holds:

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

Indicate the type of entity of such employer (e.g., public/private company, alternative investment fund, broker/dealer, investment adviser, other financial services firm or other business):

(Please update employment information as and when it may change. In addition, the Investor may be contacted by the Aranda Adviser or OHA Adviser at a later date to provide additional information regarding its employment. Investors who are employed by the Aranda Adviser or OHA Adviser or an affiliate of either of the Aranda Adviser or OHA Adviser need not complete these additional questions.)

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

PART 4

SIGNATURE PAGE

This page constitutes the signature page for the Subscription Agreement, which includes, without limitation, the power of attorney contained therein, the Investor Questionnaire, the Investor Data Sheet and the Anti-Money Laundering Questionnaire, and evidences your agreement to be bound by the terms and conditions of the Company Documents and permits the Aranda Adviser to execute the LLC Agreement as your attorney-in-fact. The parties hereto have executed this Subscription Agreement on the date written below, with effect as of the date accepted and agreed by the Aranda Adviser and OHA Adviser.

 

$___________________________________________________		_______________________________, _____
Amount of Capital Commitment		Date

 

INDIVIDUALS				ENTITIES
Signature of Investor				Name of Entity (Please type or print)
				By:
Full Name of Investor (Please type or print)						Signature
Full Name of Spouse if Co-Owner (Please type or print)				Name of Authorized Signatory (Please type or print)
Signature of Spouse if Co-Owner				Title of Authorized Signatory (Please type or print)

[Signature Page to the Subscription Agreement of APS BDC, LLC]

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

ADDITIONAL UNITHOLDER SIGNATURE PAGE

ACCEPTED AND AGREED

this _____ day of _____________, ____.

INVESTOR NAME: _______________________________

AS TO A CAPITAL COMMITMENT OF $ _____________________

REMAINING AMOUNT OF CAPITAL COMMITMENT THAT CAN BE

ACCEPTED AS OF A SUBSEQUENT CLOSING DATE:

$_____________________

APS BDC, LLC

 

By:
		Name:
		Title:

CHS (US) MANAGEMENT, LLC

By:		CHS GP, LP, its managing member
By:		CHS UGP LLC, its general partner
By:
		Name:
		Title:

OHA PRIVATE CREDIT ADVISORS II, L.P.

By:
		Name:
		Title:

[Signature Page to the Subscription Agreement of APS BDC, LLC]

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

ADDITIONAL UNITHOLDER SIGNATURE PAGE

ACCEPTED AND AGREED

this _____ day of _____________, ____.

INVESTOR NAME: _______________________________

AS TO A CAPITAL COMMITMENT OF $ _____________________

REMAINING AMOUNT OF CAPITAL COMMITMENT THAT CAN BE

ACCEPTED AS OF A SUBSEQUENT CLOSING DATE:

$_____________________

APS BDC, LLC

 

By:
		Name:
		Title:

CHS (US) MANAGEMENT, LLC

By:		CHS GP, LP, its managing member
By:		CHS UGP LLC, its general partner
By:
		Name:
		Title:

OHA PRIVATE CREDIT ADVISORS II, L.P.

By:
		Name:
		Title:

[Signature Page to the Subscription Agreement of APS BDC, LLC]

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

PART 5

PRIVACY NOTICE

COMMITMENT TO PRIVACY

This Privacy Notice is provided by the Aranda Adviser, the OHA Adviser, and their respective affiliated entities (collectively, the “Firms” or “we”). The Firms are committed to handling “non-public personal information” and “personal data” relating to their respective natural person clients and investors, and natural persons affiliated with their respective corporate clients and investors, responsibly and in accordance with applicable laws, rules and regulations.

Technology has dramatically changed the way information of all kinds is gathered, used and stored, but the importance of preserving the security and confidentiality of information has remained a core value of both of the Firms. The Firms recognize and respect the privacy expectations of their clients, investors and their clients’ and investors’ affiliated individuals. Confidentiality and protection of non-public personal information and personal data are among its fundamental responsibilities. The Firms adhere to the policies and practices described in this Privacy Notice regardless of whether a client or investor is a current or former client or investor.

This Privacy Notice is current as of the date hereof, but as circumstances or requirements change, the Firms may need to amend this Privacy Notice. The Firms will notify their then-current clients and investors of any material amendment.

WHAT WE NEED YOU TO DO

Please provide this Privacy Notice to any natural persons whose Personal Information (as defined below) may be provided to the Firms. In addition, to the extent the Firms are provided with sensitive non-public personal information (as defined below), we recommend it is encrypted before being sent.

KEY CONCEPTS

In this Privacy Notice, “Relevant Individual” means any natural person client or investor, or any natural person affiliated with a client or investor (such as an employee, director, officer, partner, member, shareholder, beneficial owner, affiliate, agent or representative), who provides “non-public personal information” or “personal data” to the Firms. Such information may be provided through subscription agreements, investor questionnaires, investment advisory agreements, account applications, other forms or agreements and correspondence (written, telephonic or electronic).

“Personal data” is certain information relating to an identified or identifiable natural person (as further defined in the EU or UK General Data Protection Regulation (Regulation (EU) 2016/679) and any relevant transposition of, or successor or replacement to, that regulation (together, the “European Data Protection Legislation”), in the Cayman Islands Data Protection Act and related regulations, and any successor or replacement to such law or regulations (together, the “Cayman Data Protection Legislation”)) and other applicable laws and regulations relating to privacy, data protection, breach notification, or the processing of personal information (collectively “Applicable Privacy Laws”). This Privacy Notice contains the information required to be disclosed under Applicable Privacy Laws. For purposes of the Cayman Islands Data Protection Act, the Company is the data controller. “Non-public personal information” is any personally identifiable, financial information relating to natural persons that is not publicly available. We refer in this Privacy Notice to “personal data” and “non-public personal information” together as “Personal Information”.

PERSONAL INFORMATION COLLECTED

The Firms may collect and process some or all of the following categories of Personal Information:

 

•

contact information;

 

•

full name, residential address and date of birth;

 

•

information about a Relevant Individual’s interests in funds (such as account balances and percentage interests);

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

•

other financial information (e.g., assets, net worth, income, investments, beneficial interests, investment history, bank account details and other personal financial data);

 

•

employment information; and

 

•

government-issued identification details (e.g., social security number), passport, utility bills and other background or identity information.

Where the client or investor is an individual, the Firms will usually collect this information directly from the individual. Where the client or investor is a corporate entity, the Firms will usually collect the information from the client or investor or their professional advisors. In some cases, the Firms may receive the information from a third party, such as a background check provider.

USES OF PERSONAL INFORMATION

The Firms will use Personal Information for some or all of the following purposes:

 

•

on the basis of their respective legitimate interests in managing their relationship with the client or investor;

 

•

on the basis of their respective legitimate interests in managing their business operations and information technology resources (for example, managing internal directories and client relationship management systems);

 

•

on the basis of their respective legitimate interests in protecting the Firms, their employees, clients, investors, trading partners and others;

 

•

to address legal requirements (including laws designed to protect the integrity of the financial sector, which require measures such as anti-money laundering, counter-terrorist financing, prevention of proliferation financing and sanctions screening checks and the recording of calls and emails); and

 

•

for Firm-related informational or marketing communications, where appropriate and permitted by applicable law, as part of the Firms’ respective legitimate business interests.

From time to time, the Firms may also use a Relevant Individual’s Personal Information in other situations, such as with the Relevant Individual’s consent.

Where the Firms request Personal Information in connection with entering into an investment relationship or during the course of that relationship, unless they note otherwise when making the request: (i) provision of the Personal Information is mandatory and in most cases is necessary for the Firms to meet statutory or regulatory obligations, and (ii) failure to provide the information may result in denial of the opportunity to enter into, or remain in, the investment relationship. Please contact the Firms with any questions about whether the provision of any particular Personal Information is required in any particular case.

DISCLOSURES OF PERSONAL INFORMATION

For the purposes described in the previous section, where permitted by applicable law, the Firms may share Personal Information in some or all of the following ways:

 

•

with the client or investor;

 

•

within the Firms;

 

•

with other entities that assist the Firms in carrying out the activities described above, including professional advisors, technology providers, auditors, administrators, registrars, depositaries and other service providers;

 

•

with regulatory bodies and governmental authorities;

 

•

with other participants in certain transactions with the Firms (for example, to assist a third party in discharging their legal obligations in respect of, for example, anti-money laundering legislation and to honor their legal right to obtain a recording of certain regulated calls or a copy of certain regulated electronic communications between the Firms and that third party);

 

•

with other third parties (such as litigants, or an acquirer or others connected with an acquisition or similar transaction involving the Firms); and

 

•

with agents, delegates, or related, associated or affiliated entities of the foregoing.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

From time to time, the Firms may also share a Relevant Individual’s Personal Information in other situations, such as at the Relevant Individual’s request.

Personal Information may be transferred to countries that may not have the same or equivalent data protection laws as those of the Relevant Individual’s home country. For example, the Personal Information may be transferred among the OHA Adviser’s offices in the United States, the United Kingdom, Luxembourg, Australia or Hong Kong, or the Aranda Adviser’s offices in the United States and Singapore, as well as to any other countries where the recipients of the transfers described above are located. Where required, the Firms make such transfers in compliance with the Applicable Privacy Laws, such as through the use of model contractual clauses (as published by the European Commission).

SECURITY OF PERSONAL INFORMATION

The Firms restrict access to Personal Information to those of their respective employees, partners, officers, consultants, advisors and service providers who reasonably need to know that information to provide products or services to the relevant client or investor or as otherwise required by law. The Firms maintain physical, electronic, and procedural safeguards that comply with applicable laws, rules and regulations to guard Personal Information. The specific security measures the Firms use in a particular context depend on that context, but the Firms draw from measures such as access controls, malware defenses, encryption, facility security, and various monitoring strategies. The Firms also maintain incident response procedures.

RETENTION OF PERSONAL INFORMATION

The Firms may retain Personal Information for so long as necessary for the purposes described above, unless a longer retention period is required or permitted by applicable law. To provide security and business continuity for the activities described in this Privacy Notice, the Firms may make backups of certain data, which they may retain for longer than the original data.

RIGHTS AND CHOICES

Where the European Data Protection Legislation or the Cayman Data Protection Legislation applies, Relevant Individuals may have the right to:

 

•

In certain cases, object to the Firms’ processing of their Personal Information.

 

•

Request access to their Personal Information (commonly known as a “data subject access request”). This enables the Relevant Individual to receive a copy of the Personal Information the Firms hold about them as well as certain details about its processing to be able to check that the Firms are processing it lawfully.

 

•

Request correction of the Personal Information that the Firms hold about them. This enables Relevant Individuals to have any incomplete or inaccurate information the Firms hold about them corrected.

 

•

Request erasure of their Personal Information. This enables Relevant Individuals to ask the Firms to delete or remove Personal Information if the Firms do not need to continue to process it. Relevant Individuals also have the right to ask the Firms to delete or remove their Personal Information where they have exercised their right to object to processing (see above).

 

•

Request the restriction of processing of their Personal Information. This enables Relevant Individuals to ask the Firms to suspend the processing of their Personal Information if, for example, the Relevant Individual wants the Firms to establish their accuracy or the reason for processing it.

 

•

Request to receive a copy of their Personal Information in a machine-readable, commonly used and structured format, or to have it transmitted in such format to a third party.

These rights may apply under other Applicable Privacy Laws as well. If a Relevant Individual wishes to exercise any of these rights, they should contact the Firms using the contact details below. The various rights are not absolute and each is subject to certain exceptions, qualifications and conditions. For example, if a Relevant Individual wishes to object to processing, the Firms may need to discuss with the Relevant Individual whether its use of their Personal Information needs to continue for other lawful purposes, such as fulfilment of a legal or contractual requirement.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

The Firms will respond to a Relevant Individual’s request within the legally mandated deadline for a response. In some cases, the Firms may not be able to fulfill the request to exercise the right by this date and may need more time. Where the Firms cannot provide a full response to the Relevant Individual for any reason, the Firms will let the Relevant Individual know about this in its initial reply to the request.

Where these rights apply, a Relevant Individual will not normally have to pay a fee to access their Personal Information (or to exercise any of the other rights described above). In some cases, the Firms may charge a reasonable fee if the request for access is unfounded or excessive, or if the Relevant Individual requests multiple copies of the information. Alternatively, the Firms may refuse to comply with the request in such circumstances. The Firms may need to request specific information from the Relevant Individual to confirm their identity and ensure their right to access the Personal Information (or to exercise any of their other rights).

If Relevant Individuals have any questions, concerns or complaints relating to the Firms’ handling of their Personal Information, they should contact the Firms as described below. Relevant Individuals may also contact the relevant governmental authority (e.g., the Cayman Islands Ombudsman, for Cayman Islands funds, or the UK Information Commissioner’s Office, for UK individuals) with a complaint related to the Firms’ handling of their Personal Information. However, the Firms invite Relevant Individuals to allow the Firms to try to resolve the situation directly. Privacy is important to the Firms, and the Firms will do their best to address any concerns.

CONTACTING THE FIRM

To exercise any rights under this Privacy Notice or applicable law (including to request further information on the mechanisms the Firms have put in place in relation to Personal Information transfers outside the Cayman Islands, the European Union and/or the UK), to notify the Firms of your preferences, or to provide the Firms with complaints, concerns or questions, please contact the Firms via e-mail.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

PART 6

TAX FORMS

The Investor is required to submit appropriate tax forms. If the Investor is two or more individuals that are purchasing the Units as either joint tenants with right of survivorship or tenants-in-common, please note that each individual must sign and complete the appropriate IRS form in accordance with its specific instructions.

Please carefully review the instructions accompanying the IRS form that the Investor is completing. The Advisor will not consider an IRS form complete unless the Investor has submitted all statements, certifications or other documents required by the applicable IRS form.

Please note that the Investor may be required to provide updated tax forms (and certain other information from time-to-time, including, without limitation, revised forms that may be published after the date hereof pursuant to FATCA).

The most current versions of the IRS Form W-9 and Forms W-8 (W-8BEN, W-8BEN-E, W-8IMY, W-8ECI or W-8EXP) and their instructions are located at the websites listed below.

Form W-9

http://www.irs.gov/pub/irs-pdf/fw9.pdf

Form W-8BEN

https://www.irs.gov/pub/irs-pdf/fw8ben.pdf?icid=AELOSTBC2

Form W-8BEN-E

https://www.irs.gov/pub/irs-pdf/fw8bene.pdf

Form W-8IMY

https://www.irs.gov/pub/irs-pdf/fw8imy.pdf

Form W-8ECI

https://www.irs.gov/pub/irs-pdf/fw8eci.pdf

Form W-8EXP

https://www.irs.gov/pub/irs-pdf/fw8exp.pdf

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

PART 7

ANTI-MONEY LAUNDERING QUESTIONNAIRE

In order for the Company, the Aranda Adviser, the OHA Adviser and/or any of their respective affiliates to comply with applicable anti-money laundering and counter-terrorist financing laws and regulations and applicable sanctions lists, please provide the information requested below:

 

1.	Investor Information:

 

(a)

Is the Investor a regulated financial institution?

☐ Yes ☐ No     

If the Investor answered “yes,” please provide the name of the Investor’s regulator, the Investor’s registration number and evidence of regulatory status:

 

(b)

If the Investor answered “Yes” to Question 1(a) above, is the regulator:

 

i.

based in a jurisdiction that is a member of the Financial Action Task Force on Money Laundering and is not being FATF monitored (a “FATF Member Jurisdiction”)?

☐ Yes ☐ No     

 

ii.

based in a jurisdiction that is a member of the Organization for Economic Cooperation and Development (an “OECD Jurisdiction”)?

☐ Yes ☐ No     

 

iii.

in a country assessed by the Company as having a low degree of risk of money laundering and terrorist financing in accordance with the Cayman Islands Anti-Money Laundering Regulations?

☐ Yes ☐ No     

 

(c)

If the Investor answered “No” to Question 1(a) above, please provide the name of the jurisdiction in which the Investor is based:

 

(d)

Is the Investor:

 

i.

based in a jurisdiction that is a FATF Member Jurisdiction?

☐ Yes ☐ No     

 

ii.

based in an OECD Jurisdiction?

☐ Yes ☐ No     

 

iii.

in a country assessed by the Company as having a low degree of risk of money laundering and terrorist financing in accordance with the Cayman Islands Anti-Money Laundering Regulations?

☐ Yes ☐ No     

 

(e)

Is the Investor a company quoted or listed on a stock exchange?

☐ Yes ☐ No     

If the Investor answered “yes,” please provide the ticker (or other applicable reference number), the name of the stock exchange and the jurisdiction of the stock exchange:

 

(f)

Is the Investor a central or local government, statutory body or agency of government?

☐ Yes ☐ No     

If the Investor answered “yes,” please provide the name of the home state authority and the nature of its relationship with the Investor:

 

(g)

Is the Investor a majority-owned subsidiary or pension scheme (or similar) of an entity that is one of the entity types listed above in Questions 1(a), 1(d) or 1(e)?

☐ Yes ☐ No     

If the Investor answered “yes,” please provide further details:

 

(h)

Is the Investor a fund?

☐ Yes ☐ No     

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

If the Investor answered “yes,” please provide the name of the fund manager, its regulated status and evidence of its regulated status:

 

2.	Bank Account Information:

 

(a)

Please list the bank name, account names and the country of the bank from which the Investor’s capital contributions to the Company are intended to be made.

Bank Name:_____________________________________________________________________

Account Name:__________________________________________________________________

Country:________________________________________________________________________

 

(b)

Do the capital contributions that the Investor plans to make to the Company come from bank accounts outside of the United States?

☐ Yes ☐ No     

 

(c)

If the answer is “yes” to Question 2(b) above, will all such bank accounts be located in a FATF Member Jurisdiction?

☐ Yes ☐ No     

 

3.	Identification Information:

To be completed by natural persons:

 

(a)

Country of primary residence (domicile) of the Investor:

 

(b)

Date of birth of the Investor:

 

(c)

Current occupation and business affiliation(s) of the Investor:

 

(d)

Current residential address of the Investor:

 

(e)

Please describe the source of the Investor’s funds that will be used to make capital contributions to the Company.

To be completed by entities:

 

(a)

State (if applicable) and country in which incorporated or formed:_________________________

 

(b)

Date of incorporation or formation:__________________________________________________

 

(c)

Entity registration number: _________________________________________________________

 

(d)

Type of business of the Investor:____________________________________________________

 

(e)

Address of the principal office/headquarters of the Investor:_______________________________

 

(f)

Please describe the source of the Investor’s funds that will be used to make capital contributions to the Company.

 

4.	Identification Documentation:

 

(a)

For investors that are individuals: Please provide certified copies of (i) a passport with picture page or non-U.S. persons may also provide an alien identification card number, or number and country of issuance of any other government-issued document evidencing nationality or residence and bearing a photograph or similar safeguard; (ii) a recent utility bill (other than a mobile phone bill) or other reliable evidence verifying the investor’s current residential address; and (iii) a reference letter from a bank in a FATF Member Jurisdiction with which the individual has a current relationship and has maintained a relationship for at least two years.

If the Investor cannot provide the bank reference letter in (iii) above, the Investor consents to the Company obtaining a copy of the Investor’s credit report by checking the following box: ☐

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

(b)

For investors that are entities (other than trusts): Please provide (a) (i) a list of all individuals who exercise control over the management of the Investor, such as: executive officers (e.g., Chief Executive Officer, Chief Financial Officer, Chief Operating Officer), managing members, directors or general partners, or any other individual(s) who regularly perform(s) similar functions and (ii) for two persons (where two such persons exist) from the foregoing list, the information required in clauses (i) and (ii) of Question 4(a) above; and (b) certified copies of: (i) a certificate of incorporation, articles of association, partnership agreement, limited liability company agreement or other similar organizational document; (ii) a mandate authorizing the subscription (e.g., a certified resolution or an excerpt from the Investor’s constitutive documents evidencing its authority to invest in an entity such as the Company); and (iii) authorized signatories list with specimen signatures (including all actual signatories on submitted documents).

 

(c)

For investors that are trusts: Please provide (a) (i) a list of all individuals who exercise control over the management of the Investor (such as the directors of the trustee or any other individual(s) who regularly perform(s) similar functions), the settlor(s), the grantor(s), the protector(s) (if any), the enforcer(s) (if any) and the beneficiaries (if any); and (ii) for all persons on the foregoing list, the information required in clauses (i) and (ii) of Question 4(a) above; and (b) certified copies of (i) the trust deed or other organizational document of the trust (such document(s) showing the full name of the trust and the nature and purpose of the trust), (ii) if the trustee of the trust is an entity, a certificate of incorporation, partnership agreement, limited liability company agreement or other similar organizational document of the trustee, (iii) a mandate authorizing the subscription (e.g., a certified resolution or an excerpt from the Investor’s constitutive documents evidencing its authority to invest in an entity such as the Company); and (iv) authorized signatories list with specimen signatures (including all actual signatories on submitted documents).

 

(d)

For an example of how to properly certify any of the foregoing identification documents, please refer to the “Sample Form of Certification” (included as Appendix A to this Part 7 of this Subscription Booklet).

 

5.

Intermediaries: If the Investor (a) is investing in the Company for the beneficial interest of other underlying investors, such as, without limitation, in its capacity as an introducing firm, an asset aggregator, a nominee, a trustee, an agent, a representative, a fund-of-funds, a swap counterparty, or any other pooled or intermediary investment vehicle, or (b) has otherwise entered into, or proposes to enter into, any agreement with another person or entity which provides such person or entity with a beneficial or economic interest in the Units, then the Investor must, in addition to providing the information and documents required by Question 4 above and Question 6 below, complete the “Certification of Intermediaries” (included as Appendix B to this Part 7 of this Subscription Booklet).

 

6.	Certification of Beneficial Owners:

 

(a)

Please complete the table below and provide the requested information as set out in the table:

(i) For investors that are entities (other than trusts or nominee/custodial accounts): for each individual, if any, who directly or indirectly, through any contractual arrangement, understanding, relationship or otherwise (I) owns 10% or more of the economic or beneficial interests of the Investor, (II) controls 10% or more of the voting rights attaching to the economic or beneficial interests of the Investor, or (III) controls the Investor or exercises ultimate control over the management of the Investor, and each entity who directly owns 10% or more of the economic or beneficial interests of the Investor.

(ii) For investors that are nominee/custodial accounts: for each individual, if any, who directly or indirectly, through any contractual arrangement, understanding, relationship or otherwise (I) owns 10% or more of the nominee’s or custodian’s investment in the Company, (II) controls 10% or more of the voting rights attaching to the nominee’s or custodian’s investment in the Company or (III) controls the nominee/custodian or exercises ultimate control over the management of the nominee/custodian, and each entity who directly owns 10% or more of the nominee’s or custodian’s investment in the Company.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

(iii) For investors that are trusts: for each settlor, trustee, beneficiary (if the beneficiaries are not identifiable individuals, describe the class of persons in whose main interest the trust is set up) and any individual who has control over the trust (including the ability to dispose of, lend, advance, invest, pay or apply trust property; vary or terminate the trust; add or remove a person as beneficiary or to or from a class of beneficiaries; appoint or remove trustees or give another individual control over the trust; or can direct, withhold consent, or veto any of the foregoing powers).

(iv) If no individual or entity meets the foregoing definitions, please write “Not Applicable”.

 

Name		Date of Birth / Formation Date and State/Country in which Incorporated or Formed		Primary Residential Address /Principal Place of Business		% of Economic / Beneficial Interest		Identification Number17 (please identify the document being referenced)

(v) Please also provide the identifying documents (in accordance with Question 4 above) for each individual identified above.

(vi) Please provide a document which explains your ownership / control structure. For example, structures charts, or organograms which set out both your internal control structure and your beneficial owners and percentages of such ownership, if available.

 

(b)

Please provide the following information for two individuals who exercise control over the management of the Investor, such as: an executive officer (e.g., Chief Executive Officer, Chief Financial Officer, Chief Operating Officer); managing member, director or general partner; or any other individual who regularly performs similar functions. (If appropriate, an individual already listed under Question 4 or Question 6(a) above may also be listed in this Question 6(b).) (If no individual or entity meets this definition, please write “Not Applicable”.)

 

Name and Title		Date of Birth		Primary Residential Address		Identification Number18 (please identify the document being referenced)

17

For U.S. persons or entities, please provide (as applicable) a social security number or tax identification number. For non-U.S. persons or entities, please provide (as applicable) a passport number and country of issuance or a commercial registration number, tax registration number or similar registration number. In lieu of a passport number, non-U.S. persons may also provide an alien identification card number, or number and country of issuance of any other government-issued document evidencing nationality or residence and bearing a photograph or similar safeguard. Please identify the document being referenced.

18

For U.S. persons, please provide a social security number. For non-U.S. persons, please provide a passport number and country of issuance. In lieu of a passport number, non-U.S. persons may also provide an alien identification card number, or number and country of issuance of any other government-issued document evidencing nationality or residence and bearing a photograph or similar safeguard. Please identify the document being referenced.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

7.

Investor Representation: The Investor represents and warrants that the information provided in this Part 7 and the background documentation and information provided hereunder are true and correct in all respects as of the date hereof. In addition, the Investor agrees that the representations, warranties and background documentation and information made or provided herein or pursuant to this Part 7 shall be deemed to be reaffirmed by the Investor as of any time the Investor purchases or otherwise acquires additional Units (or makes a capital contribution to the Company) and such purchase or acquisition (or capital contribution) shall be evidence of such reaffirmation, and if any of such representations or warranties made, or background documentation or information provided, ceases to be true, the Investor shall promptly notify the Aranda Adviser and the OHA Adviser of the facts pertaining to such changed circumstances.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

IN WITNESS WHEREOF, the undersigned has executed this Anti-Money Laundering Questionnaire this day of , 20__ .

 

		INDIVIDUALS				ENTITIES
		Signature				Name of Entity
						(Please type or print)
						By:
		Full Name of Investor (Please type or print)						Name: Title:

[Signature Page to Anti-Money Laundering Questionnaire]

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

APPENDIX A

SAMPLE FORM OF CERTIFICATION

Part 1: Sample Form of Certification

The second sentence can be removed if it is not a photo ID document:

I hereby certify that this is a true copy of the original documentation, which I have seen. I further certify that the photograph in the identification document bears a true likeness to the individual named ____________________. This certification is made on this _____ day of ___________, 20__.

 

		Signature
		Full Name of Certifier (Please type or print)
		Title of Certifier
		Name of Entity at which Certifier works
		Address of Certifier
		Phone Number of Certifier

Part 2: Approved Certifiers (who may sign as certifier):

 

•

Lawyer (for a corporate entity, this means an external lawyer)

 

•

Accountant (for a corporate entity, this means an external accountant)

 

•

Director, officer or manager of a regulated credit or financial institution

 

•

Notary Public, member of the judiciary (i.e., judge or other court officer)

 

•

Senior civil servant or an active police or custom’s officer

 

•

Officer of an embassy, consulate or high commission of the country of issue of the document

Please note that an individual may not certify: (a) their own documents, or (b) documents or persons related to, living with, or in a relationship with them even if the individual falls within one of the “approved certifier” categories above.

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

APPENDIX B

CERTIFICATION OF INTERMEDIARIES

TO BE COMPLETED ON THE LETTERHEAD OF THE INTERMEDIARY

To: APS BDC, LLC

In connection with the purchase of units of limited liability company interests (the “Units”) of APS BDC, LLC (the “Company”) by _____________________________ [Insert Investor’s Name] (the “Intermediary”) on behalf of third parties having a beneficial or economic interest in the Units subscribed for by the Intermediary (the “Underlying Investors”), the Intermediary hereby agrees to the following. Capitalized terms used but not defined herein shall have the meanings set forth in Annex A to this Certification of Intermediaries.

I. General Provisions. The Intermediary represents, warrants and agrees that it:

 

A.

has all requisite power and authority from the Underlying Investors to execute and perform the obligations under the Subscription Agreement (including, without limitation, the Parts referred to therein), by and between the Intermediary and the Company, dated as of ____________ __, 202_, and executed by the Intermediary (the “Subscription Agreement”);

 

B.

has made the representations, warranties and covenants in the Subscription Agreement on behalf of itself and the Underlying Investors;

 

C.

has carried out (and will continue to carry out) at least the investor identification procedures set forth in Section III below with respect to all Underlying Investors and the other anti-money laundering and counter-terrorist financing procedures discussed below (together, the “Anti-Money Laundering Procedures”); and

 

D.

will, upon request, provide any information and/or documentation related to the Anti-Money Laundering Procedures performed with respect thereto, including, without limitation, an anti-money laundering certificate.

II. Provisions Relating to Intermediary’s Anti-Money Laundering Program.

 

A.

The Intermediary represents and warrants that it has adopted and implemented anti-money laundering and counter-terrorist financing policies, procedures and controls that are reasonably designed to prevent money laundering, terrorist financing and other criminal activities.

 

B.

The Intermediary will, upon request, provide the Company, the Aranda Adviser, and the OHA Adviser with a copy of its anti-money laundering and counter-terrorist financing policies, procedures and controls, and will thereafter immediately provide the Company, any administrator of the Company, the Aranda Adviser, and the OHA Adviser with any material amendments thereto. The Intermediary represents and warrants that it strictly adheres to, and will at all times during its relationship with the Company strictly adhere to, its anti-money laundering and counter-terrorist financing policies, procedures and controls. The Intermediary agrees to provide such information and execute and deliver such documents as the Company, any administrator of the Company, the Aranda Adviser, or the OHA Adviser may deem reasonably necessary to comply with any and all laws and ordinances to which the Company, any administrator of the Company, the Aranda Adviser, or the OHA Adviser is or may be subject, or pursuant to any governmental or regulatory requests.

III. Provisions Relating to Underlying Investors.

 

A.

The Intermediary will, in accordance with its anti-money laundering and counter-terrorist financing policies, procedures and controls, verify the identities of, identify the source of funds of, understand the ownership and control structure of, and conduct due diligence (and, where appropriate, enhanced due diligence) and obtain a description of the funds that will be used to make capital contributions with regard to, any Underlying Investor and, where applicable, the principal beneficial owners on whose behalf an Underlying Investor is seeking to make an investment.

 

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

B.

The Intermediary will obtain evidence of the identity of each Underlying Investor and, if applicable, the direct or indirect 10% or more economic/beneficial owners of any Underlying Investor or any person or entity on whose behalf the Underlying Investor is seeking to make an investment, maintain such evidence for at least six years from the date of an Underlying Investor’s complete sale of its indirect interest in the Units, and agrees upon request to make such information available to the Company, any administrator of the Company, the Aranda Adviser, or the OHA Adviser and to provide a written certificate of a senior officer of the Underlying Investor with respect to the foregoing.

 

C.

The Intermediary will take all reasonable steps to ensure that it does not make an investment, directly or indirectly, for or on behalf of:

 

1.

a Foreign Shell Bank;

 

2.

a person or entity with whom dealings are restricted or prohibited (whether because such person or entity is targeted on a sanctions list, is owned by, controlled by, or acting on behalf of a sanctioned person, or located or organized in a sanctioned jurisdiction or territory) under any of the following economic sanctions regimes:

 

a.

the United States sanctions administered by the Department of Treasury, Office of Foreign Assets Control (“OFAC”), Department of Commerce, Bureau of Industry and Security, or Department of State;

 

b.

the United Kingdom sanctions administered by His Majesty’s Treasury;

 

c.

the sanctions administered by the jurisdiction or jurisdictions of organization and operation of the Intermediary, or

 

d.

such other jurisdictions as may be identified to the Intermediary by the Company, any administrator of the Company, the Aranda Adviser, or the OHA Adviser; or

 

3.

a person or entity located, organized, or operating in a country or territory that is, or that itself is (a) designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force, of which each of the United States and the United Kingdom is a member, (b) the subject of an advisory issued by the Financial Crimes Enforcement Network of the U.S. Treasury Department, or (c) designated by the Secretary of the Treasury under Section 311 of the USA PATRIOT Act as warranting special measures due to money laundering concerns (any of (a), (b) or (c), a “Prohibited Investor”).

 

D.

Prior to making an investment for or on behalf of a high-risk Underlying Investor, the Intermediary will conduct enhanced due diligence with regard to such high-risk Underlying Investor, as provided by the Intermediary’s anti-money laundering and counter-terrorist financing policies, procedures and controls, in addition to the Intermediary’s routine investor identification procedures, and reasonably confirm that such high-risk Underlying Investor is not violating applicable anti-money laundering and counter-terrorist financing laws and regulations.

IV. Provisions Relating to Suspicious Activity.

 

A.

The Intermediary represents and warrants that (a) it has taken reasonable steps to confirm whether any Underlying Investor (or any person or entity having a beneficial interest in the Underlying Investor) is, or has in the last 12 months been, a Senior Political Figure, or a member of a current Senior Political Figure’s Immediate Family or a Close Associate of a current Senior Political Figure and (b) to the extent the Intermediary confirms that an Underlying Investor (or any person or entity having a beneficial interest in the Underlying Investor) is, or has in the last 12 months been, a current Senior Political Figure, a member of a

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

current Senior Political Figure’s Immediate Family or a Close Associate of a current Senior Political Figure, it has undertaken additional due diligence with respect to such Underlying Investor (and such person or entity having a beneficial interest in such Underlying Investor) to reasonably confirm that their direct or indirect beneficial interests in the Company do not violate any applicable anti-money laundering and counter-terrorist financing laws or regulations.

 

B.

The Intermediary will immediately notify the Company, any administrator of the Company, the Aranda Adviser, and the OHA Adviser if it knows, or has reason to suspect, that an existing or prospective Underlying Investor, or the principal beneficial owners on whose behalf an existing or prospective Underlying Investor has made or is seeking to make an investment, is a Prohibited Investor.

 

C.

The Intermediary agrees immediately to notify the Company, any administrator of the Company, the Aranda Adviser, and the OHA Adviser if it becomes aware of any suspicious activity or pattern of activity or any activity that may require further review to determine whether the activity or pattern of activities is suspicious.

IN WITNESS WHEREOF, the Intermediary has executed this Certification of Intermediaries as of the ____ day of _____________, 20__.

 

INDIVIDUALS				ENTITIES
Signature				Name of Entity
				(Please type or print)
				By:
Full Name of Investor (Please type or print)						Name: Title:

 

HIGHLY CONFIDENTIAL & TRADE SECRET

 

ANNEX A

ANNEX A TO CERTIFICATION OF INTERMEDIARIES

DEFINITIONS

“Close Associate” of a senior political figure is a person who is widely and publicly known to maintain an unusually close relationship with the senior political figure, and includes a person who is in a position to conduct substantial financial transactions on behalf of the senior political figure. A “close associate” also includes persons who are known to have joint beneficial ownership of legal entities or legal arrangements, or any other close business relations, with a senior political figure and natural persons who have sole beneficial ownership of a legal entity or legal arrangement that is known to have been set up for the de facto benefit of a senior political figure.

“Foreign Bank” means an organization that (i) is organized under the laws of a foreign country, (ii) engages in the business of banking, (iii) is recognized as a bank by the bank supervisory or monetary authority of the country of its organization or principal banking operations, (iv) receives deposits to a substantial extent in the regular course of its business, and (v) has the power to accept demand deposits, but does not include the U.S. branches or agencies of a foreign bank.

“Foreign Shell Bank” means a Foreign Bank without a Physical Presence in any country, but does not include a Regulated Affiliate.

“Immediate Family” includes the political figure’s parents, siblings, spouse (or person considered to be equivalent to a spouse), children (and their spouses or persons considered to be equivalent to a spouse) and in-laws.

“Physical Presence” means a place of business that is maintained by a Foreign Bank and is located at a fixed address, other than solely a post office box or an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities, at which location the Foreign Bank (i) employs one or more individuals on a full-time basis, (ii) maintains operating records related to its banking activities, and (iii) is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities.

“Regulated Affiliate” means a Foreign Shell Bank that (i) is an affiliate of a depository institution, credit union or Foreign Bank that maintains a Physical Presence in the United States or a foreign country, as applicable, and (ii) is subject to supervision by a banking authority in the country regulating such affiliated depository institution, credit union or Foreign Bank.

“Senior Political Figure” is defined as a person who is or has been entrusted with a prominent public function in the executive (including regional governments in federalized systems and devolved administrations), legislative, administrative, foreign service (including ambassadors and charge d’affaires), military (including high-ranking officers in the armed forces) or judicial branches of a government (whether elected or not), a senior official of a major political party (being a political party that has some representation in a national or supranational parliament or similar legislative body), a senior executive of a government-owned corporation, members of courts of auditors or the board of a central bank. A “senior political figure” also includes the directors, deputy directors and members of the board or equivalent of international public organizations. In addition, a “senior political figure” includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior political figure.

“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 (Pub. L. No. 107).