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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
BlackRock Fund Investors III
(Name of Issuer)
Shares of Beneficial Interest, par value $.01 per share
(Title of Class of Securities)
Applied for
(CUSIP Number) 091913509
Terry Blaney
Washington State Investment Board
2424 Heritage Court S.W.
P.O. Box 40916
Olympia, WA 98504-0916
360-664-8284
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
March 30, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d- 1(b)(3) or (4), check the
following box / /.
Check the following box if a fee is being paid with the statement /x/.
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five
percent of the class of securities described in Item 1; and (2) has
filed no amendment subsequent thereto reporting beneficial ownership of
five percent or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
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*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class
of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
SCHEDULE 13D
Appplied for
CUSIP No. 091913509
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Washington State Investment Board
91-6019017
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /x/
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) / /
6. CITIZENSHIP OR PLACE OF ORGANIZATION
State of Washington
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE VOTING POWER
4,031.59
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8. SHARED VOTING POWER
None
9. SOLE DISPOSITIVE POWER
4,031.59
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
4,031.59
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.12%
14. TYPE OF REPORTING PERSON*
EP
Item 1. Security and Issuer.
This Schedule 13D relates to shares of beneficial interest, par
value $.01 per share (the "Shares"), of BlackRock Fund Investors, III
(the "Issuer"), a Delaware business trust whose principal executive
office is located at 345 Park Avenue, New York, NY 10154.
Item 2. Identity and Background.
(a)-(c), (f). This statement is filed by the Washington State
Investment Board (the "Reporting Person") which is a state executive
branch agency having the responsibility to manage and invest the assets
of state retirement, insurance and permanent funds. The business
address of the Reporting Person is 2424 Heritage Court SW, P. O. Box
40916, Olympia, WA 98504-0916.
(d)-(e). None
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Item 3. Source and Amount of Funds or Other Consideration.
The Reporting Person acquired 4,031.59 Shares from the Issuer on
March 30, 1995 at a cost of $4,031,591.13 which was provided from the
assets of the state funds managed by the Reporting Person.
Item 4. Purpose of Transaction.
The acquisition of Shares described in Item 3 was made by the
Reporting Person for investment purposes. An employee of the Reporting
Person is a member of the Board of Trustees of the Issuer.
The Reporting Person has no current intention to acquire
additional Shares other than pursuant to its obligations under the
Subscription Agreement with the Issuer incorporated herein by reference
to Exhibit 1 or to dispose of any Shares. Notwithstanding the
foregoing, the Reporting Person may, at any time or from time to time,
acquire additional Shares in any other manner or, subject to the terms
of such Subscription Agreement or the Issuer's Declaration of Trust,
dispose of any or all of the Shares beneficially owned by it, or
continue to hold such Shares, as it may deem advisable. Any decision
with regard to acquisitions, dispositions or holding of Shares will
depend upon circumstances existing from time to time, many of which are
beyond the Reporting Person's control, including general economic and
market conditions.
Although the foregoing reflects the current intentions of the
Reporting Person, such intentions are subject to change at any time.
Except as set forth above, the Reporting Person does not have any plans
or proposals which would result in or relate to any of the transactions
described in Paragraphs (a)-(j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of Issuer.
(a) The Reporting Person acquired 4,031.59 Shares from the
Issuer on March 30, 1995 constituting 43.12% of the Shares
outstanding on such date.
(b) The Reporting Person has the sole power to vote the Shares.
(c) The Reporting Person has not engaged in any other
transactions in the Shares within the past sixty days.
(d) None.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
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Except as described in Item 4 above, the Reporting Person has no
contracts, arrangements or understandings with respect to any securities
of the Issuer. The Subscription Agreement referred to in Item 4 sets
forth certain of the terms and conditions of the sale of Shares to the
Reporting Person and is incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
1. Form of Subscription Agreement.
This statement speaks as of its date, and no inference should be drawn
that no change has occurred in the facts set forth herein after the date
hereof.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true,
complete and correct.
Date: April 10, 1995
WASHINGTON STATE INVESTMENT BOARD
By: /s/ Terry Blaney
Signature
Name: Terry Blaney
Title: Senior Investment Officer-Alternative Investments
168761.c1
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SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "Agreement") made as of this ________ day of
________, 1995 among BlackRock Asset Investors, a Delaware business trust, with
its principal offices at 345 Park Avenue, New York, New York 10154 (the
"Trust"), BlackRock Financial Management L.P., a Delaware limited partnership
with its principal offices at 345 Park Avenue, New York, New York 10154 (the
"Advisor") and the undersigned, BlackRock Fund Investors III, a Delaware
business trust (the "Subscriber").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Trust is authorized to issue an aggregate of up
to 200,000,000 shares of beneficial interest, par value $.01 per share, of the
Trust (the "Shares"), upon the terms and subject to the conditions hereinafter
set forth, and the Subscriber desires to irrevocably commit, upon the terms and
subject to the conditions hereinafter set forth, to purchase up to a specified
aggregate dollar amount of Shares ("Capital Commitment") as set forth on the
signature page hereof;
NOW, THEREFORE, for and in consideration of the premises and
the mutual representations and covenants hereinafter set forth, the parties
hereto do hereby agree as follows:
1. SUBSCRIPTION FOR SHARES AND REPRESENTATIONS AND AGREEMENTS OF SUBSCRIBER
1.1 The Subscriber hereby acknowledges that (a) it was
organized solely for the purpose of investing in the Trust; and (b) by
executing this Agreement, the Subscriber irrevocably commits, upon the terms
and subject to the conditions hereinafter set forth, to purchase up to the
aggregate amount (net of cash distributions of capital from the Trust to the
Subscriber) of Shares of the Trust as set forth upon the signature page hereof.
1.2 The initial closing is expected to occur on or about
January 6, 1995 (the "Initial Closing"), although the Initial Closing may occur
on any date, prior to March 31, 1995, after which at least $200 million of
total capital commitments ("Total Trust Commitments") have been secured from
all investors in the Trust. Subsequent closings may be held on or before
March 31, 1995.
1.3 As summarized in the Confidential Private Placement
Memorandum dated December 21, 1994 (the "Memorandum"), pursuant to and subject
to all of the terms of the Trust's Declaration of Trust, as amended from time
to time (the "Declaration"), and the Subscriber's Declaration of Trust, as
amended from time to time (the "Subscriber's Declaration"), under certain
circumstances following a Trigger Notification Date (as defined in the
Declaration), each shareholder of the Subscriber will be given the right to
cancel its unfunded Capital Commitment (as defined in the Subscriber's
Declaration) and, if so approved by holders of a majority of the Trust's
shares, all unfunded Capital Commitments will be cancelled and, if so approved,
the Trust and each investment company investing in the Trust (each a "Fund" and
collectively, the "Funds") will terminate and promptly wind up their affairs.
In addition, pursuant to and subject to all of the terms of the Declaration,
all unfunded Capital Commitments will be cancelled and the Trust and each Fund
will terminate and promptly wind up their affairs at any time if so approved by
holders of 75% of the Trust's shares. Subject to the foregoing, the period
during which the Capital Commitment may be drawn down by the Trust (the
"Commitment Period") will
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expire on the third anniversary of the Initial Closing; provided, however, that
the Advisor, upon approval by holders of a majority of the outstanding shares
of beneficial interest of the Trust, may extend the Commitment Period for up to
one additional year if (i) at least 50% of the Total Trust Commitments have
been drawn down and invested prior to such expiration date and (ii) the Advisor
determines, in its reasonable judgment, that sufficient opportunities exist to
deploy the unused Total Trust Commitments during the extension period.
1.4 Undrawn Capital Commitments by the Subscriber and
each other Fund may be called by the Trust during the Commitment Period in any
amount not less than $10 million in the aggregate; provided that each such
capital call to the Subscriber and the Funds shall be expressed as a pro rata
percentage of the Subscriber's and each Fund's undrawn Capital Commitment to
the Trust.
1.5 In order to make a capital call on the Subscriber,
the Trust must provide at least 14 days prior written notice of the amount of
the call (both as a percentage of the unpaid portion of the Subscriber's
Capital Commitment and as a dollar amount) and the date (no sooner than 14 days
following the capital call) on which immediately available funds must be
received by the Trust. Upon receipt of funds pursuant to a call, the Trust
will issue in the name of and for the account of the Subscriber that number of
full and fractional Shares having an aggregate net asset value equal to the
amount of the capital call from the Subscriber as determined by the Trust at
any time within 48 hours, excluding Saturdays, Sundays and holidays on which
banks in the City of New York or the New York Stock Exchange are not open for
business, prior to the date of such issuance. Upon the Subscriber's payment to
the Trust pursuant to a capital call, the Subscriber's undrawn Capital
Commitment shall be reduced by the amount of such payment; provided, however,
that the Subscriber's undrawn Capital Commitment shall be increased (but not in
excess of the original amount) by any cash distributions of capital from the
Trust to the Subscriber during the Commitment Period. At or prior to the date
of each capital call, the Trust will advise the Subscriber of the total amount
of such Subscriber's undrawn Capital Commitment, together with details of any
return of capital subsequent to the previous capital call. If the Subscriber
does not receive from one or more of its subscribers the entire amount of the
capital call made by the Subscriber in order to satisfy the Trust's capital
call, the Subscriber will reduce its payment to the Trust accordingly and will
not borrow funds or use funds on hand to satisfy the missing portion of the
Trust's capital call.
1.6 If the Subscriber fails to pay the full amount of a
capital call by the date specified in the notice, the Trust will send a second
notice of such call. If the Subscriber fails to pay the full amount of such
capital call in immediately available funds on or prior to 5:30 p.m. on the
14th day (the "Default Date") after the date of such second notice, the Trust
shall be entitled at any time prior to the 120th day after the Default Date to
repurchase, retire and cancel the same number of its Shares from the Subscriber
as the number of shares of the Subscriber previously repurchased by the
Subscriber pursuant to a parallel repurchase right, at a price per Share equal
to the price per share of the Subscriber paid by the Subscriber. Other than as
set forth in this Section 1.6, the Trust shall not purchase, redeem or
otherwise acquire its Shares.
1.7 If this Agreement is accepted by the Trust after the
date on which the Trust receives funds in satisfaction of its first capital
call (the "Initial Funding Date"), the Trust will specify in such acceptance,
and the Trust will specify in a written notice to each other subscriber that
has a Capital Commitment expressed as a percentage of the Total Trust
Commitments, the amount that the new Subscriber and each such percentage
subscriber, respectively, shall pay in immediately available funds within 14
days after such acceptance or notice, which amount shall be sufficient to
permit all future capital calls to be made on a pro rata basis; provided that
the Trust will accept new or additional subscriptions no more frequently than
biweekly after the Initial Funding Date. Payments due will not be treated as
capital calls subject to the minimum as set forth in Section 1.4.
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1.8 The Subscriber understands and acknowledges (i) that
the Subscriber must bear the economic risk of his investment in the Shares;
(ii) that the Shares have not been registered under the Securities Act of 1933
(the "1933 Act") or any state or foreign securities laws, that the Trust has no
intention of doing so and that the Subscriber has no right to require it to do
so and that therefore such Shares cannot be resold or transferred unless they
are subsequently registered under the 1933 Act and applicable state laws or
unless an exemption from such registration is available; (iii) that the
Subscriber is purchasing the Shares for investment purposes only for the
account of the Subscriber and not with any view toward a distribution thereof;
(iv) that the Subscriber has no contract, undertaking, agreement or arrangement
with any person to sell, transfer or pledge to such person or anyone else any
of the Shares which the Subscriber hereby subscribes to purchase or any part
thereof or interest therein, and the Subscriber has no present plans to enter
into any such contract, undertaking, agreement or arrangement; (v) that the
Subscriber understands that, except as otherwise provided in the Declaration,
the Shares cannot be transferred without the prior written consent of the
Trust; (vi) that there will be no public market for the Shares; (vii) that any
disposition of the Shares or any interest therein may result in unfavorable tax
consequences to the Subscriber; and (viii) that this Agreement represents an
interest in Shares and is subject to the foregoing to the same extent as the
Shares.
1.9 The Subscriber recognizes that the purchase of Shares
involves a high degree of risk in that (i) the Trust has no operating history;
(ii) an investment in the Trust is highly speculative, and only investors who
can afford the loss of their entire investment should consider investing in the
Trust and the Shares; (iii) the Subscriber may not be able to dispose of his
investment; (iv) transferability of the Shares is extremely limited and (v) in
the event of a disposition, the Subscriber could sustain the loss of his entire
investment.
1.10 The Subscriber represents that it is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated under
the 1933 Act, as indicated by the responses to the questions contained in
Section 6 hereof.
1.11 The Subscriber hereby represents that he has been
afforded the opportunity to ask questions of and obtain additional information
concerning the terms and conditions of the offering of the Shares or to verify
the information contained in the Confidential Private Placement Memorandum
dated December 21, 1994, as supplemented from time to time, and the appendices
thereto (collectively, the "Offering Documents") or otherwise relative to the
Trust, to the extent that the officers and representatives of the Trust possess
such information or can acquire it without unreasonable effort or expense. All
such questions if asked have been answered satisfactorily and all such
information provided has been found to be fully satisfactory.
1.12 The Subscriber hereby represents that the Subscriber
has received, reviewed carefully and understands fully the Offering Documents.
The Subscriber has evaluated the risks of investing in the Shares, and has
determined that the Shares are a suitable investment for the Subscriber. The
Subscriber can bear the economic risk of this investment and can afford a
complete loss of his investment. In evaluating the suitability of an
investment in the Shares, the Subscriber has not relied upon any
representations or other information (whether oral or written) other than as
set forth in the Offering Documents, and independent investigations made by the
Subscriber or representative(s) of the Subscriber or the investors in the
Subscriber.
1.13 The Subscriber hereby acknowledges that the offering
of the Shares has not been reviewed, endorsed or recommended by the United
States Securities and Exchange Commission (the "Commission") or any state or
foreign regulatory authority and that no federal, state or foreign authority
has made any finding or determination as to the fairness of the offering of the
Shares.
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1.14 The Subscriber understands that there is no market
for the Shares and that no market is expected to develop for the Shares. The
Subscriber hereby agrees that it will not dispose of an interest in this
Agreement or any of the Shares purchased pursuant hereto (including by way of
sale, transfer, assignment, pledge, hypothecation or any other means) other
than in accordance with the provisions set forth in the Declaration (which
provisions are summarized in the Memorandum).
1.15 Any information which the Subscriber has furnished to
the Trust in Section 6 or on the signature page hereof, is correct and complete
as of the date of this Agreement and if there should be any material change
prior to the Initial Closing in such information or in any representation or
warranty made by the Subscriber herein, the Subscriber will immediately furnish
such revised or corrected information to the Trust.
1.16 The Subscriber hereby represents that the address or
the addresses of the Subscriber furnished by him on the signature page hereof
is the undersigned's principal residence if he is a natural person or its
principal business address or addresses if it is a corporation or other entity.
1.17 The representations, warranties, agreements,
undertakings and acknowledgements made by the Subscriber in this Agreement (the
"Covered Items") are made with the intent that they be relied upon by the Trust
in determining the Subscriber's suitability as a purchaser of the Shares, and
shall survive any such purchase. The Subscriber recognizes that the offer of
the Shares to him was made in reliance upon his representations and warranties
and the acknowledgments and agreements set forth herein, and hereby agrees to
indemnify, to the extent of the Subscriber's undrawn Capital Commitment and the
Subscriber's interest in the Trust (which shall be the maximum indemnification
liability of the Subscriber for all purposes hereof), the Trust, the Advisor
and each of their respective Affiliates (as defined in the Declaration), and to
hold each of them harmless against, all liabilities, costs or expenses
(including reasonable attorneys' fees) arising as a result of the sale or
distribution of the Shares by the Subscriber in violation of the registration
requirements of the 1933 Act (or other applicable law) or any material
misrepresentation or material breach by the Subscriber of the Covered Items.
2. REPRESENTATIONS BY, AND COVENANTS OF, THE ADVISOR AND THE TRUST
2.1 As of the Initial Closing, the Advisor, and as of
each subsequent closing date, the date of notice of each call and the date of
each sale of Shares by the Trust (each, a "Subsequent Date"), the Advisor (but
only to the best of its knowledge insofar as the Trust is concerned) and the
Trust (but solely as to the Trust and the Funds other than the Subscriber and
not as to the Advisor) represent, warrant and, where applicable, covenant that
(A) the Trust has been duly organized, and is subsisting and in good standing,
as a business trust under the laws of the State of Delaware and has the
requisite power and authority to conduct its business as described in the
Offering Documents and the Declaration and (B) each of the Declaration, the
Declaration of Trust of each of the Funds, the Investment Advisory Agreement
(the "Advisory Agreement") in effect between the Trust and the Advisor, this
Agreement, the other subscription agreements with respect to the Trust and each
Fund and any other documents executed and delivered by the Trust, the Funds,
their respective Trustees or the Advisor in connection therewith or herewith
have been duly authorized, executed and delivered by such persons, and are the
legal, valid and binding obligations of such persons enforceable in accordance
with their respective terms, except (i) that such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (ii) that the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
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2.2 As of the Initial Closing and as of each Subsequent
Date, the Advisor represents, warrants and, where applicable, covenants that it
has been duly organized, and is subsisting and in good standing, under the laws
of the state of its organization and has the requisite power and authority to
enter into and perform its obligations under the Advisory Agreement.
2.3 As of the Initial Closing, the Advisor, and as of
each Subsequent Date, the Advisor and the Trust represent, warrant and, where
applicable, covenant that the Shares have been duly and validly authorized and,
when delivered and paid for in accordance with this Agreement, will be duly and
validly issued units of beneficial interest in the Trust and that the
Subscriber shall be entitled to all the benefits of a beneficial owner of the
Trust under the Declaration and the Delaware Act (as defined in the
Declaration).
2.4 As of the Initial Closing, the Advisor represents and
warrants that the Trust is duly qualified to do business and is in good
standing in the State of New York and is not required by virtue of the conduct
of its business to be qualified as a foreign corporation in any other
jurisdiction.
2.5 As of the Initial Closing, the Advisor, and as of
each Subsequent Date, the Advisor, to the extent within its control, and the
Trust represent, warrant and, where applicable, covenant that the Trust will
use the proceeds from the sale of the Shares solely to invest in a manner
consistent with the Offering Documents and to pay the Trust's expenses.
2.6 As of the Initial Closing, the Advisor, and as of
each Subsequent Date, the Advisor, to the extent within its control, and the
Trust represent, warrant and, where applicable, covenant that commencing on the
Initial Funding Date, the Trust will (i) be an investment company within the
meaning of the Investment Company Act of 1940 (the "1940 Act") and be
registered as such under the 1940 Act and (ii) qualify for and be entitled to
receive the special tax treatment afforded a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as amended. Without
limiting the generality of the foregoing, to the extent within the control of
the Advisor, commencing on the Initial Funding Date, the Trust will have
outstanding securities (other than short-term paper) beneficially owned by more
than 100 persons as determined in accordance with provisions of Section 3(c)(1)
of the 1940 Act and the Trust will not be a company described in Sections
3(c)(5) and/or 3(c)(6) of the 1940 Act.
2.7 As of the Initial Closing, the Advisor, and as of
each Subsequent Date, the Advisor (to the best of its knowledge insofar as the
Trust and any Fund is concerned) and the Trust (but solely as to the Trust and
the Funds other than the Subscriber and not as to the Advisor), to the best of
its knowledge, represent, warrant and, where applicable, covenant that neither
the Trust, any Fund, nor the Advisor is in default (nor has any event occurred
which with notice, lapse of time, or both, would constitute a default) in the
performance of any obligation, agreement or condition contained in the
Declaration or the Declaration of Trust of each respective Fund, or in any
indenture, mortgage, deed of trust, credit agreement, note or other evidence of
indebtedness or any lease or other agreement or understanding, or any license,
permit, franchise or certificate, to which any such person is a party or by
which any thereof is bound or to which the properties of any thereof are
subject, nor is any such person in violation of any statute, regulation, law,
order, writ, injunction, judgment or decree to which it is subject, which
default or violation would materially adversely affect the business or
financial condition of such person or impair such person's ability to carry out
its obligations under this Agreement, any subscription agreement with respect
to any Fund, the Declaration or the Declaration of Trust of each respective
Fund, as the case may be, or impair the Advisor's ability to carry out its
obligations under the Advisory Agreement.
2.8 As of the Initial Closing, the Advisor, and as of
each Subsequent Date, the Advisor, and the Trust (but solely as to the Trust
and the Funds other than the Subscriber and not as to the Advisor), represent,
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warrant and, where applicable, covenant that there is no litigation,
investigation, or other proceeding pending or, to the best of its or their
knowledge, threatened against the Trust, each Fund, the Advisor or any of
their respective Affiliates (excluding from such term solely for this purpose
any investor in the Trust or in any Fund other than the Advisor or its
Affiliates) which, if adversely determined, would materially adversely affect
the business or financial condition of the Trust, each Fund or the Advisor or
the ability of such person to carry out its obligations under this Agreement,
any subscription agreement with respect to each Fund, the Declaration or the
Declaration of Trust of each Fund, as the case may be, or impair the Advisor's
ability to carry out its obligations under the Advisory Agreement.
2.9 As of the Initial Closing, the Advisor, and as of
each Subsequent Date, the Advisor, to the best its knowledge, and the Trust, to
the best of its knowledge, represent, warrant and, where applicable, covenant
that neither the Trust nor any person acting on its behalf has taken any
actions that would subject the issuance and sale of the Shares to the
registration and prospectus delivery provisions of the 1933 Act.
2.10 As of the Initial Closing, the Advisor, and as of
each Subsequent Date occuring on or prior to March 31, 1995, the Advisor, and
the Trust represent, warrant and, where applicable, covenant that the Offering
Documents do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained
therein not misleading in light of the circumstances under which they are or
were made.
2.11 As of the Initial Closing, the Advisor, and as of
each Subsequent Date, the Advisor and the Trust represent, warrant and, where
applicable, covenant that if, in connection with the sale of shares in the
Trust, the Trust or the Advisor or an Affiliate of either offers any rights or
benefits to or for the benefit of the purchaser of such shares, rights or
benefits no less favorable than those offered to or for the benefit of such
purchaser shall be offered to the Subscriber.
2.12 As of the Initial Closing and as of each Subsequent
Date, the Advisor represents, warrants and, where applicable, covenants that
the Subscriber has been provided true, complete and correct copies or forms of
all letters, agreements, undertakings and other documents by and among the
Trust or the Advisor or an Affiliate thereof relative to any such person's
purchase of shares of the Trust or any terms, conditions, operations,
obligations or other understandings affecting such Trust.
2.13 As of the Initial Closing and as of each Subsequent
Date, the Advisor represents, warrants and, where applicable, covenants that
the Advisor will reimburse the Trust, BlackRock Capital Finance, and the Funds
for, or cause to be paid on behalf of the Trust, BlackRock Capital Finance and
the Funds, each such entity's allocable share of the aggregate offering and
organizational expenses of the Trust, BlackRock Capital Finance and the Funds
in excess of $750,000.
2.14 The Advisor and/or the Trust, as the case may be,
acknowledges that the representations, warranties and covenants made by the
Advisor and/or the Trust, as the case may be, are made with the intent that
they be relied upon by the Subscriber in committing to purchase and in
purchasing Shares and shall survive any such purchase and that the commitment
to purchase, and each purchase of, Shares by the Subscriber was and will be
made in reliance upon the representations, warranties and covenants set forth
herein. To the extent such representations, warranties and covenants are made
by the Advisor and the Trust, they are made jointly and severally: provided,
however, that if the Subscriber brings action against only the Trust or only
the Advisor, the defending party may implead or seek contribution from the
other and the other will, in addition to any liability or contribution imposed,
be liable to the defending party for the incremental costs incurred by the
defending party in connection with such impleader or contribution proceeding if
(a) the other is found to be responsible for 25%
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or more of the aggregate recovery, (b) the other is found to be responsible for
$1,250,000 or more or (c) the defending party is found to be not responsible
for any amount and the other is found to be responsible for some amount. The
Advisor hereby agrees to indemnify, to the extent of the dollar amount of the
Subscriber's Capital Commitment (which shall be the maximum indemnification
liability of the Advisor for all purposes hereof), the Subscriber and any
Affiliates, and to hold each of them harmless against liabilities, costs or
expenses (including reasonable attorneys' fees) arising as a result of the sale
or distribution of the Shares by the Trust or the Advisor (or any Affiliate of
the Advisor) in violation of the registration requirements of the 1933 Act (or
other applicable law) or any material misrepresentation or material breach by
the Advisor of its representations, warranties and covenants made herein.
3. Closing Conditions
3.1 The Subscriber's obligations hereunder are subject to
the fulfillment (or waiver by the Subscriber), prior to or at the time of the
Initial Closing, of the following conditions:
(a) The representations and warranties set forth
herein on the part of the Advisor shall be true and correct as if made on and
as of the time of the Initial Closing.
(b) The Initial Closing shall have occurred not
later than March 31, 1995; the Total Trust Commitments at the time of the
Initial Closing shall be at least $200 million and the Total Trust Commitments
shall include a capital commitment on the part of the Advisor (either directly
or through one or more affiliates) to one or more of the Subscriber and the
Funds in an aggregate amount equal to the lesser of 5% of the Total Trust
Commitments and $27 million.
(c) The certificate of trust with respect to the
Trust shall have been duly filed in the Office of the Secretary of State of the
State of Delaware.
(d) The Advisor shall have executed and delivered to
the Subscriber a certificate satisfactory in form and substance to the
Subscriber certifying the fulfillment of the conditions specified in clauses
(a) through (c) above.
(e) The Subscriber shall have received opinions
dated the date of the Initial Closing from Skadden, Arps, Slate, Meagher & Flom
in substantially the form attached hereto as Schedule 1.
3.2 If at the Initial Closing the Advisor fails to tender
to the Subscriber the documents specified herein which are required to be
delivered to the Subscriber at the Initial Closing or if any of the conditions
specified in Section 3.1 above shall not have been fulfilled, the Subscriber
shall, at its election, be relieved of all further obligations under this
Agreement.
4. MISCELLANEOUS
4.1 Any notice or other communication given hereunder
shall be deemed sufficient if in writing and sent by facsimile with written
confirmation of receipt and a copy of the notice sent by overnight courier or
if delivered by hand against written receipt therefor, addressed to BlackRock
Asset Investors, c/o BFM Advisory L.P., 345 Park Avenue, New York, New York
10154, Attention: Ralph L. Schlosstein, President (Fax:
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212-754-8760), BlackRock Financial Management L.P., 345 Park Avenue, New York,
New York 10154, Attention: Ralph L. Schlosstein, President, (Fax: 212-754-8760)
or to the Subscriber at his address or facsimile number indicated on the
signature page of this Agreement, or in either case such other person or
address as shall have been given by notice to the other party. Notices shall
be deemed to have been given on the date sent or delivered by hand in
accordance with the provisions set forth in this Section 4.1.
4.2 This Agreement shall not be changed, modified or
amended except by a writing signed by the parties hereto and approved by those
persons owning or committed to purchase shares issued or to be issued by the
Subscribers, and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by such parties and approved
by such persons.
4.3 This Agreement shall be binding upon and inure to the
benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns. This Agreement and any other
agreements referred to herein sets forth the entire agreement and understanding
between the parties as to the subject matter thereof and merges and supersedes
all prior discussions, agreements and understandings of any and every nature
among them with respect to such subject matter. This Agreement may not be
assigned without the prior written consent of each party hereto or the
successor to substantially all of the business of any such person.
4.4 Upon the execution and delivery of this Agreement by
the Subscriber, this Agreement shall become a binding obligation of the
Subscriber with respect to the purchase of Shares as herein provided and shall
survive the insolvency, merger, consolidation, share exchange, sale of assets
and the death or disability of the Subscriber; provided, however, if within 14
days of the Trust's acknowledged receipt of the Subscription Agreement, the
Subscription Agreement is not accepted by the Trust and the Advisor and an
accepted copy is not delivered to the Subscriber, the Subscription Agreement
shall be of no further force and effect unless the Subscriber agrees in writing
to an extension of such 14 day period.
4.5 Notwithstanding the place where this Agreement may be
executed by any of the parties hereto, the parties expressly agree that all the
terms and provisions hereof shall be construed in accordance with and governed
by the laws of the State of New York, without regard to principles of conflicts
of law.
4.6 The holding of any provision of this Agreement to be
invalid or unenforceable by a court of competent jurisdiction shall not affect
any other provision of this Agreement, which shall remain in full force and
effect.
4.7 It is agreed that a waiver by either party of a
breach of any provision of this Agreement shall not operate, or be construed,
as a waiver of any subsequent breach by that same party.
4.7 This Agreement may be executed in one or more
counterparts each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
5. NOTICE TO CERTAIN STATE RESIDENTS
5.1 In making an investment decision investors must rely
on their own examination of the issuer and the terms of the offering, including
the merits and risks involved. These securities have not been recommended by
any federal or state securities commission or regulatory authority in any
jurisdiction. Furthermore the foregoing authorities have not confirmed the
accuracy or determined the adequacy of this document. Any representation to
the contrary is a criminal offense.
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5.2 These securities are subject to restrictions on
transferability and resale and may not be transferred or resold except as
permitted under the 1933 Act, as amended, and the applicable state securities
laws, pursuant to registration or exemption therefrom. Investors should be
aware that they will be required to bear the financial risks of this
investment.
5.3 The Attorney General of the State of New York has not
passed on or endorsed the merits of this offering. Any representation to the
contrary is unlawful.
5.4 Florida Residents: Where sales are made to five or
more persons in Florida (excluding certain institutional purchasers described
in section 517.061(7) of the Florida Securities and Investor Protection Act)
(the "Act"), any such sale made pursuant to section 517.061(11) of the Act
shall be voidable by the purchaser either within three days after the first
tender of consideration is made by such purchaser to the issuer, or an agent of
the issuer, or an escrow agent or within three days after the availability of
that privilege is communicated to such purchaser, whichever occurs later.
5.5 New Hampshire Residents: Neither the fact that a
registration statement or an application for license has been filed under
Chapter 421-B with the State of New Hampshire nor the fact that a security is
effectively registered or a person is licensed in the State of New Hampshire
constitutes a finding by the Secretary of State that any document filed under
RSA 421-B is true, complete and not misleading. Neither any such fact nor the
fact that an exemption or exception is available for a security or a
transaction means that the Secretary of State has passed in any way upon the
merits or qualification of, or recommended or given approval to, any person,
security or transaction. It is unlawful to make, or cause to be made, to any
prospective purchaser, customer or client any representation inconsistent with
the provisions of this paragraph.
5.6 Pennsylvania Residents: If a purchaser is a resident
of the Commonwealth of Pennsylvania, he acknowledges and agrees that (a) the
securities purchased by such purchaser cannot be sold for a period of twelve
(12) months from the date of purchase, except as permitted under section
204.011 of the Pennsylvania Securities Regulations, and (b) pursuant to section
207(M) of the Pennsylvania Securities Act, each Pennsylvania resident who
accepts an offer to purchase securities exempted from registration under
section 203(D) of the Pennsylvania Securities Act directly from an issuer or an
affiliate of an issuer has the right to withdraw his acceptance without
incurring any liability to the seller, underwriter, if any, or any other person
within two (2) business days from the date of receipt by the issuer of his
written binding contract of purchase or, in the case of a transaction in which
there is no written binding contract of purchase, within two (2) business days
after he makes the initial payment for the securities being offered.
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6. CONFIDENTIAL INVESTOR QUESTIONNAIRE
The Subscriber represents and warrants that the purchaser of
the Shares comes within each category marked below, and that for any category
marked, he or she has truthfully set forth the factual basis or reason the
Subscriber comes within that category. ALL INFORMATION IN RESPONSE TO THIS
PARAGRAPH WILL BE KEPT STRICTLY CONFIDENTIAL. The undersigned agrees to furnish
such additional information as is reasonably necessary in order for the Trust
or the Advisor to verify the answers set forth below.
Please mark each applicable box
[ ] a. The undersigned is an individual (not a partnership,
corporation, etc.) whose individual net worth, or joint net
worth with his or her spouse, presently exceeds $ 1,000,000.
Explanation. In calculating net worth you may include
equity in personal property and real estate, including
your principal residence, cash, short-term investments,
stock and securities. Equity in personal property and
real estate should be based on the appraised fair market
value of such property less debt secured by such property.
[ ] b. The undersigned is an individual (not a partnership,
corporation, etc.) who had an income in excess of $200,000 in
each of the two most recent years, or joint income with their
spouse in excess of $300,000 in each of those years (in each
case including foreign income, tax exempt income and full
amount of capital gains and losses but excluding any income of
other family members and any unrealized capital appreciation)
and has a reasonable expectation of reaching the same income
level in the current year.
[ ] c. The undersigned is a director or executive officer of the Trust
which is issuing and selling the Shares.
[ ] d. The undersigned is a bank; a savings and loan association,
insurance company, registered investment company; registered
business development company; licensed small business
investment company ("SBIC"); a plan established and maintained
by a state, its political subdivisions, on any agency on
instrumentality of a state or its political subdivisions, for
the benefit of its employees, if such plan has total assets in
excess of $5,000,000; or an employee benefit plan within the
meaning of Title 1 of ERISA and (a) the investment decision is
made by a plan fiduciary which is either a bank, savings and
loan association, insurance company or registered investment
advisor, or (b) the plan has total assets in excess of
$5,000,000 or is a self directed plan with investment
decisions made solely by persons that are accredited investors.
_______________________________________________________________
_______________________________________________________________
(describe entity)
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[ ] e. The undersigned is a private business development company as
defined in section 202(a)(22) of the Investment Advisors Act
of 1940;
_______________________________________________________________
_______________________________________________________________
(describe entity)
[ ] f. The undersigned is a corporation, partnership, Massachusetts or
other business trust, or a non-profit organization within the
meaning of Section 501 (c)(3) of the Internal Revenue Code, in
each case not formed for the specific purpose of acquiring the
Shares and with total assets in excess of $5,000,000;
_______________________________________________________________
_______________________________________________________________
(describe entity)
[ ] g. The undersigned is a trust with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the Shares, where the purchase is directed by a "sophisticated
person" as defined in Regulation 506(b)(2)(ii). Such
"sophisticated person" has the knowledge and experience in
financial and business matters to capably evaluate the merits
and risks of the prospective investment.
[ ] h. The undersigned is an entity all the equity owners of which are
"accredited investors" within one or more of the above
categories.
_______________________________________________________________
_______________________________________________________________
(describe entity)
[ ] i. The undersigned is not within any of the categories above and
is therefore a nonaccredited investor.
[ ] j. The undersigned is (i) an individual or company whose
subscription is for at least $500,000 or (ii) an individual or
company whose net worth at the time of entering into such
person's or company's subscription agreement is at least
$1,000,000. For this purpose, the term "company" generally
means a corporation, partnership, association, joint-stock
company, trust, or any organized group of persons (which may
include a contractual arrangement), whether incorporated or
not, or any receiver, trustee in bankruptcy or liquidating
agent for any of the foregoing. However, the term "company"
does not include a registered investment company, a business
development company
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as defined in Section 202(a)(22) of the Investment Advisors
Act of 1940 (which would include a registered business
development company) or any "company" which would be required
to register as an investment company except by virtue of the
operation of Section 3(c)(1) of the Investment Company Act of
1940 unless each of such company's equity holders satisfies
the requirements of clause (i) or (ii) above (taking into
account the definition of company used in such clauses).
THE UNDERSIGNED IS INFORMED OF THE SIGNIFICANCE OF THE FOREGOING
REPRESENTATIONS, AND THEY ARE MADE WITH THE INTENTION THAT THE TRUST WILL RELY
ON THEM.
7. MANNER IN WHICH TITLE TO BE HELD (check one)
a. [ ] Individual Ownership
b. [ ] Community Property
c. [ ] Joint Tenant with Right of Survivorship (both parties must sign)
d. [ ] Partnership*
e. [ ] Tenants in Common
f. [ ] Corporation*
g. [ ] Trust*
h. [ ] Other
* If Shares are being subscribed for by an entity other than an
individual, please complete Exhibit A, B or C, as applicable, which are
attached.
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Capital Commitment (please fill in (a) and (b) below): The minimum Capital
Commitment is the lesser of (x) $100 million or (y) 16.67% of the Trust's
maximum amount of Capital Commitments ($600 million).
(a) $________________ million
(b) _________________% of the aggregate Capital
Commitments of the Trust, subject to a maximum
of $_________________ million
BlackRock Fund Investors III
--------------------------------------------------------------
Name(s) Exactly as to Appear on Stock Register
By: __________________________________________________
Name: Wesley R. Edens
Title: Chief Operating Officer
BlackRock Fund Investors III
-------------------------------------------------------
Name Typed or Printed
345 Park Avenue
-------------------------------------------------------
Business Address
New York, New York
-------------------------------------------------------
10154
-------------------------------------------------------
City. State and Zip Code
(212) 754-5560
-------------------------------------------------------
Telephone
(212) 935-1370
-------------------------------------------------------
Facsimile Number
applied for
-------------------------------------------------------
Tax Identification Number
Dated: _________________, 199_
This Subscription Agreement is agreed to and
accepted as of ________ __, 1995
BlackRock Asset Investors
By: ____________________________________________
Name: Wesley R. Edens
Title: Chief Operating Officer
BlackRock Financial Management L.P.
By: ____________________________________________
Name: Ralph L. Schlosstein
Title: President
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EXHIBIT A
CERTIFICATE OF TRUST INVESTOR
CERTIFICATE OF BlackRock Fund Investors III (the "Fund")
----------------------------------------------------------------
(Name of Trust or Custodial Relationship)
The undersigned, an officer of the Fund, hereby certifies as follows:
1. That the Fund was established pursuant to a Declaration of
Trust dated ________ __, 1995 (the "Agreement").
2. That as of the date hereof, the Agreement has not been revoked
and is still in full force and effect.
3. That Laurence D. Fink, Ralph L. Schlosstein, Wesley R. Edens,
Henry Gabbay and Susan L. Wagner is each authorized to execute, on behalf of
the Fund, any and all documents in connection with the Fund's investment in the
Trust.
IN WITNESS WHEREOF, I have executed this certificate as an officer of
the Fund authorized to execute this certificate this __ day of
_________________, 199_, and declared that it is truthful and correct.
BlackRock Fund Investors III
____________________________________________
(Name of Trust or Custodial Relationship)
By:____________________________________________
Name: Wesley R. Edens
Title: Chief Operating Officer
14
