The Advisor (as defined below) confirms that it is directing Alto Solutions, Inc. d/b/a AltoIRA (the Administrator) to complete the transaction according to the data and documents presented to the Advisor through the Administrator’s web-based application. As used in this Direction of Investment, “Advisor” means an individual, investment advisor, financial advisor, or registered representative of a firm with authority over the individual retirement account (Account) as set forth more fully in an Advisor Appointment Agreement entered into by the Advisor, account holder of the Account, Administrator, and Custodian (as defined below). The Advisor agrees that it is directing the investment on behalf of the account holder’s Account, and the Advisor takes complete responsibility for any investment it directs for the Account, including the investment specified in this Direction of Investment. The Advisor agrees that neither the Administrator nor Alto Trust Co. (the Custodian) sells or endorses any investment products or assumes any responsibility or liability for the acts or omissions of any provider or issuer of any investment or other third-party Entity.
The Advisor agrees that, in directing this investment, the Advisor shall be bound by the terms governing the Account and any other terms the Advisor has agreed to in the course of exercising its authority over the Account, including but not limited to the Advisor Appointment Agreement, the Custodial Account Agreement, the applicable Form 5305, and the Terms of Service.
The Advisor acknowledges that the Account will be bound by this Direction of Investment. The Advisor further acknowledges that it has discussed the investment with the account holder and has determined that the investment is suitable for the account holder and the Account.
The Advisor agrees that the roles of the Administrator and the Custodian are limited, and their responsibilities do not include investment advice or investment selection for the Account. The Advisor agrees that neither the Administrator nor the Custodian has provided or assumed responsibility for any tax, legal or financial advice with respect to this investment, and the Advisor agrees that they will not be liable for any loss which results from the Advisor’s decision to direct the purchase of the investment. The Advisor agrees that neither the Administrator nor the Custodian has reviewed or will review the merits, legitimacy, appropriateness or suitability of this investment, and the Advisor certifies that it has done its own due diligence investigation prior to instructing the Administrator to make this investment for the Account.
The Advisor agrees that neither the Administrator nor the Custodian determines whether this investment is acceptable under the Employee Retirement Income Securities Act (ERISA), the Internal Revenue Code (IRC), or any applicable federal, state, or local laws, including securities laws. The Advisor agrees that it is the Advisor’s responsibility to review any investments to ensure compliance with these requirements. The Advisor agrees that in processing this transaction the Administrator and the Custodian are only acting as agent in carrying out the direction of the Advisor, and nothing will be construed as conferring fiduciary status on either the Administrator or the Custodian.
The Advisor agrees that the Administrator and the Custodian will not be liable for any investment losses sustained by the account holder or the Account as a result of this transaction. The Advisor agrees to indemnify and hold harmless the Administrator and the Custodian and their respective officers, directors, shareholders and employees, agents, and assigns, from any and all claims, actions, proceedings, damages, judgments, liabilities, costs and expenses (including reasonable attorneys’ fees) and any loss to the Account as a result of any action the Advisor has taken or failed to take in connection with this investment transaction, including, without limitation, claims, actions, proceedings, damages, judgments, liabilities, costs and expenses (including reasonable attorneys’ fees) asserted by the Advisor or the account holder.
The Advisor agrees that if this Direction of Investment and any accompanying documentation are not received as required, or, if received, are unclear in the opinion of the Administrator, or if there is insufficient undirected cash in the Account to fully comply with the Advisor’s instructions to purchase the investment and to pay all fees, the Administrator may not process this transaction until proper documentation and/or clarification is received, and the Administrator and Custodian will have no liability for loss of income or appreciation. The Advisor agrees that all communications regarding this transaction must be in writing or entered electronically in a form approved by the Administrator and that no oral modification of the Advisor’s instructions will be valid.
The Advisor agrees that should the Advisor make multiple investment transaction requests from the Account within the same business day, these requests will be honored on a “First In First Out” (FIFO) basis with regard to the available cash balance held in the Account. The Advisor agrees that neither the Administrator nor the Custodian will be liable for any investment that cannot be made based upon an insufficient cash balance held in the Account , or as a result of any investment transaction request being honored on a FIFO basis.
The Advisor agrees that the Account is subject to the provisions of Internal Revenue Code (IRC) §4975, which defines certain prohibited transactions. The Advisor agrees that it is the Advisor’s sole responsibility to review investments and to determine whether they are prohibited under §4975 or under any other federal, state or local law. The Advisor agrees to seek, or cause the account holder to seek, the counsel of licensed attorneys, CPAs, and other professionals as to the legal, tax and financial ramifications of this investment. The Advisor certifies that making this investment will not constitute a prohibited transaction and that it complies with all applicable federal, state, and local laws, regulations and requirements.
The Advisor agrees that neither the Administrator nor the Custodian reviews or approves the subscription agreement, purchase agreement, operating agreement, by-laws, limited or general partnership agreement, trust agreement or any other similar agreement regarding the purchase or operation of the entity the Advisor is instructing the Administrator to invest in for the Account via this Direction of Investment (the “Entity”). The Advisor agrees that it is solely responsible for making sure that the Entity was not formed and will not operate in a way that does or may lead to a prohibited transaction under IRC §4975. Without limiting the generality of the foregoing, the Advisor agrees that if the Entity becomes a “disqualified person” (as that term is defined in IRC §4975) upon funding, then any future mandatory capital calls may be considered a prohibited transaction under IRC §4975.
The Advisor agrees that it is responsible for confirming that no “disqualified person” with respect to the Account will benefit from this investment in any way which is prohibited by IRC §4975. The Advisor represents that it has done its own due diligence on the Entity. The Advisor agrees that neither the Administrator nor the Custodian makes any attempt to evaluate the Entity or the individuals involved with the Entity. The Advisor agrees that it is solely responsible for evaluating the Entity, its operations and its investment potential.
The Advisor agrees that the investment in the Entity may be subject to the Plan Asset Regulations (29 C.F.R. § 2510.3-101) and Interpretive Bulletin 75-2 (29 C.F.R. § 2509.75-2) issued by the U.S. Department of Labor. If these regulations apply to this investment, the Entity is disregarded for purposes of the prohibited transaction rules of IRC §4975, and officers, directors, managers and the like may become fiduciaries of the Account. The Advisor represents that it acknowledges the Plan Asset Regulations and Interpretive Bulletin 75-2 or that it has consulted with competent legal counsel regarding these regulations and their potential application to the Entity prior to making this investment decision. The Advisor agrees that no person at the office of the Administrator or the Custodian has the authority to modify any of the foregoing provisions.
The Advisor agrees that the Account is subject to the provisions of IRC §§511-514 relating to Unrelated Business Taxable Income (UBTI) of tax-exempt organizations. If this investment generates UBTI, the Advisor agrees that the account holder will be responsible for preparing or having prepared the required IRS Form 990-T tax return and any other documents that may be required. The Advisor agrees that neither the Administrator nor the Custodian makes any determination of whether or not investments in the Account generate UBTI.
The Advisor agrees that the assets in the Account shall be valued annually as of the end of each calendar year. The Advisor agrees to provide, or to cause the account holder to provide, the prior year end value of this investment by no later than January 15th of each year in writing or other form provided by the Administrator, with substantiation to support the value provided. The Advisor agrees that the Administrator and the Custodian do not conduct appraisals and do not seek to verify values provided to them by the Advisor, the account holder, or any third party on the account holder’s IRA’s behalf.
The Advisor acknowledges that with some types of accounts there are rules for Required Minimum Distributions (RMDs) from the account. If the account holder is now subject to the RMD rules, or if the account holder will become subject to those rules during the term of this investment, the Advisor represents that it has verified either that the investment will provide income or distributions sufficient to cover each RMD, or that there are other assets in the Account or in other accounts that are sufficiently liquid (including cash) from which the account holder will be able to withdraw the RMDs. The Advisor understands that failure to take RMDs may result in a tax penalty of 50% of the amount that should have been withdrawn.
The Advisor agrees to indemnify and hold harmless the Administrator and the Custodian and their respective officers, directors, shareholders, employees, agents, and assigns, from and against any and all liabilities, losses, costs and expenses arising from or relating to the performance of their services with respect to this investment or the Account, including but not limited to any liability for taxes, penalties or other amounts because the investment (a) is or may be offered or conducted by any provider or Entity in violation of applicable law, (b) is or becomes a prohibited transaction under IRC §4975, (c) generates UBTI, or (d) results in a distribution of any value.
The Advisor certifies that it has examined this Direction of Investment and any accompanying documents or information, and to the best of the Advisor’s knowledge and belief, it is all true, correct and complete.
