EXHIBIT B
SUBSCRIPTION AGREEMENT AND POWER OF ATTORNEY
Xxxxx Mortgage Investment Fund, A California Limited Partnership
1. SUBSCRIPTION. The undersigned investor ("Investor") hereby applies
to become a Limited Partner in Xxxxx Mortgage Investment Fund, a California
Limited Partnership (the "Partnership"), and agrees to purchase the number of
units of limited partnership interest in the Partnership (the "Units") stated
below in accordance with the terms and conditions of the Amended and Restated
Limited Partnership Agreement (the "Limited Partnership Agreement"), a copy of
which is contained in the Prospectus of the Partnership, and tenders the amount
required to purchase the Units ($1.00 per Unit, 2,000 Unit minimum purchase,
2,500 for residents of North Carolina). The Units which the Investor offers to
purchase hereby shall not be deemed issued to, or owned by, the Investor until:
(a) the Investor has fully paid in cash for such Units, and (b) the General
Partner has in its sole discretion accepted Investor's offer of purchase. A sale
of Partnership Units to an Investor may not be completed until at least five
business days after the date the Investor receives a Prospectus. The General
Partner will send each Investor a confirmation of purchase within five business
days of acceptance of the Subscription Agreement.
2. REPRESENTATIONS BY THE UNDERSIGNED. The Investor represents and
warrants that the Investor:
(a) has received the Prospectus of the Partnership dated April
28, 2000;
(b) understands that no federal or state agency has made any
finding or determination as to the fairness for public investment in, nor any
recommendation nor endorsement of, the Units;
(c) understands that Units are offered for a minimum
investment of $2,000 ($2,500 for residents of North Carolina);
(d) understands that there will be no public market for the
Units, that there are substantial restrictions on repurchase, sale, assignment
or transfer of the Units, and that it may not be possible readily to liquidate
this investment;
(e) has (i) a minimum net worth (exclusive of home, home
furnishings, and automobiles) of $45,000 ($30,000 in the States of California
and Oregon and $50,000 in the State of Washington), plus an annual gross income
of at least $45,000 ($30,000 in the States of California and Oregon and $50,000
in the State of Washington); or (ii) minimum net worth (exclusive of home, home
furnishings, and automobiles) of $150,000 ($75,000 in the States of California
and Oregon); or (iii) if purchasing for a fiduciary account, the minimum
standards in (i) or (ii) above are met by the beneficiary, the fiduciary
account, or by a donor or grantor who directly or indirectly supplies the funds
to purchase the Partnership Units if the donor or grantor is the fiduciary;
(f) if an individual, has attained the age of majority (as
established in the state in which domiciled), and, in any event, is under no
disability with respect to entering into a contractual relationship with the
Partnership;
(g) if a trustee, is the trustee for the trust on behalf of
which it is purchasing the Units, and has due authority to purchase Units on
behalf of the trust;
(h) fully indemnifies and holds harmless the Partnership, the
General Partner, and its Affiliates from any and all claims, actions, causes of
action, damages, and expenses (including legal fees and expenses) whatsoever
which may result from a breach or alleged breach of any of the representations
by Investor contained herein.
3. ADOPTION OF AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT. The
Investor hereby adopts, accepts, and agrees to be bound by all terms and
provisions of the Limited Partnership Agreement and to perform all obligations
therein imposed upon a Limited Partner with respect to Units to be purchased.
Upon acceptance of this Subscription Agreement by the General Partner on behalf
of the Partnership, payment in full of the subscription price and the filing of
a Certificate of Limited Partnership of the Partnership, the undersigned shall
become a Limited Partner for all purposes of the Limited Partnership Agreement.
4. LIMITATION ON ASSIGNMENT. The Investor acknowledges that the Units
may be assigned only as provided in the Limited Partnership Agreement and
further acknowledges the restrictions on resale, transfer, or assignment of the
Units set forth in the Limited Partnership Agreement and as described in the
Prospectus.
5. SPECIAL POWER OF ATTORNEY. The Investor hereby makes, constitutes,
and appoints the General Partner of the Partnership to be such person's true and
lawful attorney-in-fact to sign and acknowledge, file and record:
(a) the Limited Partnership Agreement and any amended
certificate of limited partnership, as well as any and all amendments thereto
required under the laws of the State of California or of any other state to be
filed or which the General Partner deems advisable to prepare, execute and file;
(b) any other instrument or document which may be required to
be filed by the Partnership by any governmental agency or by the laws of any
state, or which the General Partner deems it advisable to file; and
(c) any documents which may be required to effect the
continuation of the Partnership, the admission of a substituted Limited Partner,
or the dissolution and termination of the Partnership, provided such
continuation, admission, or dissolution and termination are in accordance with
the terms of the Limited Partnership Agreement.
The foregoing grant of authority:
(i) is a Special Power of Attorney coupled with an
interest, is irrevocable, shall survive the death of the Investor and shall not
be affected by the subsequent incapacity of the Investor;
(ii) may be exercised by the General Partner for each
Limited Partner by a facsimile signature of or on behalf of the General Partner
or by listing all of the Limited Partners and by executing any instrument with a
single signature of or on behalf of the General Partner, acting as
attorney-in-fact for all of them; and
(iii) shall survive the delivery of an assignment by
a Limited Partner of the whole or any portion of his interest; except that where
the assignee thereof has been approved by the General Partner for admission to
the Partnership as a substituted Limited Partner, the Special Power of Attorney
shall survive the delivery of such assignment for the sole purpose of enabling
such person to execute, acknowledge, and file any instrument necessary to effect
such substitution.
6. PAYMENT OF SUBSCRIPTION. The amount of the Investor's subscription
is set forth below and payment of such amount is enclosed by a check payable to
Xxxxx Mortgage Investment Fund, a California Limited Partnership. The Investor
hereby authorizes and directs the General Partner to deliver this Subscription
Agreement to the Partnership and pay the funds delivered herewith to the
Partnership, to the extent the Investor's subscription has been accepted. If the
Investor's subscription is rejected in part, the funds delivered herewith will,
to the extent the application is so rejected, be returned to the Investor as
soon as practicable without interest or deduction, except to the extent of any
interest actually earned.
7. PURCHASE BY FIDUCIARY. If the Investor is purchasing the Units
subscribed hereby in a fiduciary capacity, the above representations and
warranties are to be deemed to have been made on behalf of the person(s) for
whom the Investor is so purchasing except that such person(s) need not be over
18 years of age.
8. NOTIFICATION OF GENERAL PARTNER. The Investor agrees to notify the
General Partner immediately if any of the foregoing statements made herein shall
become untrue.
9. LIMITED PARTNERSHIP AGREEMENT GOVERNS. In the event of any conflict
between the provisions of the Limited Partnership Agreement and any instrument
or document executed, acknowledged, filed or recorded by the General Partner
pursuant to this special power of attorney, the Limited Partnership Agreement
will govern.
10. SUBSCRIPTION AMOUNT. The Investor subscribes $_____________ and
encloses such sum herewith as the purchase price of _____________ Units.
11. REINVESTMENT OF DISTRIBUTIONS. The Partnership maintains a
Distribution Reinvestment Plan ("Plan") under which distributions of income of
the Partnership may be reinvested for the purchase of additional Units, rather
than being received in cash. See Prospectus at page 63. So long as the Investor
meets the suitability standards established by the Partnership and by the
securities law administrator of the state in which the Investor is domiciled,
and subject to possible suspension or termination of the Plan by the General
Partner, as set forth in the Limited Partnership Agreement, the Investor will
continue to participate in the Plan if it elects option A, below. Option B,
below, will constitute an election not to participate in the Plan. The Investor
may change his election at any time by written notice to the Partnership. Please
choose one or the other of the two options by a check xxxx in the appropriate
blank. If you check neither blank, you will be considered to have elected to
receive your distributions in cash (Option B).
A. ___ Investor elects to participate in the Partnership
Distribution Reinvestment Plan.
B. ___Investor elects not to participate in the Partnership
Distribution Reinvestment Plan and to receive distributions
in cash.
12. OWNERSHIP OF UNITS. The Investor's interest will be owned and
should be shown on the Partnership's records as follows:
Check one: ___ Individual Ownership
___ JTROS (all parties must sign)
___ Tenants in Common (all parties must sign)
___ Community Property (one signature required)
___ Custodian
___ Trustee
___ Corporation
___ Partnership
___ Nonprofit Organization
(Please Print)
Name______________________________________________________________________
First Middle Last
or Entity's legal name
__________________________________________________________________________
Resident Address
__________________________________________________________________________
City State Zip Code
______________________________________ _________________________________
Home Telephone Number (if applicable) Business Telephone Number
(include area code) (include area code)
Date of Birth __________________________________ (Individual Investors Only)
Occupation _____________________________________ (Individual Investors Only)
Marital Status (check one): Single____ Married____ (Individual Investors Only)
Citizenship: U.S.____ Other_____________________ (Individual Investors Only)
Investment Objective:
Current income with retention of capital ____ (check)
Other (please explain):
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Investor's Financial Status and Suitability:
Net Worth $_____________________
Liquid Net Worth $_____________________
Gross Income $_____________________
Investor's Years of Investment Experience _____
Investor's Tax Bracket (if individual) ________%
Please initial here to acknowledge your understanding that it may not be
possible to readily liquidate your investment in the Partnership: _______
Please initial here to acknowledge your understanding that if you move to a
state in which the Partnership is not registered, you may not be able to
purchase additional Units or receive new Units through your participation in the
Dividend Reinvestment Plan: _______
*******************************************************************************
(Please Print)
Name______________________________________________________________________
First Middle Last
or Entity's legal name
__________________________________________________________________________
Resident Address
__________________________________________________________________________
City State Zip Code
____________________________________________________________________________
Home Telephone Number (if applicable) Business Telephone Number
(include area code) (include area code)
Date of Birth __________________________________ (Individual Investors Only)
Occupation _____________________________________ (Individual Investors Only)
Marital Status (check one):Single____ Married____ (Individual Investors Only)
Citizenship: U.S.____ Other______________________ (Individual Investors Only)
Investment Objective:
Current income with retention of capital ____ (check)
Other (please explain):
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Investor's Financial Status and Suitability:
Net Worth $_____________________
Liquid Net Worth $_____________________
Gross Income $_____________________
Investor's Years of Investment Experience _____
Investor's Tax Bracket (if individual) ________%
Please initial here to acknowledge your understanding that it may not be
possible to readily liquidate your investment in the Partnership: _______
Please initial here to acknowledge your understanding that if you move to a
state in which the Partnership is not registered, you may not be able to
purchase additional Units or receive new Units through your participation in the
Dividend Reinvestment Plan: _______
******************************************************************************
13. IF APPLICABLE, THE ACCOUNT REPRESENTATIVE AND INVESTMENT FIRM
PRINCIPAL MUST EACH SIGN BELOW IN ORDER TO SUBSTANTIATE COMPLIANCE WITH APPENDIX
F TO ARTICLE 3, SECTION 34 OF THE NASD'S RULES OF FAIR PRACTICE.
IN WITNESS WHEREOF, the undersigned Investor has executed this
Subscription Agreement and Power of Attorney.
Dated: _____________, 20___
____________________________________ _______________________________________
Authorized Signature of Subscriber Social Security Number or Federal Tax
Identification Number
____________________________________ _______________________________________
Authorized Signature of Subscriber Social Security Number or Federal Tax
(if more than one) Identification Number
ACCEPTED:
Xxxxx Mortgage Investment Fund,
A California Limited Partnership
Xxxxx Financial Group, Inc., General Partner
By: ____________________________________
Xxxxxxx X. Xxxxx, President
Dated: ____________, ____
The Account Representative and Principal signing below each have
reasonable grounds to believe, based on information obtained from the above
Investor concerning his or her investment objectives, other investments,
financial situation and needs and any other information known by either of them,
that investment in the Partnership is suitable for such Investor in light of his
or her financial position, net worth and other suitability characteristics, and
that the Investor meets the suitability requirements applicable to this
offering.
The undersigned account representative and principal have advised the
above Investor that no market for the securities being offered exists nor is one
expected to develop, and that the Investor may not be able to liquidate his or
her investment in the event of an emergency or for any other reason.
_______________________________ _____________________________________
Signature of Investment Firm Principal Signature of Account Representative
Xxxxx Securities Corporation
_______________________________ _____________________________________
Please PRINT Name and Title Please PRINT Account Representative Name
