Exhibit (l)
THE DRAKE U.S. BOND FUND, LLC
SUBSCRIPTION AGREEMENT
PLEASE READ CAREFULLY BEFORE SIGNING
ALL SUBSCRIPTIONS ARE SUBJECT TO ACCEPTANCE BY DRAKE CAPITAL MANAGEMENT, LLC,
THE MANAGING MEMBER. ALL INFORMATION REQUIRED TO BE PROVIDED HEREIN BY
SUBSCRIBERS FOR DETERMINING PURCHASER QUALIFICATION WILL BE KEPT STRICTLY
CONFIDENTIAL.
To: The Drake U.S. Bond Fund, LLC
c/o Drake Capital Management, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
1. SUBSCRIPTION FOR INTERESTS IN THE FUND. The undersigned subscriber
(the "Subscriber") hereby irrevocably subscribes for $20,000,000 of limited
liability company interests ("Interests") in The Drake U.S. Bond Fund, LLC, a
Delaware limited liability company (the "Fund"). The minimum investment, unless
otherwise permitted by Drake Capital Management, LLC, the Managing Member of the
Fund (the "Managing Member"), is $5,000,000 ($100,000 for additional
investments). Payment in full for Interests will be transmitted by wire transfer
of immediately available funds at least two (2) business days before the first
business day of the month in which the subscription is to be effective.
2. ACCEPTANCE OF THE LLC OPERATING AGREEMENT. The Subscriber agrees
that, upon the acceptance of this Subscription Agreement by the Managing Member,
the Subscriber shall become an investing member in the Fund. Accordingly, by
execution hereof the Subscriber agrees to be bound by all of the terms and
conditions of the Fund's Limited Liability Operating Agreement, dated as of June
7, 2004 (the "LLC Operating Agreement"), as amended from time to time, a copy of
the form of which previously has been delivered to the undersigned, as if the
Subscriber's signature were subscribed to the LLC Operating Agreement. Moreover,
the Subscriber agrees to be bound by the terms and conditions of all
modifications or amendments to the LLC Operating Agreement in accordance with
the terms thereof. The Subscriber hereby authorizes the Managing Member as the
Subscriber's attorney-in-fact to subscribe the Subscriber's name to the LLC
Operating Agreement or any modification or amendment thereto pursuant to the
Power of Attorney set forth herein. It is understood, however, that this
subscription is not binding on the Fund until the Managing Member accepts it,
which acceptance is in the Managing Member's sole discretion.
3. FEES AND EXPENSES. The Subscriber agrees that the fees charged with
respect to the Subscriber's capital account shall be as set forth in the LLC
Operating Agreement.
4. REPRESENTATIONS AND WARRANTIES. To induce the Managing Member to
accept this Subscription Agreement on behalf of the Fund, the Subscriber hereby
represents, warrants and covenants to the Managing Member and the Fund as
follows:
a. The Subscriber acknowledges that the Subscriber has been
furnished with an Executive Summary, dated as of June 7, 2004, (the
"Executive Summary") which sets forth the
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relevant terms and conditions of this investment, the LLC Operating
Agreement, and such other documents, materials and information as the
Subscriber deems necessary or appropriate for evaluating an investment
in the Fund. The Subscriber confirms that the Subscriber carefully has
read and understands these materials and has made such further
investigation of the Managing Member and the Fund as was deemed
appropriate to obtain additional information to verify the accuracy of
such materials and to evaluate the merits and risks of this investment.
The Subscriber acknowledges that the Subscriber has had the opportunity
to ask questions of, and receive answers from, the Managing Member and
persons acting on its and the Fund's behalf, concerning the terms and
conditions of the offering and the information contained in the
offering materials, and all such questions have been answered to the
Subscriber's full satisfaction.
b. The Subscriber has had an opportunity to review and, in
fact, meets the suitability standards required for this investment, as
set forth in the Executive Summary.
c. The Subscriber understands that the Interests have not been
registered under the Securities Act of 1933, as amended (the "1933
Act") or the securities or similar laws of any state, and are offered
in reliance on exemptions therefrom.
d. The Subscriber understands that neither the Securities and
Exchange Commission nor any other Federal or state agency has
recommended, approved or endorsed the purchase of the Interests as an
investment or passed on the accuracy or adequacy of the information set
forth in the Executive Summary or any other Fund documents.
e. The Subscriber is in a financial position to afford to hold
the Interests indefinitely, the Subscriber's financial condition being
such that the Subscriber is not presently under (and does not
contemplate any future) necessity or constraint to dispose of such
Interests, other than through redemption to the extent permitted under
the terms of the LLC Operating Agreement, to satisfy any existing or
contemplated debt or undertaking.
f. The Subscriber recognizes that the Fund is a highly
speculative venture involving a high degree of financial risk and can
bear the economic risk of losing the Subscriber's entire investment in
Interests. The Subscriber's overall commitment to investments which are
not readily marketable is not disproportionate to the Subscriber's net
worth and investment in the Interests will not cause the Subscriber's
overall commitment to become excessive. The Subscriber is familiar with
the nature of, and risks attendant to, investments in securities of the
type being subscribed for and has determined that the purchase of such
securities is consistent with the Subscriber's investment objectives.
g. The Subscriber has the requisite knowledge and experience
in financial and business matters to be capable of evaluating the
merits and risks of this investment and to be capable of protecting the
Subscriber's interests in connection with this transaction.
h. The Subscriber confirms that the Subscriber is acquiring
the Interests subscribed for herein solely for the Subscriber's own
account, for investment, and not with a view to the distribution or
resale of such Interests.
i. The Subscriber understands that: there are substantial
restrictions on the transferability of the Interests; Subscribers in
the Fund have no rights to require the Interests to be registered under
the 1933 Act or the securities laws of any state; there will be no
public market for the Interests; and it may not be possible for the
Subscriber to liquidate the Subscriber's investment in the Fund and
accordingly, the Subscriber may have to hold the Interests, and bear
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the economic risk of this investment indefinitely, subject to the
rights of redemption described in the Executive Summary and the LLC
Operating Agreement.
j. If the Subscriber is an individual, the Subscriber has the
legal capacity and authority to execute, deliver, and perform the
Subscriber's obligations under this Subscription Agreement. If the
Subscriber is a corporation, partnership, limited liability company,
trust, or other entity, the person executing this Subscription
Agreement has the full power and authority to execute and deliver this
Subscription Agreement on behalf of the subscribing entity, and such
entity is duly formed and organized, validly existing, and in good
standing under the laws of its jurisdiction of formation, and such
entity is authorized by its governing documents to execute, deliver,
and perform its obligations under this Subscription Agreement and to
become a member of the Fund. Furthermore, such investment is in
accordance with all laws applicable to the Subscriber's operations.
k. The undersigned is an "accredited investor" as that term is
defined in Rule 501 of Regulation D promulgated under the Securities
Act and, if the Subscriber is a natural person, the Subscriber is
either a "qualified purchaser" as that term is defined in Section
2(a)(51) of the Investment Company Act of 1940, as amended (the "1940
Act") and the regulations promulgated thereunder, or is otherwise a
"qualified eligible person" as that term is defined in Regulation
4.7(a)(2) under the Commodity Exchange Act, as amended (the "CEA").
l. If the Subscriber is an entity, it has not been organized
for the specific purpose of acquiring the Interests or if it has been
organized for the specific purpose of acquiring Interests, each of its
beneficial owners is separately accredited as defined in Rule 501(a) of
Regulation D under the 1933 Act.
m. The Subscriber has furnished to the Managing Member, to the
best of the Subscriber's knowledge and ability, any and all relevant
information to assist the Managing Member in limiting the number of
Subscribers to no more than one hundred (100) beneficial owners within
the meaning of 1940 Act.
n. If the Subscriber is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), in making the
proposed investment the Subscriber is aware of and has taken into
consideration the applicable fiduciary standards of conduct under
ERISA, including, but not limited to the prudence and diversification
requirements of Section 404(a)(1) of ERISA, and has considered the
impact of the illiquid nature of an investment in the Fund on the
plan's liquidation requirements.
o. Under penalties of perjury, the Subscriber represents,
warrants and certifies that (i) the Subscriber is a United States
Person as defined in Section 7701(a)(30) of the Internal Revenue Code
of 1986, as amended, and that the Subscriber will notify the Fund
within sixty (60) days of a change to such status, unless the
Subscriber has indicated that it is a foreign person in QUESTION 3 OF
PART III of the Questionnaire to Prospective Subscribers attached
hereto as SCHEDULE 1 (the "Suitability Questionnaire"), (ii) the
Subscriber has provided the Subscriber's correct tax identification
number below, (iii) the Subscriber is not subject to backup withholding
because (A) the Subscriber is exempt from backup withholding, (B)
Subscriber has not been notified by the Internal Revenue Service
("IRS") that Subscriber is subject to backup withholding as a result of
a failure to report all interest or dividends, or (C) the IRS has
notified the Subscriber that Subscriber is no longer subject to backup
withholding.
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p. The Subscriber confirms that Interests were not offered to
the Subscriber by any means of general solicitation or general
advertising, that the Subscriber has received no representations,
warranties or written communications with respect to the offering of
Interests other than those contained in the Executive Summary and in
entering into this transaction the Subscriber is not relying upon any
information other than that contained in the Executive Summary, the LLC
Operating Agreement and the results of the Subscriber's own independent
investigation.
q. The Subscriber acknowledges that the Subscriber has been
advised to consult with the Subscriber's own attorney regarding legal
matters concerning the Fund and to consult with the Subscriber's tax
advisor regarding the tax consequences of participating in the Fund.
r. The Subscriber has not entered and will not enter into a
swap, structured note or other derivative instrument with a third
party, the return from which is based in whole or in part on the return
of the Fund, or any subsidiary fund in which the underlying assets of
the Interests for which the Subscriber is subscribing are invested
("Subsidiary Fund").
s. The Subscriber has not entered and will not enter into a
variable annuity or insurance policy with a third party, the value of
which is based in whole or in part on the return of the Fund or the
Subsidiary Fund.
5. ANTI-MONEY LAUNDERING COMPLIANCE, REPRESENTATIONS AND WARRANTIES. It
is the policy of the Managing Member and the Fund to comply with all anti-money
laundering laws and regulations to which the Managing Member or the Fund is or
becomes subject in order to prevent, detect and deter money laundering and
terrorist financing activities and other similar illegal activities.
Accordingly, the Subscriber hereby agrees to the following terms set forth in
this SECTION 5.
a. The Subscriber represents and warrants that acceptance by
the Managing Member of this Subscription Agreement, together with the
acceptance of the appropriate remittance, will not breach any
applicable rules and regulations designed to avoid money laundering.
Specifically, the Subscriber represents and warrants that all evidence
of identity provided is genuine and all related information furnished
is accurate.
b. The Subscriber represents and warrants that (check one as
applicable):
/x/ A. The Subscriber is subscribing for
Interests in the Fund for its own account,
risk and beneficial interest; the Subscriber
is not acting as agent, representative,
intermediary/nominee, derivatives
counterparty or in any similar capacity for
any other person; no other person will have
a beneficial or economic interest in the
Interests; and the Subscriber does not have
any intention or obligation to sell,
distribute, assign or transfer all or a
portion of the Interests to any other
person.
/ / B. The Subscriber is an intermediary which
may include, without limitation, an
introducing firm, placement agent, asset
aggregator, nominee, fund of funds,
custodian, administrator, representative or
derivatives counterparty (each, an
"Intermediary") investing in its own name on
behalf of one or more Subscribers
("Underlying Subscribers"); the Subscriber
is subscribing for Interests in the Fund as
a record owner in its capacity as an
Intermediary on behalf of one or more
Underlying Subscribers; and agrees that the
representations, warranties and
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covenants made in the Subscription Agreement
are made by it on behalf of itself and the
Underlying Subscribers. If the Subscriber is
subscribing for Interests as an
Intermediary, in addition to the terms set
forth in this Section, it will be required
to agree to certain additional terms set
forth beginning on PAGE B-13.
c. The Subscriber represents and warrants that: (i) it is not
a Senior Foreign Political Figure,(1) any member of the Immediate
Family of Senior Foreign Political Figure,(2) or any Close Associate of
a Senior Foreign Political Figure(3); (ii) it is not resident in, or
organized or chartered under the laws of, a jurisdiction that has been
designated by the Secretary of the Treasury under Section 311 or 312 of
the USA PATRIOT Act(4) as warranting special measures due to money
laundering concerns; and (iii) its funds do not originate from, nor
will they be routed through, an account maintained at a Foreign Shell
Bank,(5) an "offshore bank," or a bank organized or chartered under the
laws of a Non-Cooperative Jurisdiction.(6)
d. The Subscriber acknowledges and agrees that the Fund
prohibits any investment, directly or indirectly, by or on behalf of
the following persons or entities (each, a "Prohibited Subscriber"):
(i) a person or entity whose name appears on the List of Specially
Designated Nationals and Blocked Persons maintained by the U.S. Office
of Foreign Assets Control ("OFAC"), which is found at
xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/xxxxx.xxxx; (ii) a Foreign
Shell Bank; (iii) a person or entity resident in or whose subscription
funds are transferred from or through an account in a Non-Cooperative
Jurisdiction, (iv) a person or entity whose name
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1 "Senior Foreign Political Figure" means a senior official in the
executive, legislative, administrative, military or judicial branches
of a foreign government (whether elected or not), a senior official of
a major foreign political party, or a senior executive of a foreign
government-owned corporation. In addition, a Senior Foreign Political
Figure includes any corporation, business or other entity that has been
formed by, or for the benefit of, a Senior Foreign Political Figure.
2 The "Immediate Family of a Senior Foreign Political Figure" typically
includes a Senior Foreign Political Figure's parents, siblings, spouse,
children and in-laws.
3 A "Close Associate of a Senior Foreign Political Figure" is a person
who is widely and publicly known internationally to maintain an
unusually close relationship with a Senior Foreign Political Figure,
and includes a person who is in a position to conduct substantial
domestic and international financial transactions on behalf of the
Senior Foreign Political Figure.
4 "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. 107-56). The
jurisdictions warranting special measures include, but are not limited
to, those found at xxx.xxxxxxx.xxx/xxxxxx/xxx_xxxx.xxxx.
5 "Foreign Shell Bank" means a Foreign Bank without a Physical Presence
in any country, but does not include a Regulated Affiliate. "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. "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 relating 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.
6 "Non-Cooperative Jurisdiction" means any foreign country that has been
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 on Money Laundering ("FATF"),
of which the United States is a member and with which designation the
United States representative to the group or organization continues to
concur. The FATF list of Non-Cooperative Jurisdictions is found at
xxx.xxxx-xxxx.xxx/xxxx_xx.xxx.
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appears on any other list of prohibited persons and entities as may be
mandated by applicable law or regulation; or (v) a person or entity
whose name appears on any other list of prohibited persons and entities
as may be provided to the Subscriber by the Managing Member. The
Subscriber represents, warrants and covenants that neither the
Subscriber, nor any person controlling, controlled by, or under common
control with the Subscriber, nor any person having a beneficial
interest in the Subscriber, is a Prohibited Subscriber, and that the
Subscriber is not investing and will not invest in the Fund on behalf
of or for the benefit of any Prohibited Subscriber. The Subscriber
agrees to promptly notify the Fund and the Managing Member of any
change in information affecting this representation, warranty and
covenant. The Subscriber acknowledges that if, following its investment
in the Fund, the Managing Member reasonably believes that the
Subscriber is a Prohibited Subscriber, or has otherwise breached any
material representation, warranty or covenant hereunder, the Managing
Member may be obligated to freeze its investment, either by prohibiting
additional investments, declining any redemption requests and/or
segregating the assets constituting the investment in accordance with
applicable regulations, or its investment may immediately be redeemed,
and it shall have no claim against the Fund, the Managing Member or
their respective principals or affiliates for any form of damages or
liabilities as a result of any of the aforementioned actions.
e. The Subscriber acknowledges and agrees that any redemption
proceeds paid to it will be paid to the same account from which its
investment in the Fund was originally remitted, unless the Managing
Member, in its sole discretion, agrees otherwise.
f. The Subscriber acknowledges and agrees that the Managing
Member may release confidential information about it and, if
applicable, any Underlying Subscriber or beneficial owner thereof, to
regulatory, self-regulatory and/or law enforcement authorities, if the
Managing Member, in its sole discretion, determines to do so.
g. The Subscriber acknowledges that due to applicable
anti-money laundering laws and regulations, the Managing Member may
require further information or representations from the Subscriber
before the Subscriber's subscription documents can be processed,
including, without limitation, further information or representations
regarding the identification of the Subscriber and the source of its
funds. The Subscriber agrees to promptly provide any information or
representations deemed necessary by the Managing Member, in its sole
discretion, to comply with its anti-money laundering program and
related responsibilities from time to time.
h. The Subscriber shall hold harmless and indemnify the
Managing Member, the Fund and their respective principals and
affiliates from and against any loss, damage, expense, liability or
reasonable attorneys' fees arising out of or related to the
Subscriber's breach of any term set forth in this Subscription
Agreement, or action or inaction by the Managing Member or the Fund,
relating to or in any way connected with anti-money laundering matters.
In the event of delay or failure by the Subscriber to produce any
information or representations required for verification purposes, the
Managing Member may, until such proper information or representations
have been provided, take such actions as it in its sole discretion
deems necessary, including, without limitation, refusing to accept the
Subscriber's subscription documents and the funds relating thereto,
refusing additional investments and/or refusing or delaying acceptance
of a request for redemption.
6. RELIANCE ON REPRESENTATIONS AND WARRANTIES; NOTIFICATION
REQUIREMENTS. The Subscriber understands the meaning of the representations and
warranties contained in this Subscription Agreement and in the Suitability
Questionnaire and understands and acknowledges that the Fund and the Managing
Member are relying upon the representations and warranties contained in this
Subscription
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Agreement and in the Suitability Questionnaire in determining whether the
offering is eligible for exemption from the registration requirements contained
in the 1933 Act, the Fund is eligible for exemption from the registration
requirements contained in the 1940 Act, the Fund is eligible for the ERISA "plan
assets" exemption, the Managing Member is eligible for exemptive relief under
the Commodity Exchange Act and in determining whether to accept the subscription
tendered hereby. The Subscriber represents and warrants that the information
contained in this Subscription Agreement and in the Suitability Questionnaire is
true and correct as of the date hereof and agrees to notify immediately the
Managing Member of any changes in such information (or, if there have been any
changes in the information provided to the Fund by the Subscriber in the
Suitability Questionnaire since the date the Suitability Questionnaire was
furnished, the Subscriber has advised the Fund in writing of such changes). The
Subscriber hereby agrees to indemnify and hold harmless the Fund, the Managing
Member, their affiliates and their respective members, managers, officers,
directors and employees and each general and limited partner thereof from and
against any and all losses, damages, expenses, liabilities or reasonable
attorneys' fees (including attorneys' fees and expenses incurred in a securities
or other action in which no judgment in favor of the Subscriber is rendered) due
to or arising out of a breach of any representation or warranty of the
Subscriber, whether contained in the LLC Operating Agreement, this Subscription
Agreement or the Suitability Questionnaire. Notwithstanding any of the
representations, warranties, acknowledgments or agreements made in this
Subscription Agreement and in the Suitability Questionnaire by the Subscriber,
the Subscriber does not thereby or in any other manner waive any rights granted
to the Subscriber under federal or state securities law.
7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. In the event that this
subscription is accepted, the Subscriber agrees that the representations,
warranties and agreements set forth in this Subscription Agreement and in the
Suitability Questionnaire shall survive the acceptance of this subscription.
8. ADDITIONAL SUBSCRIPTIONS. Subject to the terms of the LLC Operating
Agreement, Members may purchase additional Interests as of the first day of any
month (or at other times as determined by the Managing Member) subject to the
consent of the Managing Member, in its discretion. Therefore, the Subscriber
hereby represents, warrants and agrees that all of the representations and
warranties of the Subscriber set forth herein and in the Suitability
Questionnaire will be true and correct on the date any such additional purchase
of Interests is made (or, if there have been any changes in such information,
the Subscriber will have advised the Fund in writing of such changes).
9. ASSIGNABILITY. The Subscriber agrees not to transfer or assign this
Subscription Agreement, or any interest of the Subscriber therein. This
Subscription Agreement and the representations and warranties contained herein
shall be binding upon and inure to the benefit of the heirs, executors,
administrators, and other successors of the parties hereto. If there is more
than one signatory hereto, the obligations, representations, warranties, and
agreements of the Subscriber are made jointly and severally.
10. ALLOCATION OF NEW ISSUES. The National Association of Securities
Dealers, Inc. ("NASD") prohibits and restricts certain persons from profiting
from the gains on "new issues" (i.e., generally, equity securities issued in a
public offering). In order for the Fund to invest, either directly or
indirectly, in new issues, the Fund must obtain certain information regarding
each Subscriber. The Suitability Questionnaire asks a number of questions
designed to enable the Managing Member to determine whether the Subscriber would
be a "restricted person" under the NASD's rules and regulations. The Subscriber
acknowledges and agrees that, in the event that: (i) the Managing Member
determines, based upon information furnished to it by the Subscriber in the
Suitability Questionnaire or otherwise available to it, that the undersigned is
a "restricted person" under NASD rules; or (ii) the Subscriber fails or chooses
not to supply all of such information requested in the Suitability
Questionnaire, then the Subscriber shall be
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deemed to be a "restricted" Member whose capital account may not receive its pro
rata allocation of any appreciation in the Fund's assets from direct or indirect
investments in new issues.
11. FOR GEORGIA RESIDENTS ONLY. THE INTERESTS HAVE BEEN ISSUED OR SOLD
IN RELIANCE ON PARAGRAPH (13) OF CODE SECTION 10-5-9 OF THE "GEORGIA SECURITIES
ACT OF 1973" AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION WHICH IS
EXEMPT UNDER SUCH ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT.
12. APPLICABLE LAW; FORUM. This Subscription Agreement shall be
construed in accordance with the laws of the State of Delaware, without regard
to principles of conflicts of law. Any and all litigation arising out of this
Subscription Agreement shall be conducted only in courts located in the State of
New York.
13. ENTIRE AGREEMENT. This Subscription Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof, may be amended only by a writing executed by all of the parties, and
supersedes any prior agreement between the parties with respect to the subject
matter hereof.
14. CONSENT TO REPRESENTATION. The Subscriber acknowledges and agrees
that Xxxxxx Xxxxxx Xxxxx Xxxxxxxx is legal and tax counsel to the Managing
Member in connection with this offering of Interests and that such firm has in
the past, does and may from time to time in the future render services to the
Managing Member and its affiliates. The Subscriber further acknowledges and
agrees that such firm also may, in the future, render services to the Fund with
respect to activities other than the offer and sale of Interests. The Subscriber
understands that Xxxxxx Xxxxxx Xxxxx Xxxxxxxx is not representing the Subscriber
or any other prospective purchaser of Interests in connection with this
Offering.
15. POWER OF ATTORNEY. In connection with the Subscriber's subscription
for Interests, the Subscriber hereby irrevocably constitutes and appoints the
Managing Member, its principals, or any of them, with full power of
substitution, as the Subscriber's true and lawful representative and
attorney-in-fact, granting unto such attorney-in-fact full power of substitution
and with full power and authority in the Subscriber's name, place and stead to
make, execute, acknowledge, deliver, swear to, file and record in all necessary
or appropriate places: (a) the LLC Operating Agreement; (b) all other documents,
certificates or instruments that the Managing Member deems appropriate to
qualify, continue or terminate the Fund as a limited liability company in the
jurisdictions in which the Fund may conduct business; (c) all instruments that
the Managing Member deems appropriate to reflect a change or modification of the
Fund in accordance with the terms of the LLC Operating Agreement; (d) all other
certificates, documents and instruments with any jurisdiction that the Managing
Member deems appropriate to carry out the business of the Fund; (e) certificates
of assumed name; and (f) all conveyances and other instruments that the Managing
Member deems appropriate to effect the dissolution and liquidation of the Fund.
This Power of Attorney is coupled with an interest, is irrevocable, and
shall survive the death, dissolution, incompetence or incapacity of the
Subscriber or an assignment by the Subscriber of the Subscriber's Interests
except that where the assignee thereof has been admitted to the Fund as a
substituted Member, this Power of Attorney shall survive such assignment for the
sole purpose of enabling the Managing Member to execute, acknowledge and file
any certificate, instrument or document necessary or appropriate to effect such
substitution.
The Subscriber hereby agrees to be bound by all of the representations
of the attorney-in-fact and waives any and all defenses that may be available to
the Subscriber to contest, negate or disaffirm the actions of the
attorney-in-fact or its successors under this Power of Attorney, and hereby
ratifies and confirms all acts that said attorney-in-fact may take as
attorney-in-fact hereunder in all respects, as though performed by the
Subscriber.
* * * * *
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SIGNATURE PAGE FOR INDIVIDUALS AND JOINT ACCOUNTS
The undersigned hereby subscribes for $___________________________ of
Interests.
--------------------------- --------------------------- ---------------
Print Name Social Security No. Date of Birth
--------------------------- --------------------------- ---------------
Print Name Social Security No. Date of Birth
--------------------------- ---------------------------
--------------------------- ---------------------------
--------------------------- ---------------------------
Residential Address Mailing Address (if different)
( ) ( )
--------------------------- ---------------------------
Home Phone Office Phone
( )
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Facsimile E-Mail Address
Type of Ownership (Initial One) --- Individual
--- Tenants in Common (Both Parties Sign)
--- Joint Tenants with Right of Survivorship
(Both Parties Sign)
--- Community Property (Both Parties Sign)
---------------------- -------- --------------------- --------
Signature Date Signature Date
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SIGNATURE PAGE FOR ENTITIES
(OTHER THAN EMPLOYEE BENEFIT PLANS)
The undersigned entity hereby subscribes for $20,000,000 of
Interests.
Form of Organization: Partnership, Corporation, X Limited
---- ---- ----
Liability Company, Trust,
----
Other: Tax Identification Number: 00-0000000
--------------------------- ---------------
State and Approximate Date of Formation: DELAWARE 2001
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Full Name of Subscriber: XXXXX PARTNERS LLC
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Name: DRAKE PARTNERS LLC
-------------------------------------
Address:
000 XXXXXXX XXX.
-------------------------------------
00XX XXXXX
-------------------------------------
XXX XXXX, XX 00000
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Phone: (000) 000-0000
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Facsimile: (000) 000-0000
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E-Mail:
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The undersigned warrants that he/she/it has full power and authority to
execute this Subscription Agreement on behalf of the above entity, and
investment in the Fund is not prohibited by the governing documents of the
entity or by any law applicable to such entity.
Name: DRAKE PARTNERS LLC
-------------------------------------
(Entity Name)
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
(Signature)
XXXXXX X. XXXXXXXX
-------------------------------------
(Signer's Printed Name)
Date: AUGUST 2, 2004
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B-10
