DMR MORTGAGE OPPORTUNITY FUND LP SUBSCRIPTION AND CAPITAL COMMITMENT AGREEMENT LIMITED PARTNERSHIP INTERESTS Minimum Capital Commitment: $5,000,000 THESE ARE SPECULATIVE SECURITIES FOR THE USE OF U.S. INVESTORS ONLY September 22, 2008 ONLY “ELIGIBLE...
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Name Name of Subscriber: _________________
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Exhibit
99.2(d)
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DMR
MORTGAGE OPPORTUNITY
FUND
LP
LIMITED
PARTNERSHIP INTERESTS
Minimum
Capital Commitment: $5,000,000
_______________________
THESE
ARE SPECULATIVE SECURITIES
_______________________
_______________________
FOR
THE USE OF U.S. INVESTORS ONLY
_______________________
September
22, 2008
ONLY
“ELIGIBLE INVESTORS” MAY INVEST
DMR
MORTGAGE OPPORTUNITY
FUND
LP
SUBSCRIPTION
INSTRUCTIONS
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DMR Mortgage Opportunity Fund
LP (the “Fund”) is a speculative investment offered only to persons
meeting the qualifications specified in this Subscription and Capital
Commitment Agreement. Those prospective investors that meet
such qualifications are referred to herein as “Eligible
Investors.” Among such qualifications each Eligible Investor
must be (i) an institutional “accredited investor,” as defined in
Regulation D under the Securities Act of 1933, as amended, and (ii) a
“qualified client” as defined in Rule 205-3 of the Investment Advisers Act
of 1940, as amended, unless otherwise determined by the
Fund. All investors must have a high level of financial
sophistication and be able to evaluate the merits and risks of a
specialized, non-traditional investment vehicle such as the Fund,
including the risk of losing one’s entire investment.
The
speculative nature of an investment in the Fund makes it appropriate only
for a limited portion of the risk segment of a portfolio.
This
Subscription and Capital Commitment Agreement is not accepted until Declaration Management &
Research LLC, the general partner and investment adviser of the
Fund (“Declaration”), has executed a
counterpart of the Execution Pages of this Subscription and Capital
Commitment Agreement and returned them to the Subscriber.
The
Subscription and Capital Commitment Agreement has been formatted so that
only the Execution Pages need to be completed.
Subscriptions
which are not paid when due may be subject to rejection, to being held
without interest until the next issuance of Interests and/or to being
assessed for all related losses, costs and interest.
Subscriptions
must be paid by wire transfer to the following account:
Bank Name: LaSalle Bank
National Association
ABA Number: ▇▇▇▇▇▇▇▇▇
Account Name: Trust
GL
Account Number: 2090067
Further Credit to: ACCT#
725402.2
Ref: DMR
Mortgage Opportunity Fund LP Sub/Red – (insert name of
investor)
Attn: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
If
you have any questions concerning how to complete the Execution Pages of
this Subscription and Capital Commitment Agreement, please contact ▇▇▇▇▇▇▇
▇▇▇▇▇, a representative of ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors
LLC (the
“Placement Agent”) at (▇▇▇) ▇▇▇-▇▇▇▇.
This
Subscription and Capital Commitment Agreement will be kept strictly
confidential and will not be reviewed by any parties other than
Declaration, the Placement Agent and their respective agents and
counsel. Please return completed and signed Execution Pages by
fax to (▇▇▇) ▇▇▇-▇▇▇▇ and by mail to the
following address:
c/o
Declaration Management & Research LLC
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇
|
c/o
Declaration Management & Research LLC
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
McLean,
Virginia 22102
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ DISTRIBUTORS LLC
c/o
Declaration Management & Research LLC
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
McLean,
VA 22102
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Dear
Ladies and Gentlemen:
1. Subscription for
an Interest. The Subscriber hereby
subscribes to make a Capital Commitment to DMR Mortgage Opportunity Fund LP (the
“Fund”) in the amount set forth on the Execution Pages and thereby to
acquire a limited partnership
interest (an “Interest”) in the Fund. The Subscriber
understands that, if accepted, the Subscriber’s Capital Commitment causes the
Subscriber to become a limited
partner (“Limited Partner”), and to be subject to the terms of the Second Amended and Restated Limited
Partnership Agreement of the Fund (the “Limited Partnership Agreement”),
as the same may be modified and amended from time to time, as well as to the
risks, uncertainties, contingencies and expenses associated with an investment
in the Fund, as summarized in the Confidential Preliminary Private
Placement Memorandum of the Fund dated September 19, 2008, as the same may be
supplemented or otherwise modified to the date hereof (the
“Memorandum”). Capitalized terms used herein and not otherwise
defined are used with the meanings set forth in the Memorandum and the Limited
Partnership Agreement.
This Subscription and Capital
Commitment Agreement is subject to being accepted or rejected (in whole or in
part) by Declaration Management
& Research LLC, the general partner and investment adviser of the
Fund (“Declaration”).
The minimum Capital Commitment is
$5,000,000. Declaration may waive the foregoing minimum in its sole
discretion. Interests are only available at two closings (each, a “Closing
Date”). Capital Commitments were initially accepted as of May
15, 2008 and Capital Commitments will be accepted for the second Closing Date as
of September 22, 2008.
The Subscriber acknowledges and agrees
that if the Subscriber’s subscription to purchase an Interest is accepted, the
Subscriber is obligated to make Capital Contributions, on the date(s) specified
by Declaration in a Capital Call upon not less than ten (10) Business Days’
prior notice to the Subscriber, substantially in the form attached as Schedule A
hereto.
2. Eligibility. As an inducement
to Declaration, under the ultimate supervision of the Fund’s Board of Directors (the
“Board”), to accept this Subscription and Capital Commitment Agreement on
behalf of the Fund, the Subscriber hereby represents and warrants to the Fund,
the Board, Declaration and ▇▇▇▇
▇▇▇▇▇▇▇ Distributors LLC (the “Placement Agent”) as follows:
(a) The
Subscriber is duly authorized and qualified to become a Limited Partner, and the
Person(s) executing this Subscription and Capital Commitment Agreement on behalf
of the Subscriber has
(have)
been duly authorized by the Subscriber to execute and deliver this Subscription
and Capital Commitment Agreement on behalf of the Subscriber.
(b) The
Subscriber is either: (i) acquiring the Interest for which the Subscriber has
hereby subscribed for the Subscriber’s own account, for investment purposes
only, not as a nominee or financial intermediary and not with a view to or for
the resale or distribution thereof, in whole or in part, and no other Person has
a direct or indirect beneficial interest in the Interest (including, without
limitation, an economic interest arising out of a structured note, swap or
similar transaction entered into between the Subscriber and any other Person
with respect to which the Fund constitutes any component of the underlying
reference asset); or (ii) subscribing as a nominee for Person(s) acquiring an
economic interest in the Fund. All representations, warranties,
acknowledgements and covenants set forth herein that are made by the Subscriber
shall be deemed also to be made by the Subscriber on behalf of the Person(s) in
respect of which the Subscriber is acting in such capacity. Any such
Person(s) is/are responsible to the Fund, Declaration, and the Placement Agent
for the representations, warranties, acknowledgements and covenants of such
Person(s) to the same extent as such Person(s) would be responsible for had they
executed this Subscription and Capital Commitment Agreement
themselves.
(c) The
Subscriber has all governmental, regulatory and administrative registrations and
approvals required for the Subscriber to invest in the Fund.
(d) The
Subscriber has sufficient knowledge and experience in financial and business
matters to be capable of evaluating the merits and risks of making a Capital
Commitment to the Fund. The Subscriber has evaluated the risks of
investing in the Fund, understands there are substantial risks of loss in
acquiring the Interest and has determined that the Interest is a suitable
investment for the Subscriber. For the avoidance of doubt, the
Subscriber has determined that the Subscriber’s Capital Commitment is consistent
with the Subscriber’s investment purposes, objectives and cash flow
requirements, as well as the Subscriber’s need for diversification and liquidity
in the Subscriber’s overall portfolio. The Subscriber understands
that the Subscriber’s Capital Commitment may not be reduced, revoked or
suspended (other than in the unlikely event of a Key Person Event and under
other strictly limited circumstances set forth in the Limited Partnership
Agreement), irrespective of material adverse changes in the Fund’s net asset
value, the economic climate, the Fund, Declaration, and/or the Subscriber’s own
financial condition and portfolio.
3. Representations,
Warranties and Acknowledgements. As an inducement to
Declaration, under the ultimate supervision of the Board, to accept this
Subscription and Capital Commitment Agreement, the Subscriber hereby represents
and warrants to the Fund, the Board, Declaration and the Placement Agent as
follows:
(a) The
Subscriber:
(i) has been
furnished a copy of the Memorandum and has carefully read and understands the
Memorandum, has evaluated the risks of a purchase of the Interest, including the
risks set forth in the Memorandum under “Certain Risk Factors” and the
considerations described under “The Fund’s Investment Objective and Strategies”
and “Certain Federal Income Tax Considerations,” and has relied solely on the
information contained in the Memorandum or in the Fund’s Form N-2 (or other
reports required to be filed with the U.S. Securities and Exchange
Commission (the “SEC”)) in deciding whether to invest in the Fund
(irrespective of any other materials and information furnished to the Subscriber
in connection with such investment);
(ii) has been
furnished with any materials relating to the Fund, its operation, the private
placement of the Interests, the performance of the Fund, the Material Contracts,
the investment experience of Declaration and any other matters relating to the
Fund and Declaration and this investment that the Subscriber has
requested. The Subscriber acknowledges that the Fund and/or
Declaration may refuse to furnish to the Subscriber any materials which
Declaration deems to be proprietary;
(iii) has been
afforded the opportunity to ask questions of, and receive answers from,
Declaration and the Placement Agent to the extent that the Subscriber has deemed
necessary or advisable in order to verify the accuracy of the information set
forth in the Memorandum;
(iv) has
determined that the Interest is a suitable investment for the Subscriber and
that the Subscriber has the financial ability to bear the economic risk of the
Subscriber’s investment in the Fund (including the possible complete loss of
such investment), has adequate means of providing for the Subscriber’s current
needs, financial contingencies and cash flow requirements and has no need for
liquidity with respect to an investment in the Fund; and
(v) has a
pre-existing and substantive relationship with Declaration or the Placement
Agent.
(b) (i) In
making its decision to purchase the Interest, the Subscriber has relied solely
upon independent investigations made by the Subscriber or by its professional
advisors. The Subscriber is not relying on the Fund, the Placement
Agent, Declaration or their respective affiliates, owners, directors, officers
and representatives with respect to any legal, tax or other economic
considerations relating to the Subscriber’s investment decision, and further
understands that the only disclosures for which the Fund or Declaration accepts
any responsibility relating to the Subscriber’s investment are those set forth
in the Memorandum.
(ii) The
Subscriber acknowledges and agrees that neither Declaration nor the Placement
Agent has acted as an investment adviser or as a fiduciary to the Subscriber
with respect to the Subscriber’s investment in an Interest.
(c)
The
Subscriber has determined that an investment in the Interest is consistent with
any obligation the Subscriber may have to its beneficiaries or beneficial
owners, if any.
(d) The
Subscriber understands that the Subscriber may not sell or otherwise Transfer
any part of the Interest without the consent of Declaration, which will be
granted if the Transferee is an Eligible Investor, the Transfer is permitted
under applicable securities law restrictions, including without limitation an
applicable exemption from registration under the Securities Act of 1933, as amended
(the “Securities Act”), and the Transfer will not result in the Fund
constituting a publicly traded partnership for tax purposes. The
Subscriber also understands and agrees that a Transferring Limited Partner shall
remain responsible for any Capital Calls due on the Transferred Interest in the
event that the Transferee defaults.
(e) The
Subscriber understands that the Fund is registered as a closed-ended,
non-diversified management investment company under the Investment Company Act of 1940, as
amended (the “1940 Act”).
(f) The
Subscriber understands that the Fund trades futures
contracts. However, as an investment company registered as such under
the 1940 Act, the Fund has claimed an exclusion from registration as a commodity pool operator
(“CPO”) pursuant to Commodity Futures Trading Commission
(“CFTC”) Rule 4.5(a)(1) and is not subject to CPO
regulation. Also, Declaration is exempt from registration as a commodity trading advisor
(“CTA”) and is generally not subject to CTA regulation.
(g) The
Subscriber has carefully reviewed and understands the terms of the Material
Contracts, and the Subscriber specifically agrees to and acknowledges the
exculpation and indemnification provisions set forth in the Limited Partnership
Agreement and that such provisions shall survive the dissolution of the
Fund. Subject to Section 12(d), the Subscriber
hereby specifically waives any recourse against the Fund, the Placement Agent,
or Declaration, or their respective affiliates, owners, directors, officers and
representatives (each, a
“Declaration Party”) in respect of the offering of the Interest and the
operations of the Fund, provided that the Declaration Party in question complies
with the standard of liability set forth in Section 2.7 of the Limited
Partnership Agreement.
(h)
The
Subscriber confirms that none of the Fund or any Declaration Party guarantees
the success of an investment in the Interest or that substantial or total losses
will not be incurred on such investment.
(i)
The
Fund has a short financial and operating history.
(j)
The
Subscriber understands that because Declaration is eligible to receive the
Carried Interest distributions, Declaration may have incentives to invest in
more speculative investments than Declaration otherwise would.
(k) The
Subscriber could lose all or substantially all of its investment and will be
committed to the Fund for an indefinite period of time with no ability to
withdraw capital or otherwise recognize profits or losses on its
investment. The Subscriber understands that the Interest is not able
to be withdrawn at the option of the Subscriber.
(l)
The
Subscriber acknowledges that the business terms of the Fund have been
established without the interest of any particular investor being
represented.
(m) The
Subscriber acknowledges that Declaration, as well as its Affiliates, currently
manage other investment funds in addition to the Fund and may have financial and
other incentives to favor certain of such investment funds over the
Fund.
(n) The
Subscriber understands and consents to the brokerage and custody arrangements
used by the Fund, as described under “Brokerage Arrangements” in the
Memorandum.
(o) The
Subscriber understands that no federal or state agency, securities or commodity
exchange or self-regulatory body has reviewed the Memorandum or the private
placement of the Interests or made any finding or determination as to the
fairness of the business terms of an investment in the Fund.
(p) The
Subscriber represents and warrants that, except as it may disclose in writing to
Declaration, the Subscriber is not subject to the Freedom of Information Act or
any similar legislation or regulation that could compel the Subscriber to
disclose to the public any information regarding the Subscriber’s investment in
the Fund. The Subscriber agrees to treat all information regarding
Declaration or the Fund (except for information that is otherwise publicly
available) as confidential unless Declaration gives express written approval for
the Subscriber not to do so. The Subscriber may, however, share
confidential information with its professional advisers, with investors in the
case of an investor which is itself a private investment fund or with any person
controlling such Subscriber, provided that the Subscriber has notified such
other persons of the confidentiality of such information. The
Subscriber may also disclose confidential information if required to do so by
law or in response to regulatory reporting requirements of such Subscriber or
regulatory requests (including, for this purpose, from the National Association
of Insurance Commissioners).
(q)
The
Subscriber acknowledges that in the event that a Person becomes a Shareholder
and as a result an Impermissible Event (as defined in the Limited Partnership
Agreement) occurs, Declaration may, but shall be under no obligation to,
exercise a number of remedies, including: (i) immediately requiring the
withdrawal of part or all of such Person’s Capital Account and, subject to
Section 12(d), to the extent that the other Limited Partners have been damaged
by the admission of such Limited Partner and such admission was permitted, in
whole or in part, as a result of a misstatement or breach by such Person, such
Person’s withdrawal proceeds shall be debited with the amount which Declaration
determines is appropriate to compensate such other Limited Partners for any such
damage, irrespective of whether Declaration had expressly consented thereto;
(ii) causing the relevant Limited Partner to forfeit all or any portion of
future Distributions, other than in respect of a return of capital, made by the
Fund; and (iii) causing the relevant Limited Partner to be excluded from
participating in future Fund investments. Furthermore, the Subscriber
acknowledges that, in the event that the Fund mandatorily withdraws the balance
of a Capital Account, the Fund shall pay withdrawal proceeds in respect of such
Capital Account to
the
relevant Limited Partner, without interest, in one or more installments at any
time after the commencement of the Distribution Period.
(r) The
Subscriber agrees that the foregoing representations and warranties, and all
other information regarding the Subscriber set forth herein, may be used as a
defense in any actions relating to the Fund or the offering of the Interests,
and that it is only on the basis of such representations, warranties and other
information that Declaration may be willing to accept the Subscriber’s
subscription for the Interest.
(s) If there
should be any material change in any of the foregoing information,
representations or warranties, the Subscriber agrees to inform the Fund,
Declaration and the Placement Agent as promptly as reasonably
practicable. The Subscriber acknowledges that the Fund, Declaration,
the Declaration Parties, the other Partners and the Placement Agent will rely on
such information, representations and warranties on an ongoing
basis.
THE
FUND IS A SPECULATIVE INVESTMENT THAT INVOLVES RISK, INCLUDING THE RISK OF
LOSING ALL OR SUBSTANTIALLY ALL OF THE AMOUNT INVESTED. THE
SUBSCRIBER SHOULD NOT REGARD THE FUND AS A COMPLETE INVESTMENT
PROGRAM.
THE
SUBSCRIBER HAS READ CAREFULLY AND UNDERSTANDS THE MEMORANDUM AND HAS RELIED ON
THE SUBSCRIBER’S OWN ADVISORS WITH RESPECT TO THE SUBSCRIBER’S INVESTMENT IN THE
INTEREST AND THE SUITABILITY OF SUCH INVESTMENT FOR THE
SUBSCRIBER. THE SUBSCRIBER HAS NOT RELIED ON ANY OF THE FUND,
DECLARATION, ANY DECLARATION PARTY OR THE PLACEMENT AGENT FOR TAX OR LEGAL
ADVICE, BUT ONLY ON THE SUBSCRIBER’S OWN ADVISORS.
4. ERISA
Representations. If the Subscriber is, or
is acting on behalf of, an “employee benefit plan”, as defined in and subject to
ERISA, a “plan”, as defined in and subject to Section 4975 of the Code (a “Plan”), or a Plan Assets
Entity (in which case, the following representations and warranties are made
with respect to each Plan holding an investment in such Plan Assets Entity), the
individual signing this Subscription and Capital Commitment Agreement on behalf
of the Subscriber, in addition to the representations and warranties set forth
above, hereby further represents and warrants as, or on behalf of, the fiduciary
of the Plan responsible for purchasing an Interest (the “Plan Fiduciary”) that:
(a) the Plan Fiduciary has considered an investment in the Fund for such Plan in
light of the risks relating thereto; (b) the Plan Fiduciary has determined that,
in view of such considerations, the investment in the Fund is consistent with
the Plan Fiduciary’s responsibilities under ERISA; (c) the Plan’s investment in
the Fund does not violate and is not otherwise inconsistent with the terms of
any legal document constituting the Plan or any trust agreement thereunder; (d)
the Plan’s investment in the Fund has been duly authorized and approved by all
necessary parties; (e) none of Declaration, any Director, the Placement Agent,
any other placement agent, any of their respective affiliates or any of their
respective agents or employees: (i) has investment discretion with
respect to the investment of assets of the Plan used to purchase an Interest;
(ii) has authority or responsibility to or regularly gives investment advice
with respect to the assets of the Plan used to purchase an Interest for a fee
and pursuant to an agreement or understanding that such advice will serve as a
primary basis for investment decisions with respect to the Plan and that such
advice will be based on the particular investment needs of the Plan; or (iii) is
an employer maintaining or contributing to the Plan; and (f) the Plan Fiduciary
(i) is authorized to make, and is responsible for, the decision to invest in the
Fund, including the determination that such investment is consistent with the
requirement imposed by Section 404 of ERISA that Plan investments be diversified
so as to minimize the risks of large losses, (ii) is independent of Declaration,
each Director, the Placement Agent, each other placement agent and each of their
respective affiliates, and (iii) is qualified to make such investment
decision. The Subscriber will, at the request of Declaration, furnish
Declaration with such information as Declaration may reasonably require to
establish that the purchase of the Interest by the Plan does not violate any
provision of ERISA or the Code, including without limitation, those provisions
relating to “prohibited transactions” by “parties in interest” or “disqualified
persons” as defined therein.
5. Investment
Advisers Act. The undersigned is a
“qualified client” under Rule 205-3 of the Advisers Act because the undersigned
(a) has a net worth in excess of $1,500,000 or (b) is a “qualified purchaser”
under Section 2(a)(51)(A) of the 1940 Act.
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Opportunity Fund LP “U.S. Investors” Subscription and Capital Commitment Agreement |
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6. Representations
and Warranties of the Subscriber under the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (the “USA PATRIOT Act”). As an inducement to the
Fund to accept this Subscription and Capital Commitment Agreement, the
Subscriber hereby represents and warrants to the Fund, Declaration and the
Placement Agent as follows:
(a) All
evidence of identity provided by the Subscriber to the Fund, Declaration and/or
the Placement Agent is genuine, and all related information furnished by the
Subscriber to the Fund, Declaration and/or the Placement Agent is
accurate. As part of their responsibility for preventing an
investment in the Fund from being used as a means of money laundering, any of
the foregoing may require a detailed verification of the identity of the
Subscriber (as well as the Subscriber’s direct or indirect beneficial owners, if
any).
(b) The
Subscriber agrees to provide any information deemed necessary from time to time
by the Fund, Declaration and/or the Placement Agent to comply with applicable
anti-money laundering laws, their respective anti-money laundering programs and
related responsibilities.
(c) The
Subscriber restates and reaffirms the representations and warranties made by the
Subscriber in Section
2(b) in the specific context of money-laundering prevention.
(d) Unless
otherwise stated herein, the Subscriber is not acting as agent, representative,
intermediary/nominee or in any similar capacity for any other
Person.
(e) The
Subscriber represents, warrants and covenants that none of the Subscriber, any
Person controlling, controlled by, or under common control with, the Subscriber,
or any Person having a beneficial interest in the Subscriber or that will have a
beneficial interest in the Interest, is a Prohibited Investor,1 and that the Subscriber is not investing and
will not invest in the Fund on behalf of or for the benefit of any Prohibited
Investor. The Subscriber agrees promptly to notify Declaration and
the Placement Agent of any change in the information affecting this
representation, warranty and covenant.
(f) The
Subscriber acknowledges that, if, following the issuance of an Interest to the
Subscriber, the Fund believes that the Subscriber is a Prohibited Investor, has
otherwise breached any of the Subscriber’s representations, warranties or
covenants set forth herein, furnished incorrect information to the Fund or
otherwise caused concerns under the anti-money laundering program and related
responsibilities of the Fund, Declaration and/or the Placement Agent, the Fund
may be obliged to freeze the Subscriber’s investment, which the Fund may do by
declining any additional Capital Commitment, Capital Contribution, Distribution
or Transfer submitted by the Subscriber, segregating the assets attributable to
the Subscriber’s Interest and/or taking such other action as the Fund considers
necessary or advisable in order to comply with Law, including requiring the
mandatory capital withdrawal of part or all of the Subscriber’s
Interest.
(g) The
Subscriber acknowledges that additional Capital Commitments and/or Capital
Contributions by the Subscriber may be refused and/or a Distribution may be
delayed or declined by the Fund in its sole discretion in accordance with the
Limited Partnership Agreement, this Subscription and Capital Commitment
Agreement and the Memorandum.
______________________________
1 “Prohibited
Investors” include: (1) a Person whose name appears on the list of
Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control
(“OFAC”) or subject to OFAC country sanctions, any Securities and
Exchange Commission-maintained blocked persons list or other lists as required
by Law, the Fund or Declaration, (2) any Foreign Shell Bank, (as defined below),
and (3) any Person resident in or whose subscription funds are transferred from
or through an account in a jurisdiction 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 U.S. representative to the group or organization continues
to concur. See ▇▇▇▇://▇▇▇.▇▇▇▇-▇▇▇▇.▇▇▇ for FATF’s list of
Non-Cooperative Jurisdictions and Territories.
| DMR Mortgage
Opportunity Fund LP “U.S. Investors” Subscription and Capital Commitment Agreement |
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(h) None of
the Subscriber or any director, officer, partner, member, shareholder, affiliate
(as defined under the applicable regulations) or beneficial owner of the
Subscriber is a Senior Foreign Political Figure,2 any member of a Senior Foreign Political
Figure’s Immediate Family3 or any Close Associate4 of a Senior Foreign Political
Figure.
(i) The
Subscriber 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 of the USA PATRIOT Act as warranting special measures due to money
laundering concerns.5
(j) The
Subscriber’s Capital Commitment does not originate from, nor will it be routed
through, an account maintained at a Foreign Shell Bank6 or a bank organized or chartered under the
laws of a jurisdiction that has been designated as non-cooperative with
international anti-money laundering principles.
(k) The
Subscriber acknowledges and agrees that, subject to anti-money laundering
regulations or procedures, the Fund has discretion to wire transfer any and all
funds payable to the Subscriber to the account specified by the Subscriber in
this Subscription and Capital Commitment Agreement.
(l) The
Subscriber acknowledges and agrees that the Fund, Declaration and/or the
Placement Agent may release confidential information concerning the Subscriber
and, if applicable, any Person with a direct or indirect beneficial interest in
the Interest or in the Subscriber itself, to regulatory or law
____________________________
2 “Senior
Foreign Political Figure” means a current or former senior political official in
the executive, legislative, administrative, military or judicial branches of a
non-U.S. government (whether elected or not), a current or former senior
official of a major non-U.S. political party, or a current or former senior
executive of a non-U.S. 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.
3
“Immediate Family,” with respect to a Senior Foreign Political Figure, typically
includes the political figure’s parents, siblings, spouse, children and
in-laws.
4 “Close
Associate” means, with respect to a Senior Foreign Political Figure, a person
who is widely and publicly known internationally to maintain an unusually close
relationship with the Senior Foreign Political Figure, and includes a person who
is in a position to conduct substantial U.S. and non-U.S. financial transactions
on behalf of the Senior Foreign Political Figure.
5 The
Treasury Department’s Financial
Crimes Enforcement Network (“FinCEN”) issues advisories regarding
countries of primary money laundering concern. FinCEN’s advisories
are posted at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇_▇▇▇▇.▇▇▇▇. Current Section
311 special measures can be found at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇_▇▇▇▇▇▇▇▇▇▇.▇▇▇▇.
6 “Foreign
Shell Bank” means a Foreign Bank without a Physical Presence (each as defined
below) in any country, but does not include a Regulated Affiliate (as defined
below).
“Foreign Bank” means an organization
that: (i) is organized under the laws of a country outside the United States;
(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 non-U.S.
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 related to its banking
activities; and (iii) is subject to inspection by the banking authority that
licensed the Foreign Bank to conduct banking activities.
“Regulated Affiliate” means a Foreign
Shell Bank that: (i) is an affiliate of a depository institution,
credit union, or Foreign Bank that maintains a Physical Presence in the United
States or a non-U.S. 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.
| DMR Mortgage
Opportunity Fund LP “U.S. Investors” Subscription and Capital Commitment Agreement |
S-7
|
enforcement
authorities, if the Fund, Declaration and/or the Placement Agent determines that
it is required or advisable to do so in order to ensure compliance with
Law.
(m) The
Subscriber, by executing the Execution Pages of this Subscription and Capital
Commitment Agreement, represents and warrants that the Subscriber’s Capital
Contribution has been, and future Capital Contributions will be, derived from
legal sources. As part of the Fund’s responsibility for protection
against money laundering, the Fund may require a detailed verification of the
identity of the Subscriber. Depending on the circumstances of this
Subscription and Capital Commitment Agreement, a detailed verification might not
be required where:
(i) the
Subscriber makes the payment from an account held in the Subscriber’s name at a
recognized financial institution; or
(ii) the
Subscriber’s Capital Commitment is made through an intermediary known to
Declaration and/or the Placement Agent.
These
exceptions will only apply if the financial institution or intermediary referred
to above is within a country recognized as having sufficient anti-money
laundering regulations and only if the Fund determines in its sole discretion,
after any further inquiry or investigation it may deem necessary, that any such
exception is consistent with the Fund’s anti-money laundering
policies.
(n) In
addition to the provisions of Sections 6(a) and 6(b), the
Fund, Declaration and the Placement Agent each reserves the right to request
such information as the Fund, Declaration or any Declaration Party, as the case
may be, may deem necessary or advisable to verify the identity of the Subscriber
(or the Subscriber’s direct or indirect beneficial owners) or to require the
Subscriber, if an entity, to provide a copy of its anti-money laundering
policies to the Fund, Declaration, any Declaration Party and/or the Placement
Agent, as the case may be. In the event of any delay or failure by
the Subscriber to produce any information so requested, Declaration or the Fund
may refuse to accept any new Capital Commitment from the Subscriber or may
refuse to process a Distribution or Transfer by the Subscriber until proper
information has been provided. The Fund reserves the right to
withdraw the Interest of any Subscriber if at any time the Subscriber fails to
provide any additional information requested by the Fund, Declaration, any
Declaration Party or the Placement Agent for verification purposes, for purposes
of evaluating the Subscriber’s anti-money laundering policies in light of their
respective anti-money laundering policies and related
responsibilities.
(o) The
Subscriber agrees that it shall have no claim against the Fund, Declaration, any
Declaration Party or the Placement Agent for any form of damages as a result of
the Fund, Declaration, any Declaration Party or the Placement Agent taking any
of the actions referred to in this Section 6.
The
Subscriber agrees promptly to notify Declaration and the Placement
Agent
(or the Person appointed by each to administer their respective anti-money laundering
programs in respect of the Fund, as notified to the Subscriber by each of the
foregoing), if any of the foregoing representations or warranties are
no longer accurate or if the Subscriber is not complying with any of
the foregoing covenants, in each case in all material respects.
(or the Person appointed by each to administer their respective anti-money laundering
programs in respect of the Fund, as notified to the Subscriber by each of the
foregoing), if any of the foregoing representations or warranties are
no longer accurate or if the Subscriber is not complying with any of
the foregoing covenants, in each case in all material respects.
7. Voluntary
Limitation on Fund Percentage for Voting Purposes. In the event that the
Subscriber indicates on the Execution Pages that the Subscriber does not wish to
have a Fund Percentage for voting purposes in excess of a specified percentage,
the Fund, by accepting this Subscription and Capital Commitment Agreement,
agrees to the Subscriber waiving, in whole or in part, what would otherwise have
been the Subscriber’s Fund Percentage to the extent required not to exceed such
percentage. The Subscriber agrees that such waiver shall be
irrevocable and that the Subscriber shall not exercise any voting rights with
respect to its Fund Percentage in excess of such specified
percentage. The voting rights so waived shall thereupon be deemed to
be held by the other Limited Partners pro rata in accordance with
their respective Fund Percentages (after giving effect to all other limitations
imposed on the Fund Percentages for voting purposes of such Limited
Partners).
| DMR Mortgage
Opportunity Fund LP “U.S. Investors” Subscription and Capital Commitment Agreement |
S-8
|
8. Acceptance of the
Limited Partnership Agreement. The Subscriber
agrees that on the date designated by Declaration as the date as of which the
Subscriber has been admitted to the Fund, the Subscriber shall become a Limited
Partner, and the Subscriber hereby agrees to each and every term of the Limited
Partnership Agreement.
9. Use of Statements
and Information in the Subscription and Capital Commitment
Agreement. The Subscriber agrees
that the foregoing statements, and all other information regarding the
Subscriber set forth herein, may be used as a defense in any claim relating to
the Fund and/or the offering of the Interests, and that it is only on the basis
of such statements and other information that Declaration may be willing to
cause the Fund to issue an Interest to the Subscriber.
10. Power of
Attorney. In connection
with the acquisition of the Interest pursuant to this Subscription and Capital
Commitment Agreement, the Subscriber does hereby irrevocably constitute and
appoint Declaration as the Subscriber’s true and lawful attorney, in the
Subscriber’s name, place and stead, to execute, acknowledge, swear to, file and
record (if applicable) on the Subscriber’s behalf, and in the appropriate public
offices if relevant: (i) the Limited Partnership Agreement; (ii) a
Certificate of Formation including amendments thereto; (iii) all instruments
which Declaration may deem necessary or appropriate to reflect any amendment,
change or modification of the Limited Partnership Agreement or the Certificate
of Formation in accordance with the terms of the Limited Partnership Agreement;
and (iv) all instruments, agreements and documents which Declaration considers
necessary to or appropriate for the operation of the Fund as contemplated in the
Memorandum.
The
Subscriber agrees and acknowledges that the other Limited Partners are relying
on the continued validity of the foregoing Power of Attorney, and that the Power
of Attorney granted hereby shall be deemed to be coupled with an interest and
shall be irrevocable, surviving the death, incapacity or dissolution of the
Subscriber.
This
Power-of-Attorney shall survive the Transfer of the whole or any portion of the
Subscriber’s Interest, except that, with respect to the Transferor, this
Power-of-Attorney shall also survive the Transfer for the sole purpose of
enabling Declaration to execute, acknowledge, swear to and file any instrument
necessary to effect such Transfer.
11. Documentation.
If the Subscriber is an entity,
Declaration may request certain documentation prior to determining whether to
accept their subscription. Upon request::
(a) an entity
will be required to provide evidence that the Person(s) executing this
Subscription and Capital Commitment Agreement on behalf of the Subscriber has
been duly authorized by the Subscriber to execute and deliver this Subscription
and Capital Commitment Agreement on behalf of the Subscriber, e.g., resolutions of its
board of directors and specimen signatures;
(b) a
corporation may be required to deliver one copy of its articles of incorporation
and by-laws, and a copy of any document authorizing or governing its investment
policies, e.g.,
resolutions of its board of directors;
(c) a
partnership may be required to deliver one copy of its partnership agreement or
other governing agreement; and
(d) a trust
may be required to deliver one copy of its declaration of trust or other
governing instrument and any document authorizing or governing its investment
policies.
12. Miscellaneous. The
following provisions are applicable even if the Subscriber’s Subscription and
Capital Commitment Agreement is not accepted, and the Subscriber does not become
a Limited Partner.
| DMR Mortgage
Opportunity Fund LP “U.S. Investors” Subscription and Capital Commitment Agreement |
S-9
|
(a) Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial.
(i) THIS
SUBSCRIPTION AND CAPITAL COMMITMENT AGREEMENT IS MADE PURSUANT TO AND SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW AND NOTWITHSTANDING THE PLACE WHERE THIS SUBSCRIPTION AND
CAPITAL COMMITMENT AGREEMENT IS EXECUTED OR THE LOCATION OF ANY OFFICE, VENTURE
OR OPERATION OF THE FUND, DECLARATION, ANY DECLARATION PARTY, THE PLACEMENT
AGENT OR THE SUBSCRIBER. EXCEPT AS OTHERWISE SET FORTH IN SECTION 12(d), ANY ACTION OR
PROCEEDING RELATING IN ANY RESPECT TO THIS SUBSCRIPTION AGREEMENT, THE OPERATION
OF THE FUND, THE MATERIAL CONTRACTS OR THE OFFERING OF THE INTERESTS
MAY BE BROUGHT AND ENFORCED IN THE COURTS OF THE CITY, COUNTY AND STATE OF NEW
YORK OR (TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFOR) IN THE
COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND THE FUND,
DECLARATION, ANY DECLARATION PARTY, THE PLACEMENT AGENT AND/OR THE SUBSCRIBER
IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF BOTH SUCH STATE AND
FEDERAL COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. EXCEPT AS
OTHERWISE SET FORTH IN SECTION
12(d), THE SUBSCRIBER AND THE FUND IRREVOCABLY WAIVE ANY OBJECTION THAT
THEY MAY NOW OR HEREAFTER HAVE TO LAYING THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN THE COURTS OF THE CITY, COUNTY AND STATE OF NEW YORK OR IN THE
COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY CLAIM
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(ii) EXCEPT AS
OTHERWISE SET FORTH IN SECTION
12(d), THE SUBSCRIBER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY
JURY WITH RESPECT TO ANY CLAIM AGAINST THE FUND, DECLARATION, ANY DECLARATION
PARTY, OR THE PLACEMENT AGENT RELATING IN ANY RESPECT TO THIS SUBSCRIPTION AND
CAPITAL COMMITMENT AGREEMENT, THE OPERATION OF THE FUND, THE MATERIAL CONTRACTS
OR THE OFFERING OF THE INTERESTS.
(iii) THE
SUBSCRIBER HEREBY AGREES THAT SERVICE OF PROCESS MAY BE EFFECTED ON THE
SUBSCRIBER IN THE SAME MANNER AS NOTICES ARE GIVEN PURSUANT TO SECTION 15.
(b) Equitable
Relief. The Subscriber
agrees that, subject to Section
12(d), the Fund, the Board, Declaration, any Declaration Party and/or the
Placement Agent would be subject to potentially irreparable injury as a result
of any breach by the Subscriber of any of the representations, warranties,
acknowledgements, covenants or agreements set forth in this Subscription and
Capital Commitment Agreement, and that monetary damages would not be sufficient
to compensate or make whole the Fund, the Board, Declaration, any Declaration
Party and/or the Placement Agent for any such breach. Accordingly,
the Subscriber agrees that, subject to Section 12(d), the Fund, the
Board, Declaration, any Declaration Party and/or the Placement Agent, separately
or together, shall be entitled to equitable and injunctive relief, on an
emergency, temporary, preliminary and/or permanent basis, so as to prevent any
such breach or the continuation thereof.
(c) Survival; Legal
Effect.
(i) The
Subscriber agrees that the representations, warranties, agreements and covenants
set forth in this Subscription and Capital Commitment Agreement shall, in
pertinent part, survive the acceptance (or rejection) of this Subscription and
Capital Commitment Agreement and any subsequent withdrawal from the Fund by the
Subscriber.
| DMR Mortgage
Opportunity Fund LP “U.S. Investors” Subscription and Capital Commitment Agreement |
S-10
|
(ii) This
Subscription and Capital Commitment Agreement shall be binding upon the parties
hereto and shall inure to the benefit of such parties as well as those
indemnified hereunder.
(iii) In case
of any conflict between this Subscription and Capital Commitment Agreement and
the Limited Partnership Agreement, this Subscription and Capital Commitment
Agreement shall control.
(d) Exclusions. In
the event that the Subscriber is prevented or restricted by Law or governmental
policy from providing indemnification or set-off, being subject to a penalty,
waiving trial by jury, consenting to a given venue in the case of a proceeding
or agreeing to be subject to equitable relief, such Subscriber shall be excused
from such provisions (unless otherwise permitted to be subject
thereto).
(e) Severability. In
the event that any provision of this Subscription and Capital Commitment
Agreement is held to be invalid or unenforceable in any jurisdiction, such
provision shall be deemed modified to the minimum extent necessary so that such
provision, as so modified, shall no longer be held to be invalid or
unenforceable. Any such modification, invalidity or unenforceability
shall be strictly limited both to such provision and to such jurisdiction, and
in each case to no other. Furthermore, in the event of any such
modification, invalidity or unenforceability, this Subscription and Capital
Commitment Agreement shall be interpreted so as to achieve the intent expressed
herein to the greatest extent possible in the jurisdiction in question and
otherwise as set forth herein.
(f) Counterparts;
Facsimiles.
(i) The
Execution Pages of this Subscription and Capital Commitment Agreement may be
executed in one or more counterparts, each of which shall, however, together
constitute the same document. Facsimiles (as such term is defined in
the Limited Partnership Agreement) shall have the same binding force as
originals.
(ii) The
Subscriber agrees that Declaration is authorized to accept and execute the
Execution Pages as well as any instructions given by the Subscriber in original
signed form or by facsimile. If instructions are given by facsimile,
the Subscriber will promptly courier the original signed form to Declaration
and, except as otherwise set forth in Section 12(d), will indemnify
the Fund, Declaration, the Declaration Parties and the Placement Agent for any
losses and damages suffered by any of them as a result of acting on facsimile
instructions rather than instructions in original signed form. The
Subscriber further agrees that the Fund, Declaration, any Declaration Party and
the Placement Agent are entitled to rely conclusively on, and shall incur no
liability in respect of any action taken on the basis of, any notice, consent,
request, instruction or other instrument believed in good faith to be genuine or
to be signed by properly authorized persons.
(g) Entire
Agreement. This Subscription and Capital Commitment Agreement
and the Limited Partnership Agreement contain the entire agreement and
understanding of the parties hereto relating to the subject matter hereof, and
supersede any prior agreements and understandings of the parties relating to
such subject matter.
(h) No
Waiver.
(i) No
failure or delay on the part of the Fund, Declaration, any Declaration Party or
the Placement Agent in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. Failure on the part
of the Fund, Declaration, any Declaration Party or the Placement Agent to
challenge any act of the Subscriber or to declare the Subscriber in default with
respect to the Fund, Declaration, any Declaration Party or the Placement Agent,
irrespective of how long that failure continues, shall not constitute a waiver
by the Fund, Declaration, any Declaration Party or the
| DMR Mortgage
Opportunity Fund LP “U.S. Investors” Subscription and Capital Commitment Agreement |
S-11
|
Placement
Agent of their rights with respect to that default until the applicable
statute-of-limitations period has run.
(ii) Any
waiver granted hereunder must be in writing and shall be valid only in the
specific instance in which given.
13. Notices.
(a) All
notices or other communications that the Fund or the Subscriber may desire or be
required to give hereunder shall be in writing and shall be personally
delivered, delivered by facsimile transmission (and, unless waived by the
recipient upon receipt of the facsimile, confirmed by delivery in another manner
permitted hereunder), mailed by certified or registered mail (postage prepaid),
sent by overnight delivery by a reputable private carrier or postal service or
transmitted by e-mail with receipt confirmed (and, unless waived by the
recipient upon receipt of the e-mail, confirmed by delivery in another manner
permitted hereunder). All notices or other
communications:
(i) to the
Fund shall be sent to the following address: c/o Declaration
Management & Research LLC, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III;
(ii) to the
Subscriber shall be sent to the address listed in the Execution Pages attached
hereto unless the Subscriber advises the Fund in writing of a subsequent change
in address; and
(iii) shall be
deemed to have been validly given upon receipt when personally delivered or
delivered by a confirmed facsimile transmission or e-mail, on the fifth Business
Day after having been mailed by certified or registered mail, or on the next
Business Day after being sent for overnight delivery by a reputable private
carrier or the postal service.
(b) Any
notice period prescribed by this Subscription and Capital Commitment Agreement
shall commence on the day that the relevant notice is effective as provided in
the preceding paragraph. Such notice period shall include all days,
and shall conclude as of the close of business on the day which is the
prescribed number of days following the commencement day, or if such day is not
a Business Day, as of the close of business on the next succeeding Business
Day.
14. Electronic
Delivery of Securities Law Required Information.
□ The
Subscriber consents to the delivery of information required by the U.S.
securities law via electronic mail and/or Internet website posting and agrees to
access the Subscriber’s electronic mail account and use Declaration’s Internet
website to view these important Fund information and investor
notices. The Subscriber would like to be notified when new Fund
information is placed on Declaration’s website by (check one):
□ electronic
mail or □
regular mail.
□ The
Subscriber does NOT consent to the delivery of the above-referenced information
via electronic mail or website posting.
15. State of Georgia
Securities Legend. The offering and
sale of the Interests are intended to be exempt from registration under the
securities laws of all states. Subscribers who reside in the State of
Georgia should note the language set forth below, which is required to be
included in this Subscription and Capital Commitment Agreement by the securities
laws of such State.
FOR GEORGIA INVESTORS
ONLY
|
THE
INTERESTS WILL BE SOLD IN RELIANCE ON THE EXEMPTION FROM SECURITIES
REGISTRATION CONTAINED IN PARAGRAPH 13 OF CODE SECTION 10-5-9 OF THE
GEORGIA
|
| DMR Mortgage
Opportunity Fund LP “U.S. Investors” Subscription and Capital Commitment Agreement |
S-12
|
|
SECURITIES
ACT OF 1973, AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION
WHICH IS EXEMPT FROM SUCH ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION
UNDER SUCH ACT.
|
16. Items Required from the
Subscriber.
(a) Completed
and executed copy of the Execution Pages.
|
(b)
|
Arrangements
for the Capital Contribution(s) to be made to the Fund in such amounts and
on such date(s) specified by Declaration in Capital Calls upon not less
than ten Business Days’ prior notice to the Subscriber, substantially in
the form attached as Schedule A
hereto.
|
(c) Any
information requested by the Fund, Declaration or the Placement
Agent.
(d) Completed
attached Form W-9.
| DMR Mortgage
Opportunity Fund LP “U.S. Investors” Subscription and Capital Commitment Agreement |
S-13
|
DMR
MORTGAGE OPPORTUNITY FUND LP
EXECUTION
PAGES FOR SUBSCRIPTION BY U.S. INVESTORS
Note:
The Subscriber should complete these Execution Pages in connection with the
Subscriber’s Capital Commitment to the
Fund.
|
1.
|
Entity Ownership —
Check Form of Organization of Entity
Subscriber
|
|
q
Trust
|
q ERISA
Plan
|
q Corporation
|
q Limited
Partnership or Limited Liability Company
|
|
qOther Form of
Organization — Please
Specify _____________________________________________
(Note:
Do not indicate here whether Subscriber is acting in its capacity as a
nominee or financial intermediary.)
|
|||
(Please
print all information exactly as you wish it to appear on the Fund
records.)
|
2.
|
Amount of Capital
Commitment (minimum:
$5,000,000):
|
$__________
|
3.
|
Subscriber’s
Information
|
Note
that the Name of the Subscriber should include only the exact legal name of the
legal owner of the Interest. Any account or other reference
information should be included in the “Additional Comments” box.
|
Name
of Subscriber:
|
||
|
Principal
Place of Business Address (Provide Legal Address; No P.O.
Boxes)
|
||
|
Contact
Person
|
Primary
Contact
T
The Primary Contact receives all
correspondence and statements and is the contact person for questions concerning this investment. |
Secondary
Contact
|
|
Full
Name
|
qMr.
qMrs.
qMs.
qDr.
qOther
|
qMr.
qMrs.
qMs.
qDr.
qOther
|
|
Mailing
Address
(if
different from Principal Place of Business)
|
||
| DMR Mortgage Opportunity
Fund LP
Subscription
and Capital Commitment Agreement
For
U.S. investors only
|
Execution Pages-1
|
|
Business
Phone
|
||
|
Business
Fax/Email
(if
different from below)
|
||
|
Home
Phone
(Primary
Contact)
|
||
|
Home
Fax/Email
(Primary
Contact)
(if
different from below)
|
||
|
Email
Address
|
||
|
Tax
I.D. Number
|
||
|
Additional
Comments
|
||
4. “Qualified Client”
Status
__________ The
Subscriber meets the standards for being categorized as a “qualified
client” as setforth in this Subscription and Capital Commitment
Agreement.
|
5.
|
Institutional
“Accredited Investor” Status — See Schedule B for more information to
assist you in determining whether you are an institutional “accredited
investor”
|
The
Subscriber meets the standards for being categorized as an institutional
“accredited investor,” as set forth in Schedule B [Please check
one]:
(a)
q(b) q (c) q (d) q (e) q (f) q (g) q
The
Subscriber agrees to notify Declaration within 30 days of any change in the
information set forth above.
|
6.
|
Internal Revenue Code
Certification
|
q Please
complete the Form W-9 attached as Schedule C.
The
Subscriber agrees to notify DMR within 30 days of any change in the information
set forth in the attached Form W-9.
The
trustee, partner or officer signing on behalf of the Subscriber certifies that
he or she has full power and authority to execute this Subscription and Capital
Commitment Agreement on behalf of the entity and that investment in the Fund is
not prohibited by law or the governing documents of such entity.
|
7.
|
Anti-Money Laundering
Procedures
|
An authorized officer, director,
partner, member, manager or other similar person of the Subscriber hereby
certifies that: (i) the Subscriber is in compliance with all applicable
anti-money laundering laws and regulations and, if legally required to
maintain anti-money laundering
policies (“AML
Policies”) does so as required; (ii) the Subscriber’s AML Policies, if
applicable, have been approved by legal counsel or internal compliance personnel
reasonably informed concerning anti-money laundering issues; and (iii) the
Subscriber has not received a deficiency letter, negative report or any similar
determination regarding its compliance with any applicable anti-money laundering
laws and regulations and, if applicable, its AML Policies, from a
regulator.
| DMR
Mortgage Opportunity Fund
LP
Subscription
and Capital Commitment Agreement
For
U.S. investors only
|
Execution Pages-2
|
|
8.
|
Standing
Instructions
|
(a) Authorized
Signatories
The
Subscriber represents that the following is a complete list of the individuals,
who are authorized to act on behalf of, and bind, the Subscriber (each such individual, an “Authorized
Signatory”) in connection with any and all communications and
transactions between the Fund (or its representatives) and the Subscriber. The
Subscriber acknowledges that the Fund may rely on instructions received from,
and representations made by, each Authorized Signatory. The following list may
be amended by written notice, signed by an Authorized Signatory and delivered to
the Fund, at the address provided herein.
|
Name
|
Specimen Signature
|
|
Note: In addition to
providing specimen signatures as requested above, the Subscriber is required to
furnish additional written evidence acceptable to Declaration (which may take
the form of an incumbency certificate, written resolutions, a power of attorney
or other similar proof) of each Authorized Signatory’s authority to act on
behalf of, and bind, the Subscriber.
(b) Standing
Wire Instructions:
The
Subscriber agrees that, subject to applicable anti-money laundering regulations
and procedures, the Fund has discretion to wire transfer all or any funds
payable to the Subscriber (including Distributions) to the following account of
the Subscriber:
|
Bank
Name:
|
|
|
Bank
Address:
|
|
|
ABA,
SWIFT or CHIPS No.:
|
|
|
Account
Name:
|
|
|
Account
No.:
|
|
|
For
Further Credit:
|
|
|
Reference:
|
If the
bank identified immediately above is not located in the United States or another
FATF Country,3 please provide the documentation requested
under Section 8(d) of these Execution Pages and contact Declaration to determine
any additional information that may be required from the
Subscriber.
_________________________________
3 A “FATF Country” is a member country of
the Financial Action Task Force on Money Laundering. As of September
1, 2008, the FATF Countries are: Argentina, Australia, Austria, Belgium, Brazil,
Canada, China, Denmark, Finland, France, Germany, Greece, Hong Kong, Iceland,
Ireland, Italy, Japan, Luxembourg, Mexico, Kingdom of the Netherlands, New
Zealand, Norway, Portugal, Russian Federation, Singapore, South Africa, Spain,
Sweden, Switzerland, Turkey, the United Kingdom and the United
States. For a current list of FATF Countries see
▇▇▇▇://▇▇▇.▇▇▇▇-▇▇▇▇.▇▇▇.
| DMR Mortgage Opportunity
Fund LP
Subscription
and Capital Commitment Agreement
For
U.S. investors only
|
Execution Pages-3
|
The wire
instructions provided above may be amended by written notice, signed by an
Authorized Signatory and delivered to the Fund at the address provided
herein.
(c) Anti-Money
Laundering Confirmation:
Is the
Subscriber a customer of the bank identified immediately above?
|
r Yes
|
q No
|
If the
answer is “No,” please provide the documentation requested under Section 8(d) of
these Execution Pages and contact Declaration for additional information that
may be required from the Subscriber.
Is the
Subscriber’s subscription payment to be made by bank-to-bank transfer from an
account other than the
account detailed above:
|
r Yes
|
q No
|
|
Bank
Name:
|
|
|
Bank
Address:
|
|
|
ABA,
SWIFT or CHIPS No.:
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Account
Name:
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Account
No.:
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For
Further Credit:
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Reference:
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If the
bank identified immediately above is not located in the United States or another
FATF Country, please provide the documentation requested under Section 8(d) of
these Execution Pages and contact Declaration for any additional information
that may be required from the Subscriber.
Is the
Subscriber a customer of the bank identified immediately above?
|
r Yes
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q No
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If the
answer is “No,” please contact Declaration for additional information that may
be required from the Subscriber.
(d) Documentation:
If the
Subscriber is not a customer of the bank(s) identified in Sections 8(b) or 8(c)
of these Execution Pages or the bank(s) identified in Sections 8(b) or 8(c) of
these Execution Pages are not located in a FATF Country, please provide copies
of the following documents for each Subscriber:
| DMR
Mortgage Opportunity Fund LP
Subscription
and Capital Commitment Agreement
For
U.S. investors only
|
Execution Pages-4
|
Entity
Documentation
|
|
¨
|
A
copy of any document authorizing or governing its investment policies
(e.g.,
resolutions of the board of
directors);
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AND
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¨
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If
a corporation: a
copy of its articles of incorporation and
by-laws;
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¨
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If
a partnership,
limited
partnership or limited liability
partnership: a copy of its formation documents, partnership
agreement and/or other governing
agreement;
|
|
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¨
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If
a limited
liability company: a copy of its articles of
organization and operating
agreement;
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|
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¨
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If
a trust:
a copy of its declaration of trust or other governing instrument; or
|
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¨
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If
any other type
of entity: a copy of its formation documents and
governing agreements.
|
Authorized Signatory
Documentation. For each Authorized Signatory listed in Section
8(a) of these Execution Pages:
|
|
¨
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Document
confirming authorization to effect transactions on behalf of the
Subscriber (e.g.,
board resolutions, power of attorney or
certification)
|
(e) Disclosure
Authorization:
By
executing this Subscription and Capital Commitment Agreement, the Subscriber
authorizes the disclosure of information regarding the Subscriber’s account to
the Fund, Declaration, any Declaration Party and/or the Placement Agent as well
as their respective representatives and legal counsel, as well as to any
governmental authority, self-regulatory organization, or to any other Person, to
the extent required by law, regulation or any legal procedure.
|
9.
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Investor
Categories
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Please
check the box below that best describes the nature (and not the corporate
structure) of the Subscriber’s business.
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rA “fund of funds”
that permits redemptions
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rA commercial bank,
investment bank or other financial institution that is not an insurance
company*
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rA “fund of funds”
that does not permit redemptions
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rA supranational
entity
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rAn insurance
company*
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rA governmental
entity
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rAn endowment or
foundation
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rAny investment by
or for the benefit of a natural person, or the family of a natural
person
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rAn employee
benefit plan
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rA special purpose
vehicle (structured products)
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▇▇▇▇▇▇ (please
specify): ____________
|
* Other
than a fund of funds managed by such listed entity
| DMR
Mortgage Opportunity Fund LP
Subscription
and Capital Commitment Agreement
For
U.S. investors only
|
Execution Pages-5
|
|
10.
|
Optional Limitation on
Voting Rights
|
The
Subscriber elects to have the maximum Fund Percentage for voting purposes
attributable to its Interest limited to no more than the following:
__%
IF
THE PERCENTAGE LISTED ABOVE IS LEFT BLANK, THERE WILL BE NO LIMIT ON THE
SUBSCRIBER’S FUND PERCENTAGE FOR VOTING PURPOSES.
__________________
NO
CAPITAL COMMITMENTS SHOULD BE SENT BEFORE THE SUBSCRIBER IS NOTIFIED THAT THIS
SUBSCRIPTION AND CAPITAL COMMITMENT AGREEMENT HAS BEEN ACCEPTED.
__________________
| DMR
Mortgage Opportunity Fund LP
Subscription
and Capital Commitment Agreement
For
U.S. investors only
|
Execution Pages-6
|
IN WITNESS WHEREOF, the undersigned have hereunto duly set their hands by their representatives ▇▇▇▇▇▇▇ ▇▇▇▇ authorized, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound.
|
Entity
Subscription
|
|
|
(Name
of Subscriber)
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Dated
_____________, _____
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By
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|
Title:
|
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(Trustee,
partner or authorized corporate
officer)
|
|
DMR
MORTGAGE OPPORTUNITY FUND LP
By: Declaration Management &
Research LLC
its General Partner
By:
Name:
Title:
|
Name
of Trustees or Other Fiduciaries Exercising Investment
Discretion
with Respect to Employee Benefit Plan or Trust
|
Signature
|
Printed Name
|
Title
|
||
| DMR
Mortgage Opportunity Fund LP
Subscription
and Capital Commitment Agreement
For
U.S. investors only
|
Execution Pages-7
|
Schedule
A
CAPITAL
CALL NOTICE
TO: [investor name]
|
FROM:
|
Declaration
Management & Research LLC, as general partner (“General Partner”) of
DMR Mortgage Opportunity Fund LP (the
“Fund”)
|
DATE: [insert date of
notice]
|
SUBJECT:
|
Notice
of Capital Contribution to the Fund
|
Pursuant
to Section 3.1 of the Second Amended and Restated Limited Partnership Agreement
of the Fund, dated as of September 22, 2008 (the “Limited Partnership
Agreement”), Declaration is hereby requesting that you, as a Limited Partner of
the Fund, make a Capital Contribution to the Fund as described below (all
capitalized terms used herein but not defined shall have the meanings assigned
to them in the Limited Partnership Agreement). Your required Capital
Contribution is as follows:
Drawdown
Date:
[ ]
Current
Undrawn Capital
Commitment: [ ]
Capital
Contribution Requested
hereby: [ ]
[([ ]% of Capital Commitment)]
After
Funding, Remaining Unfunded
Capital
Commitment:
[ ]
This
Capital Contribution is due on the Drawdown Date specified above. You
must make arrangements for this Capital Contribution to be satisfied by wire
transfer to the Fund’s bank account by no later than [8:00] a.m., New York time,
on the Drawdown Date in accordance with the following wire
instructions:
Wire
Instructions
Bank
Name: LaSalle
Bank National Association
ABA
Number: 071000505
Account
Name: Trust
GL
Account
Number: 2090067
Further Credit
to: ACCT#
725402.2
RE: DMR Mortgage Opportunity Fund LP
Sub/Red - (insert
name of investor)
Attn: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
If you
have any questions, please contact ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III.
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇,
Fax: (▇▇▇) ▇▇▇-▇▇▇▇,
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
DMR
MORTGAGE OPPORTUNITY FUND LP
c/o
Declaration Management & Research LLC
18▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
18▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
| DMR
Mortgage Opportunity Fund LP
Subscription
and Capital Commitment Agreement
For
U.S. investors only
|
Schedule
A-1
|
Schedule
B
INSTITUTIONAL
ACCREDITED INVESTOR STATUS
THE
SUBSCRIBER WILL BE REQUIRED TO INDICATE ON THE EXECUTION PAGES
WHETHER
THE
SUBSCRIBER IS AN INSTITUTIONAL “ACCREDITED INVESTOR,” AS DEFINED IN REGULATION D
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”).
CORPORATIONS, PARTNERSHIPS
OR LIMITED LIABILITY COMPANIES
a. The
Subscriber has total assets in excess of $5,000,000 and was not formed for the
specific purpose of investing in the Fund.
or
b. All
of the equity owners, unit owners and participants of the Subscriber are
Accredited Investors.
TRUSTS
c. The
Subscriber has total assets in excess of $5,000,000 and was not formed for the
specific purpose of investing in the Fund.
or
d. The
Subscriber is a bank as defined in Section 3(a)(2) of the Securities Act, is
acting in its fiduciary capacity as trustee and is subscribing for the Interest
on behalf of a trust which qualifies as an Accredited
Investor. (“Bank” is defined in Section 3(a)(2) of the Securities Act
as “any national bank, or any banking institution organized under the laws of
any State . . . the business of which is substantially confined to banking and
is supervised by the State or territorial banking commission or similar
official.”)
or
e. The
Subscriber is a revocable trust which may be amended or revoked at any time by
the grantors thereof, and all of the grantors are Accredited
Investors.
BANKS
f. The
Subscriber is a bank as defined in Section 3(a)(2) of the Securities Act acting
in its individual capacity.
INSURANCE
COMPANIES
g. The
Subscriber is an insurance company as defined in Section 2(13) of the Securities
Act acting in its individual capacity. (“Insurance company” is
defined in Section 2(13) of the Securities Act as “a company which is organized
as an insurance company whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks underwritten by insurance
companies, and which is subject to supervision by the insurance commissioner, or
a similar official or agency, of a State.”)
* * *
| DMR
Mortgage Opportunity Fund LP
Subscription
and Capital Commitment Agreement
For
U.S. investors only
|
Schedule
B-1
|
Schedule
C
[See
attached Form W-9]
| DMR
Mortgage Opportunity Fund LP
Subscription
and Capital Commitment Agreement
For
U.S. investors only
|
Schedule
C-1
|