EXHIBIT 10.13
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Subscription Agreement") is made and
entered into as of February 12, 2001, among Guaranty Mortgage Services, LLC, a
limited liability company organized under the laws of the State of Delaware,(the
Company) Chestatee Residential Mortgage, Inc, a Georgia Corporation, Guaranty
First Mortgage, LLC, a Georgia limited liability company ("GFM") and Shelter
Mortgage Corporation, a Wisconsin corporation ("SMC"). "CSB" and "GFM" shall
collectively be referred to as members.
R E C I T A L S
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A. Members are affiliated with a residential real estate related
business in the state of Georgia.
B. The Company has been formed in order to provide mortgage
lending and mortgage origination services through separate operating divisions,
each of which has been established for a member of the Company, all as more
particularly set forth in that certain Operating Agreement of the Company dated
as of February 18, 1998 (the "Operating Agreement").
C. The Members desire to acquire a Member Interest in the Company in
order to be able to offer mortgage lending services and mortgage loan related
products to its customers and clients.
D. It is a condition to the issuance of a Member Interest to Members
and the creation of an operating division through which the Company will offer
mortgage lending services and mortgage loan related products to customers and
clients of Members that Members enter into this Agreement. All capitalized terms
used in this Subscription Agreement shall have the meanings set forth in the
Operating Agreement, unless otherwise specified herein.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, and subject to the conditions set forth herein, the
parties agree as follows:
1. Purchase and Sale. On the terms and subject to the conditions set
forth herein, the Company agrees to sell to SMC and Members, and each of SMC and
Members agree to purchase from the Company, a Member Interest in the "Member
Operating Division" (as defined in Section 4 hereof). Each Member Interest so
issued shall represent Member's and SMC's respective rights to receive certain
allocations of income and loss as described more particularly in the Operating
Agreement. Upon execution of each of the Operating Agreement and this
Subscription Agreement, Member shall become a member of the Company.
2. Purchase Price. The purchase price for the Members Interests shall
be $30,000, and allocated pro rata among SMC and Members in accordance with the
percentages set forth on Exhibit "A." The obligations to pay the purchase price
are several and not joint; provided, that SMC (on behalf of the Company) shall
be entitled to seek any legally available remedy to enforce Member's obligation
to pay its share of the purchase price.
3. Effective Time. The "Effective Time" of this Subscription Agreement
shall be as of the close of business on the date all approvals and
authorizations of all licensing authorities, deemed necessary or appropriate by
SMC in the exercise of its discretion, have been obtained.
4. Creation of Operating Divisions. For legal and accounting purposes
only, the Company has been divided into a number of operating divisions (each an
"Operating Division") equal to the number of Members of the Company, and has
issued a separate class of Member Interests for each Operating Division. The
Company has established and capitalized a separate Operating Division for Member
which shall operate under the name "Guaranty Mortgage Services" (the "Member
Operating Division").
4.1. Allocation of Economic Interests. The allocation of certain
items of income and loss provided to Members and SMC shall be pro rata based
upon the percentages set forth on Exhibit "A" hereto and the provisions of the
Operating Agreement.
4.2. Information Rights; Management and Voting Rights. As more
fully set forth herein and in the Operating Agreement, Member acknowledges and
agrees that all Information Rights and all Management and Voting Rights in the
Member Operating Division shall be held by SMC.
4.3. Division Offices. For the purpose of enabling the Company to
originate Mortgage Loans, Members shall make available to the Company the
offices located at the address set forth on Exhibit "A" hereto.
5. Further Agreements of Members and SMC. Each of the Members and SMC
shall, upon the request of the Company, from time to time execute and deliver to
the Company such further bills of sales, endorsements and other good and
sufficient instruments of title, conveyance, transfer and assignment as may be
reasonably requested by the Company to carry out the intent and purposes hereof.
6. Representations and Warranties by the Members.
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6.1. Operating Budget. The Members acknowledges that (i) they have
received, have read and understands the provisions of the operating budget for
the first fiscal year of the Operating Division of the Company (the "Operating
Budget"), (ii) that the Members will have an Economic Interest as defined in the
Operating Agreement, (iii) that the Members hereby approve the Operating Budget,
and (iv) that the Operating Budget will remain the Operating Budget for the
Company until a new operating budget is approved in accordance with the
Operating Agreement.
6.2. Restrictions on Transfer. The Members acknowledge that it
cannot transfer its interest in the Company except in accordance with the
Operating Agreement and all applicable securities laws.
6.3. Restrictions on Information. The Members acknowledge that
information regarding other operating divisions of the Company, financial and
otherwise, is proprietary and constitutes trade secrets of other members and
access to such information shall not be available to the Members except to the
extent mandated by Section 18-305 of the Delaware General Corporation Law. The
Members shall have access to such information regarding the Member Operating
Division and the Company as the Managing Member determines to be necessary to
the conduct of the Members Operating Division.
6.4. Material Inducement. The Members hereby make the following
agreements with, and, representations and warranties to the Company, each of
which is a material inducement to the execution of this Subscription Agreement
by the Company, all of which are being relied upon by the Company, and each of
which are true and complete in all respects as of the date hereof through and
until the termination of this Subscription Agreement:
(a) The Members are corporations or limited liability
companies, validly existing and in good standing under the laws of the state of
Georgia, and the Member have the full power and authority to enter into this
Subscription Agreement;
(b) The Members are duly licensed and qualified to conduct and
transact the business as contemplated under the Operating Agreement;
(c) The Members shall use their best efforts to cause
affiliates and employees of the Members to, cooperate fully with the Members and
to use their best efforts in fulfilling and achieving the objectives and
obligations of the Members under this Subscription Agreement;
(d) Upon execution and delivery, this Subscription Agreement
shall be binding upon and enforceable against the Members in accordance with its
terms and provisions; the Members are not a party to any agreement, covenant,
judgment, decree, order or proscription of any kind or nature that could in any
way preclude or restrict the Members from carrying out the transactions and
agreements covered or contemplated hereby and performing in full its duties and
obligations arising hereunder;
(e) The Members are not subject to any criminal or civil
action, governmental investigation, administrative or other proceeding, nor has
it been threatened with any such action, investigation or proceeding;
(f) The Members are in full compliance in all respects with
all rules and regulations of all real estate and mortgage banking regulatory and
supervisory agencies as are applicable to the Members. The Members are duly
qualified and licensed pursuant to any and all applicable real estate mortgage
lending laws and regulations, and said license is in good standing and is not
subject to any restriction or limitation;
(g) The execution and delivery of this Subscription Agreement,
and the performance of its obligations hereunder, each have been duly authorized
by and on the part of the Members; and
(h) The Members agree and covenants that they will not
solicit, seek or cause to hire, contract, commission or in any other way employ
the services of any employee of the Company and its Associates for the period of
duration of the Operating Agreement and, in the event of a Dissociation Event,
as defined in the Operating Agreement, for a period of not less than 2 years
from the date of such Dissociation Event.
6.5. Member Interest. The Members further acknowledges the
following:
(a) The Members Interests are speculative investments which
involve a substantial degree of risk of loss by the Members of the Member's
entire investment in the Company and that the Members understand and recognizes
the risk factors related to the purchase of the Member Interests;
(b) The Company is newly organized and has no financial or
operating history;
(c) There are substantial restrictions on the transferability
of Member Interests pursuant to this Subscription Agreement; the Member
Interests will not be, and Members in the Company have no rights to require that
the Member Interests be, registered under the Securities Act of 1933 or any
state securities laws; there is no public market for the Member Interests and
none is expected to develop; and, accordingly, it may not be possible for the
Members to liquidate their Member Interest in the Company;
(d) To the extent applicable, a restrictive legend will be
placed on each certificate or other document delivered which represents the
Member Interest which will state that the Member Interest has not been
registered under the Securities Act of 1933, and such legend will set forth or
refer to the restrictions on the transferability and sale of such Member
Interest;
(e) No federal or state agency has made any findings as to the
fairness of the terms of the Operating Agreement, this Subscription Agreement or
issuance of the Member Interests; and
(f) Any forecasts or predictions as to the Company's future
performance are based on estimates, assumptions and projections which may be
arbitrary and may prove to be materially incorrect; and there can be no
assurance that actual results will correspond with the results contemplated by
such forecasts.
6.6. Investment.
(a) The Members have relied only on the information contained
in the Operating Agreement and this Subscription Agreement, and no written or
oral representation or information that is in any way inconsistent with the
Operating Agreement or this Subscription Agreement has been made or furnished to
the Members.
(b) The Members are capable of bearing the high degree of
economic risk of this venture including, but not limited to, the possibility of
the complete loss of all contributed capital and the lack of a public market
which may make it impossible to liquidate readily the investment.
(c) The Members have knowledge and experience in financial and
business matters, is capable of evaluating the merits and risks of an investment
in the Company and its proposed activities and has considered carefully the
financial and tax consequences of an investment in the Company, and has
determined that the Member Interest is a suitable investment.
(d) The Member Interest is being acquired solely for the
Members' own account, for investment, and is not being purchased with a view to
or for the resale, distribution, subdivision, or fractionalization thereof; and
the Members agree that the Member Interest will not be sold without compliance
with applicable securities laws and without full compliance with the terms of
the Operating Agreement and this Subscription Agreement.
(e) The Members have been advised to consult with an attorney
regarding all legal matters concerning the Company and the tax consequences of
participating in the Company, and has done so, to the extent such Member
considers necessary.
(f) The Members acknowledges that this transaction is subject
to Regulation D of the Securities Act of 1933, as amended (the "Act"), and the
Blue Sky Laws of the State of Georgia, and does therefore affirm that it is an
"Accredited Investor" as defined in the Act and as defined in the Blue Sky Laws
set forth on Schedule 1 attached hereto.
(g) There can be no assurance that the Internal Revenue Code
or the regulations there under will not be amended or interpreted in the future
so as to deprive the Company and its Members of some or all of the tax benefits
they might now receive, or that some of the deductions claimed by the Company or
the allocations of items of income, gain, loss, deduction or credit among the
Members may not be challenged by the Internal Revenue Service.
(h) The address set forth on this Subscription Agreement is
the true and correct address of the Members, and the Members have no present
intention of becoming a resident of any other state or jurisdiction.
(i) The Members have not borrowed the money to contribute to
the Company hereby.
(j) The Members have full power and capacity to enter into,
execute and deliver this Subscription Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated by this Subscription
Agreement.
(k) This Subscription Agreement constitutes the valid and
binding obligation of the Members, enforceable in accordance with its terms,
except to the extent enforceability is limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally from time to time in effect and the availability of
equitable remedies (regardless of whether enforceability is considered in a
proceeding at law or in equity).
6.7. Covenants of Member. Members hereby covenant and agree that
Members shall, during the period its Member Operating Division is conducting
business, deliver to each customer of the Company (a "Member Customer") an
Affiliated Business Arrangement Disclosure Statement (the "ABA Notice") in the
form attached hereto as Exhibit "B" at such time as the Member Customer is
referred to, or made aware of the existence of the Company, and its products and
services, and to obtain an executed copy of the ABA Notice, in the form so
delivered, from each such Member Customer. In connection herewith, Members
acknowledge and agree that unless such ABA Notice is delivered and executed by
the Members' Customer, Members' shall forfeit all right to its Members Interests
in the Company, as defined in Section 1.42 of the Operating Agreement, and all
right and interest in its profit and loss from the Operating Division of the
Company, in regard to such Members' Customer, provided that all expenses
incurred in connection with a loan made or proposed to be made to such Members'
Customer shall be charged to such Member's Operating Division.
7. Representations and Warranties of the Company. AT NO TIME has it
been expressly or implicitly represented, guaranteed, or warranted to the
Members by the Company, SMC, the agents and employees of SMC, or any other
person that:
(a) except as may be required by relevant state securities
laws, the Members will or will not have to remain as owner of its Member
Interest an exact or approximate length of time;
(b) a certain percentage of profit and/or amount or type of
consideration will be realized as a result of this investment;
(c) past performance or experience on the part of SMC or its
affiliates or any other person, including without limitation, their respective
salesmen, associates, brokers, agents or employees, in any way indicates the
predictable results of operations or future financial condition of the Company
or return on investment to the Members;
(d) any cash distributions from the Company's operations or
otherwise will be made to Members by any specific date or will be made at all;
and
(e) any specific tax benefits will accrue as a result of the
Subscription to the Company.
8. Miscellaneous.
8.1. Severability. Should any Section or any part of a Section
within this Subscription Agreement be rendered void, invalid or unenforceable by
any court of law for any reason, such invalidity or unenforceability shall not
void or render invalid or unenforceable any other Section or part of a Section
in this Subscription Agreement.
8.2. Governing Law. THE TERMS OF THIS SUBSCRIPTION AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS MADE WITHIN, AND TO BE PERFORMED WITHIN, SUCH STATE,
EXCLUDING CHOICE OF LAW PRINCIPLES OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
8.3. No Adverse Construction. The rule that a contract is to be
construed against the party drafting the contract is hereby waived, and shall
have no applicability in construing this Subscription Agreement or the terms of
this Subscription Agreement.
8.4. Counterparts. This Subscription Agreement may be executed in
one or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. Each counterpart
may consist of a number of copies hereof, each signed by less than all, but
together signed by all, of the parties hereto. The parties may transmit by
facsimile executed copies of the signature pages of this Subscription Agreement
to all other parties. Such transmission shall constitute a representation and
warranty of the transmitter that the execution and delivery of this Subscription
Agreement has been authorized by it, subject only to the execution and delivery
of this Subscription Agreement by all other parties. Each party transmitting a
signature page by facsimile shall promptly forward signed original counterparts
to the other parties to this Subscription Agreement.
8.5. Costs and Attorneys' Fees. In the event that any action,
suit, or other proceeding is instituted concerning or arising out of this
Subscription Agreement, the prevailing party shall recover all of such party's
costs and attorneys' fees incurred in each and every such action, suit, or other
proceeding, including any and all appeals or petitions therefrom. As used
herein, "attorneys' fees" shall mean the full and actual costs of any legal
services actually rendered in connection with the matters involved, calculated
on the basis of the usual fee charged by the attorneys performing such services,
and shall not be limited to "reasonable attorneys' fees" as defined by any
statute or rule of court.
8.6. Successors and Assigns. All rights, covenants and agreements
of the parties contained in this Subscription Agreement shall be binding upon
and inure to the benefit of their respective successors and assigns. Except as
otherwise specifically set forth herein, nothing in this Subscription Agreement,
expressed or implied, is intended to confer on any person other than the parties
to this Subscription Agreement or their respective successors and assigns any
rights, remedies, obligations or liabilities under or by reason of this
Subscription Agreement.
8.7. Headings; Other. The headings contained in this Subscription
Agreement and any Exhibit or Schedule hereto are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Subscription
Agreement. All Exhibits and Schedules annexed hereto and referred to herein are
hereby incorporated in and made a part of this Subscription Agreement as set
forth in full herein. Any capitalized terms used in any Exhibit or Schedule but
not otherwise defined therein, shall have the meaning as defined in this
Subscription Agreement.
8.8. Amendments and Waivers. Neither this Subscription Agreement
nor any term hereof may be changed, waived, discharged or terminated orally or
in writing, except that any term of this Subscription Agreement may be amended
and the observance of any such term may be waived (either generally or in a
particular instance and either retroactively or prospectively) with (but only
with) the written consent of all of the parties hereto; provided, however, that
no such amendment or waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent therein. No delay or omission to
exercise any right, power or remedy accruing to any party hereto shall impair
any such right, power or remedy of such party nor be construed to be a waiver of
any such right, power or remedy nor constitute any course of dealing or
performance hereunder.
8.9. Notice. Any notice or demand which either the Company, SMC or
any Member is required, or may desire, to give to the other shall be in writing
and shall be given by addressing the same to the other at the address
hereinafter set forth, or at such other address as may be designated in writing
by any such party by notice given to the other in the manner prescribed in this
Section 8.9 and shall be deemed given by being so addressed and (i) delivered
personally, (ii) deposited postage prepaid in the United States mail, (iii)
delivered to a telegraph or cable company toll prepaid or (iv) sent by telecopy
(or telefax), and the date of said personal delivery, deposit, telegraphing or
the sending of such telecopy shall be the date of the giving of such notice;
provided, however, that any notice alleging a default must be given by the means
set forth in (i), (iii) or (iv) above.
Any notice or demand to the Company, GFM or SMC shall be addressed as follows:
Shelter Mortgage Company, L.L.C.
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxx, Esq.
Telephone: 414/000-0000
Facsimile: 414/362-4634
with a copy to:
Guaranty Mortgage Services
0000 Xxxxxxx Xxxxxxxxxx Xxx, Xxxxx X
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Any notice or demand to Chestatee State Bank shall be addressed as follows:
Chestatee Resiential Mortgage, Inc 1(706)216-2265
Attn: Xxxxxx Xxxxxx CRM
0000 Xxxxxxx 00 Xxxx
Xxxxxxxxxxx, XX 00000
8.10. Entire Agreement. This Subscription Agreement, the Operating
Agreement, the Supplement, if any, and the attached Exhibits and Schedules
together contain the entire understanding of the parties, and there are no
further or other agreements or understandings, written or oral, in effect
between the parties relating to the subject matter hereof unless expressly
referred to herein. No party to this Subscription Agreement makes any
representation or warranty except as expressly set forth herein.
8.11. Consent to Admission. For purposes of Section 5.3 of the
Operating Agreement, the execution of this Subscription Agreement by SMC shall
constitute an election to admit an Additional Member by the Managing Member and
SMC shall cause Exhibit "A" to the Operating Agreement to be amended
accordingly.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Subscription Agreement as of the date first above written.
"COMPANY"
GUARANTY MORTGAGE SERVICES, LLC
By: Shelter Mortgage Corporation
Managing Member
By: ___________________________
Xxxx Xxxx Belconis, President
"SMC"
SHELTER MORTGAGE CORPORATION,
a Wisconsin corporation
By: /s/ Xxxx Xxxx Xxxxxxxx
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Xxxx Xxxx Belconis, President
"GFM"
GUARANTY FIRST MORTGAGE, LLC,
a Georgia limited liability company
By: /s/ Xxxxx Xxxx
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Xxxxxx Xxxx, President
Chestatee Residential Mortgage, Inc
a Georgia Corporation
By: /s/ J. Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx CRM
Its: President and CEO
EXHIBIT A
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MEMBER OFFICE ADDRESS INITIAL CAPITAL AMOUNT DUE AND PERCENTAGE
------ -------------- ---------------- --------------- ----------
CONTRIBUTION PAYABLE PROFITS/LOSSES
------------ ------- --------------
Shelter Mortgage 0000 Xxxx Xxxxx Xxxx Xxxx $ 7,500 $
Corporation Xxxxx Xxxx, XX 00000
Guaranty First 0000 Xxxxxxxxx Xxxx., $ 7,500 $
Mortgage Xxx. 000
Xxxxxxx, XX 00000
Chestatee 0000 Xxxxxxx 00 Xxxx $15,000 $
Residential Xxxxxxxxxxx, XX 00000
Mortgage, Inc
EXHIBIT B
Affiliated Business Arrangement Disclosure Statement Format
NOTICE
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To: Property:
--------------------
From: Guaranty Mortgage Services, L.L.C. Date:
This is to give you notice that Chestatee Residential Mortgage, Inc , a
Georgia Corporation ("Member") has a business relationship with Guaranty
Mortgage Services, L.L.C. ("GMS"). Chestatee Residential Mortgage, Inc is a
member of GMS and has a 50% interest in certain profits and losses that may be
generated from your loan. Because of this relationship, this referral may
provide Members a financial or other benefit.
A. Set forth below is the estimated charge or range of charges for the
settlement services listed. You are NOT required to use the listed provider(s)
as a condition for [settlement of your loan on] [or] [purchase, sale, or
refinance of] the subject property. THERE ARE FREQUENTLY OTHER SETTLEMENT
SERVICE PROVIDERS AVAILABLE WITH SIMILAR SERVICES. YOU ARE FREE TO SHOP AROUND
TO DETERMINE THAT YOU ARE RECEIVING THE BEST SERVICES AND THE BEST RATE FOR
THESE SERVICES.
Provider and settlement service Charge or range of charges
--------------------- : $
--------------------- : $
--------------------- : $
B. _______ Set forth below is the estimated charge or range of charges
for the settlement services of an attorney, credit reporting agency, or real
estate appraiser that we, as your lender, will require on this property, to
represent our interests in the transaction.
Provider and settlement service Charge or range of charges
--------------------- : $
--------------------- : $
--------------------- : $
ACKNOWLEDGMENT
I/we have read this disclosure form, and understand that ____________
is referring me/us to purchase the above-described settlement service(s) and may
receive a financial or other benefit as the result of this referral.
[Signature]
