SELLING AGREEMENT
SELLING AGREEMENT
The purpose and intent of this
agreement is to establish terms and conditions of a Selling Agreement
(“Agreement”) between ABC, Inc. (“ABC”), and Investors Mortgage Holdings, Inc.
(“IMH”) whereby Registered Representatives (“Brokers”) through ABC shall locate
and introduce clients to IMH and promote the sale of securities offered through
a private placement memorandum offered through an affiliate of IMH, namely IMH
Secured Loan Fund, LLC.
I. ABC
Warranties and Representations:
A. ABC
is a corporation duly incorporated and validly existing in the State of
Florida.
B. ABC
is a member of the Financial Industry Regulatory Authority (FINRA) and is
presently in good standing with FINRA.
C. ABC
is registered as a broker/dealer with the Securities & Exchange Commission
(SEC).
II. Brokers Warranties and
Representations:
A. Brokers
are licensed by FINRA and have registered ABC as their
broker/dealer.
B. Brokers
are registered or licensed to sell securities in all states where Brokers shall
transact business.
III. IMH Warranties and
Representations:
A. IMH
is a corporation duly incorporated and validly existing in the State of Arizona
and is the manager of IMH Secured Loan Fund, LLC (the “LLC”).
B. IMH
Secured Loan Fund, LLC has circulated a private placement memorandum (the
“Memorandum”) by which IMH seeks to sell units (the “Units”) of the LLC to
investors at a price of $10,000.00 per unit under Regulation §230 Regulation D
of the Securities and Exchange Act of 1933, as amended (the
“Act”). The offering is restricted to “Accredited Investors” as
defined under Regulation D of the Act.
C. IMH
represents and warrants that the LLC has prepared the Memorandum in accordance
with the Act and the rules and regulations promulgated thereunder (including
Regulation D) set forth in the Act. IMH has provided ABC and Brokers
with a copy of the Memorandum and warrants that all information set forth in
such Memorandum is true and accurate and that ABC and Brokers may rely on such
information when offering the Units to their clients or otherwise introducing
their clients to IMH for participation in the LLC. The
representations and warranties set forth in the Memorandum regarding its
business and the offering are incorporated herein by this
reference.
D. IMH
further warrants for itself and the LLC, that they shall at all times comply
with the requirements of applicable federal and state securities and banking
laws in the states in which they operate.
A. Intent. ABC,
Brokers and IMH acknowledge that the purpose and intent of this Agreement is to
establish a selling agreement between ABC and IMH whereby Brokers, through ABC,
can sell the Units offered in the Memorandum in accordance with applicable
securities laws. Accordingly, Brokers remain independent contractors
of ABC, and shall not at any time be deemed employees or affiliates of
IMH.
B. Brokers. Brokers
agree to conduct business as solicitors of IMH securities and independent
contractors of ABC. ABC/Brokers shall have exclusive control of the
manner in which the offer and sales are performed and shall pay all expenses
associated with the operation of their business. ABC/Brokers shall
comply with all rules and regulations of the SEC, FINRA, and any states in which
offers or sales are conducted. The activity of the Brokers shall be supervised
by ABC, which reserves the right to discontinue its relationship with Brokers
and/or this Selling Agreement at any time at its sole discretion.
C. Income Tax.
ABC/Brokers shall be solely liable for payment of their income tax,
self-employment tax and any other applicable taxes. ABC/Brokers shall
also be solely responsible for paying the applicable federal and state taxes for
personnel employed by ABC/Brokers in the operation of their
business.
D. Limitation of
Authority. ABC/Brokers agree that they have no authority to
negotiate, commit, bind and/or appear in any manner to negotiate for, commit or
bind IMH in any way. Any payments made by IMH to ABC/Brokers pursuant
to this agreement shall be deemed to completely compensate ABC/Brokers for any
and all costs associated with their employees, their equipment and any other
expense they incur in connection with performance of ABC/Broker’s work
hereunder.
V. ABC/Brokers
Duties & Responsibilities:
A. Agreement to Sell
Securities. On the basis of the representations, warranties
and agreements by IMH herein, ABC and Brokers agree to use best efforts to
promote and sell the Units to their clients whom they reasonably believe to meet
the suitability standards set forth in the
Memorandum. Notwithstanding the above, IMH shall have final
responsibility for determining any potential purchaser’s suitability for the
investment in the Units.
B. Sale of
Securities. ABC/Brokers shall not sell securities in any state
unless ABC and Brokers are registered in that state or are within the applicable
registration exemption for the securities in that state. ABC/Brokers shall only
offer securities in states approved by IMH.
C. ABC/Brokers
Statements. ABC/Brokers shall not make any verbal or written
statements regarding the securities offered by IMH that are untrue, misleading,
or that omit material facts.
D.
Suitability. ABC/Brokers
shall offer and sell securities only to accredited investors with whom
ABC/Brokers has a sufficient pre-existing relationship to reasonably apply
applicable suitability standards as determined on a case per case
basis.
VI. Compensation
A. Broker
Commission. IMH shall pay ABC a commission equal to two
percent (2.00%) of the total dollar amount invested in the Units and sold by
ABC/Brokers to their clients. IMH shall further pay the same
commission for additional amounts invested by ABC/Brokers’ clients after the
initial purchase but shall exclude any dividends received and reinvested by said
clients. If ABC/Broker’s clients liquidate their investment and then
re-invest the liquidated amount at a later date, ABC/Brokers will not be
compensated a second time. If client subsequently reinvests with a
greater amount than that which was liquidated prior, ABC/Brokers will be
compensated on the difference according to the terms stated in this
Agreement. If a client withdraws all or a portion of their investment
and then, more than twelve months after the date that funds were withdrawn,
reinvests any amount, then a selling commission of two percent (2.00%) shall be
paid on the full new amount invested by said xxxxxx
X. Additional Compensation for
Broker. In addition, IMH will compensate ABC/Broker by
paying ABC/Broker a trail of 25 bps (0.25%) annualized, paid semiannually and
commencing upon completion of the sixth month in which invested capital remains
with the Fund. This trail shall be paid in perpetuity until investor
funds, to which trail is related, have been withdrawn.
C. Timing of Commission
Payment. Commissions shall be paid within thirty days after
acceptance of a completed subscription agreement and the tender of the
appropriate funds to purchase the securities from a client solicited by
ABC/Brokers.
VII. Non-Circumvent/Non-Solicit
A. Non-Circumvent. IMH
shall not attempt to circumvent ABC/Brokers by contacting their clients without
ABC/Brokers written consent. IMH may contact clients while acting in
its normal course of business with respect to statements and account servicing
communications. IMH will not contact clients for the purposes of
solicitation, either direct or indirect, and will be bound by the terms of
paragraph VII B. below.
B. Non-Solicit. During
the term of this agreement and for three (3) years following the termination of
this agreement for any reason, IMH shall not solicit, entice away or divert from
Brokers any person or entity who was introduced to IMH by Brokers, without
Brokers’ written consent. In the event that IMH or an affiliate
person of IMH solicits a client of ABC/Brokers for a future fund, IMH agrees to
pay a commission to ABC/Broker the greater of two percent (2.00%) or, the sales
commission for selling group members that has been structured for that future
offering or fund.
C. IMH
shall not enter into any separate agreement, other than the Selling Agent
Agreement executed in concert with this Selling Agreement, with Brokers while
this agreement is in effect. This includes any employment, independent
contractor, consultant agreement and applies to IMH and/or any affiliate of
IMH.
VIII. Miscellaneous
Obligations of Parties:
A. Successors. This
Agreement shall not be assigned or transferred by ABC/Brokers without the prior
written consent of IMH.
B. Headings. The
captions and headings contained in this Agreement are solely for convenience of
reference and do not constitute a part of this Agreement.
C. Indulgences, Not
Waivers. Neither the failure, nor any delay, on the part of
either party hereto to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude, nor shall any waiver
of any right, remedy, power or privilege with respect to any other occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in
writing and is signed by the party asserted to have granted such
waiver.
D. Provisions
Severable. The provisions of this Agreement are independent of
and severable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in
part. Further, if a court of competent jurisdiction determines that
any provision of this Agreement is invalid or unenforceable as written, the
court may interpret, construe, rewrite or revise such provision, to the fullest
extent allowed by law, so as to make it valid and enforceable, consistent with
the intent of the parties hereto.
E. Construction. The
parties hereto acknowledge and agree that each party has had the opportunity to
participate in the drafting of this Agreement and the opportunity to have this
document reviewed by the respective legal counsel for the parties hereto and
that the rule construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be applied in interpreting this
Agreement. No inference in favor of, or against, any party shall be
drawn from the fact that one party has drafted any portion hereof.
F. Governing
Law. This Agreement shall be construed and governed by the law
of Arizona without giving effect to its conflicts of law
principals.
G. Relationship of
Parties. This Agreement is intended to constitute ABC/Brokers
as selling agent of IMH and nothing herein shall be deemed to constitute
ABC/Broker as employer/employee or independent contractor. There are
no agreements among the parties outside of this Selling Agreement.
H. Arbitration. Should
any dispute arise between the parties regarding the terms and conditions of this
Agreement, or the alleged breach thereof said dispute shall be referred to
arbitration under the auspices of FINRA in accordance with its Code of
Arbitration Procedure. Any hearing in this matter shall be held in
Phoenix, Arizona.
I. Attorney's
Fee. The prevailing party at any such arbitration shall be
awarded his/her reasonable attorney's fee as set by arbitrator(s) hearing the
matter.
J. Termination. This
Agreement may be terminated by ABC/Brokers or IMH at any time and for any reason
immediately upon receipt of written notice of such termination to the other
party. In the event of termination, ABC/Brokers shall nonetheless
receive commissions and additional compensation they are entitled to as earned
under the terms of paragraphs VI .A and VI .B above relating to the
purchase of Units by any client whom ABC/Brokers introduced or solicited on
behalf of IMH during the term of this Agreement.
K. Litigation and Arbitration
Expenses and Awards. If legal action of any nature, including
without limitation, arbitration, is initiated against ABC/Brokers by reason of
any alleged act, omission, misrepresentation, violation of any state or federal
securities laws, on the part of IMH, IMH agrees to indemnify, defend and hold
ABC and Brokers, each of their respective affiliates, officers, directors,
employees, shareholders and agents harmless from and against all losses, costs
and expenses that may arise therefrom. Said losses, costs and
expenses shall include, but not be limited to attorney's fees and disbursements,
court costs, settlements, judgments and awards.
L. Counterparts. This
Agreement may be executed in counterparts which, when taken together, shall
constitute one document. Facsimile signatures shall be deemed as
originals.
M. Integration. This
Agreement constitutes the entire agreement of the parties and supersedes any and
all prior agreements or understandings between them.
N. Indemnity
Clause. ABC and IMH shall indemnify each company including its
respective officers, directors, employees and agents, from and against all
liability, loss, cost or expense (including attorney’s fees) by reason of
liability arising out of or related to this agreement, whether caused by or
contributed to by IMH or ABC or any other party indemnified herein, unless
caused by the sole negligence of IMH or ABC.
IN
WITNESS WHEREOF the parties have executed this Agreement intending it to be
effective as of the ______ day of _________________, 2008.
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ABC,
Inc.
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Investors
Mortgage Holdings, Inc.
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_____________
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00000
X. Xxxxxxxxxx Xxxx
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_____________
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Xxxxx
000
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Xxxxxxxxxx,
XX 00000
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TIN:
________________
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_____________________
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_________
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______________________
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_________
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By:
_________________
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Date
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By:
Will Meris
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Date
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Title: _________
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Title:
President
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