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EXHIBIT 1.1
UNDERWRITING AGREEMENT
$10,000,000 OF ___% SUBORDINATED DEBENTURES, SERIES 1997
DUE JUNE 1, 2003
MCA FINANCIAL CORP.
MCA Financial Corp.
00000 Xxxxxxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
MCA FINANCIAL CORP., a Michigan corporation (the "Company"), proposes to
issue and sell (the "Offering") $10,000,000 in aggregate principal amount of
% Subordinated Debentures, Series 1997, due June 1, 2003 (the "Debentures").
The Debentures shall be offered to the public in multiples of $1,000. The
purpose of this Agreement is to confirm the arrangements between the Company
and the undersigned (the "Underwriter") with respect to the sale by the
Underwriter as agent for the Company, on a best efforts basis, of $10,000,000
of Debentures. The Agreement shall be effective on and after the effective
date of the Offering.
In consideration of the mutual agreements set forth herein, the parties
hereto agree as follows:
I. Representations, Warranties, and Agreements of the Company. The Company
represents and warrants to and agrees with the Underwriter that:
(1) A registration statement on Form S-1 (File No.__) with respect to the
Debentures has been prepared by the Company in conformity with the requirements
of the Securities Act of 1933, as amended (the "Act"), and the applicable rules
and regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Act and has been filed with the
Commission; and such amendments to such registration statement as may have been
required prior to the date hereof have been similarly prepared and filed with
the Commission. Copies of such registration statement and amendment or
amendments have been delivered to the Underwriter. The Company has prepared in
the same manner, and has filed a further amendment to such registration
statement incorporating a final form of prospectus or proposes to file a final
form of prospectus in accordance with the requirements of Rule 424 of the Rules
and Regulations. The Company will not at any time hereafter file any
amendments to such registration statement of which the Underwriter shall not
have been furnished a copy. The registration statement and prospectus, in the
forms in which they become effective, are herein respectively referred to as
the "Registration Statement" and the "Prospectus" provided, however, that if,
after the effectiveness of the Registration Statement, the Company shall file a
form of Prospectus under Rule 424 of the Rules and Regulations, the term
"Prospectus" shall refer to the form of Prospectus so filed.
(2) As of the date (the "Effective Date") that the Registration Statement
is declared effective by the Commission and at all times thereafter up to the
termination of the Offering, (i) the Registration Statement and Prospectus, and
any amendments or supplements thereto, will contain all statements and
information which are required to be included therein in accordance with the
Act
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and the Rules and Regulations and will in all material respects conform to
the requirements of the Act and the Rules and Regulations and (ii) neither the
Registration Statement nor the Prospectus, nor any amendment or supplement
thereto, will include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company makes no
representations and warranties as to information contained in or omitted from
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with information furnished to the
Company by the Underwriter specifically for use in the preparation thereof.
(3) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Michigan, with full power and
authority (corporate and other) to own, lease and operate its properties and
conduct its business as described in the Prospectus; this Agreement has been
duly authorized, executed and delivered by the Company and is binding upon the
Company in accordance with its terms; the performance of this Agreement and the
consummation of the transactions herein contemplated will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, (i) any indenture, mortgage, deed of trust, loan agreement,
bond, debenture, note agreement, or other evidence of indebtedness, lease,
contract, or other agreement or instrument to which the Company is a party or
by which the property of the Company is bound, (ii) the Company's articles of
incorporation or bylaws, or (iii) any statute or any order, rule, or regulation
of any court or governmental agency or body having jurisdiction over the
Company or over the properties of the Company; and no consent, approval,
authorization, or order of any court or governmental agency or body is required
for the consummation by the Company of the transactions on its part
contemplated herein, except such as may be required under the Act or under
state or other securities laws.
(4) Except as set forth in the Prospectus, there is not now and at or
prior to the termination of the Offering there will not be any action, suit, or
proceeding, at law or equity, against the Company by a private litigant, by any
federal, state or other commission, board or agency wherein any unfavorable
result or decision could materially adversely affect the business, property,
financial condition or income or earnings of the Company, or prevent
consummation of the transactions contemplated hereby; and there are no
contracts or documents of the Company which would be required to be filed as
exhibits to the Registration Statement by the Act or by the Rules and
Regulations which have not been filed as exhibits to the Registration
Statement.
(5) The Debentures to be issued and sold by the Company have been duly
authorized for issuance and sale to investors, pursuant to this Underwriting
Agreement and the Indenture, as amended, with First Union National Bank, as
Trustee and, when issued and delivered by the Company pursuant to this
Underwriting Agreement against payment therefor, such Debentures will
be duly and validly issued, fully paid, and nonassessable, and will constitute
legal, valid and binding obligations of the Company in accordance with their
terms.
(6) Xxxxx Xxxxxxxx Xxxxxx Xxxxxx and Xxxxx Xxxxxxxx, acting in a joint
venture
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capacity have audited and reviewed certain of the financial statements filed
with the Commission as a part of the Registration Statement and included in the
Prospectus, are independent public accountants within the meaning of the Act
and the Rules and Regulations; and the financial statements filed as a part of
the Registration Statement and included in the Prospectus present fairly the
financial position and the results of operations of the Company at the
respective dates and for the respective periods to which they apply and have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved.
(7) Prior to the Closing Date, the Company will supply and deliver to the
Underwriter at its offices, all information required to enable it to make such
investigation of the Company and its business prospects as it shall desire and
shall make available to it such persons as it deems reasonably necessary or
appropriate in order to verify or substantiate any information regarding the
Company. In addition, the Underwriter shall have the right to review any
materials prepared in connection with any offering of securities of the Company
conducted prior to the Offering for compliance with applicable federal and
state securities laws.
(8) The Company will make arrangements to have available, at the offices
of the Trustee, First Union National Bank, certificates for Debentures in such
quantities as may, from time to time, be necessary.
(9) The Company is not aware of the occurrence or likelihood of occurrence
of any event or events which would cause it to use the proceeds of the Offering
in any way materially different from that stated in the Prospectus.
II. Representations, Warranties and Agreements of the Underwriter. The
Underwriter represents and warrants to and agrees with the Company that:
(1) The Underwriter is registered as a broker-dealer with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934, as
amended, is registered as a broker- dealer with the state or states listed on
Annex A under applicable securities laws of such state(s), and is a member in
good standing of the National Association of Securities Dealers, Inc. ("NASD").
(2) The Underwriter will only sell Debentures after the Effective Date and
will comply with the applicable provisions of the Act and the securities laws
of the jurisdictions in which the Debentures are sold by the Underwriter with
respect to such sales.
(3) No person was or is entitled, directly or indirectly, to compensation
from it or any of its affiliates for services as a finder in connection with
the proposed public offering.
(4) The Underwriter will comply with all applicable Sections of Article
III of the NASD Rules of Fair Practice with respect to the Offering.
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III. Employment of Underwriter. Upon the foregoing representations, warranties
and agreements, and subject to the terms and conditions of this Underwriting
Agreement:
(1) The Company hereby employs the Underwriter as its agent to sell for
the account of the Company up to $10,000,000 in principal amount of Debentures
in multiples of $1,000 per Debenture. The Underwriter may engage Mariner
Financial Services, Inc. (the "Selected Dealer") to find investors for the
Series 1997 Debentures pursuant to a Selected Dealer Agreement substantially in
the form attached hereto as Exhibit A. However, failure to engage the Selected
Dealer shall not constitute a failure on the part of East West to discharge its
duties under this Agreement.
(2) The Underwriter will be paid a commission of 6.5% of the gross sales
price of the Debentures, provided, however, if the Underwriter sells $250,000
in principal amount of the Debentures it will be paid a commission of 7.0% on
all sales, and if the Underwriter sells $500,000 or more of the Debentures it
will be paid a commission of 8.0% on all sales.
(3) The Underwriter will use its best efforts to find purchasers for the
Debentures as follows:
(i) For the duration of the Offering, all funds received by the
Underwriter from purchasers of the Debentures shall remit the
proceeds from the sale of the Debentures to the Company in accordance
with any applicable rules of the NASD. The Underwriter shall
instruct all purchasers to make their investment checks payable to
the Company and all checks or funds that the Underwriter receives
from purchasers of the Debentures shall be transmitted to the
Company.
(4) The Underwriter agrees to make a public offering of the Debentures in
accordance with, and as set forth in, the Prospectus. Such public offering
shall be made directly to the public.
(5) Through its legal counsel, the Company has sought to register or
qualify the Debentures under the securities or Blue Sky laws of Michigan, Ohio,
Illinois, Florida, Pennsylvania and other states to be determined at the
Company's sole discretion and such counsel will use their best efforts to
effect such registrations or to obtain such qualifications. The Company shall
pay for all Blue Sky filing fees as well as all costs and expenses of such
counsel in seeking clearance of the Offering in these states, and will file
such consents to service of process or other documents as may be necessary to
effect such clearance and continue the same in effect for as long a period as
the Underwriter may reasonably request.
IV. Further Agreements of the Company. The Company agrees with the Underwriter
that:
(1) The Company will use its best efforts to cause the Registration
Statement to become effective and will advise the Underwriter promptly and, if
requested by the Underwriter, will confirm such advice in writing (i) when the
Registration Statement has become effective and when any
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amendment thereto becomes effective, (ii) of any request by the Commission or
other governmental authority for amendments or supplements to the Registration
Statement or Prospectus or for additional information, (iii) of the issuance by
the Commission or other governmental authority of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose, and (iv) within the period of time referred to in
Section IV (5) below, of the happening of any event which makes any statement
made in the Registration Statement or the Prospectus untrue or which requires
the making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at any
time the Commission or other governmental authority issues any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible moment.
(2) The Company will pay all expenses in connection with the delivery to
the purchasers of the Debentures and all expenses in connection with the
printing, preparation and filing of the Registration Statement (including this
Underwriting Agreement and all other exhibits to the Registration Statement)
and the Prospectus and any amendments or supplements thereto.
(3) The Company will furnish to the Underwriter, without charge, conformed
copies of the Registration Statement as originally filed and of any amendment
thereto, including exhibits. The Company will also deliver to the Underwriter,
for distribution to the Selected Dealer, a conformed copy of such registration
statement (without exhibits) so that one copy may be distributed to the
Selected Dealer.
(4) The Company will not file any amendment to the Registration Statement
or make any amendment or supplement to the Prospectus of which the Underwriter
shall not previously have been advised or with respect to which the Underwriter
promptly after being so advised reasonably shall object in writing.
(5) On the Effective Date and thereafter from time to time for such period
as in the opinion of counsel for the Underwriter or the Selected Dealer the
Prospectus is required by law to be delivered in connection with sales by the
Underwriter or the Selected Dealer, the Company will deliver to the Underwriter
and the Underwriter must deliver such Prospectus to the Selected Dealer without
charge as many copies of the Prospectus (and of any amendments or supplements
thereto) as the Underwriter may reasonably request. The Company consents to
the use of the Prospectus (and of any amendments or supplements thereto) in
accordance with the provisions of the Act and with the securities laws of the
jurisdictions in which the Debentures are offered by the Underwriter or the
Selected Dealer, both in connection with the offering or sale of the Debentures
and for such period of time thereafter as the Prospectus is required by law to
be delivered in connection therewith. If during such period of time any event
occurs which, in the judgement of the Company or in the opinion of counsel for
the Underwriter or the Selected Dealer, should be set forth in the Prospectus
in order to make the statements therein, in light of the circumstance in which
they were made, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with the Act or any other law, the Company will forthwith
prepare and file with the Commission an appropriate
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amendment or supplement thereto and will furnish to the Underwriter and the
Underwriter must deliver such Prospectus to the Selected Dealer, without
charge, a reasonable number of copies thereof, which the Underwriter and the
Selected Dealer shall use thereafter.
(6) From the date hereof until one year after the termination of the
Offering, the Company will furnish to the Underwriter and the Underwriter must
deliver to the Selected Dealer (i) as soon as available, a copy of each report
of the Company mailed to its Debenture holders or filed with the Commission,
and (ii) from time to time, such other information concerning the business and
financial condition of the Company as the Underwriter or the Selected Dealer
may reasonably request.
(7) The Company shall promptly notify the Underwriter of the filing of a
registration statement with the Commission pursuant to Section 12 of the
Securities Exchange Act of 1934, furnish the Underwriter with a copy of such
registration statement and promptly inform the Underwriter of its effectiveness
and the Underwriter shall notify the Selected Dealer of such filing, provide
the Selected Dealer with a copy of such registration statement and inform the
Selected Dealer of its effectiveness.
(8) The Company will apply the net proceeds from the sale of the
Debentures in the manner set forth under the caption "Use of Proceeds" in the
Prospectus, except where, as a result of events brought to its attention prior
to the termination of the Offering, it is determined that such application
would not be in the best interest of the Company and would not violate any
applicable law.
V. Indemnity and Contribution Provisions.
(1) The Company agrees to indemnify and hold harmless the Underwriter and
any person who controls any Underwriter within the meaning of Section 15 of the
Act and the Selected Dealer against any and all losses, claims, lawsuits,
damages or liabilities, joint and several, to which such Underwriter, such
controlling person or the Selected Dealer may become subject under the Act or
otherwise, insofar as such losses, claims, lawsuits, damages or liabilities
(including awards and/or judgements) arise out of any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectus and related exhibits, or any amendment or supplement thereto; or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statement therein not misleading; and will
reimburse the Underwriter, each such controlling person and the Selected Dealer
for any and all costs and expenses, including reasonable counsel fees incurred
by such Underwriter, such controlling persons or the Selected Dealer in
connection with the investigation or defense of any such loss, claim, lawsuit,
damage or liability; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, lawsuit or liability
arises out of or is based upon an untrue statement or omission made in the
Registration Statement or the Prospectus and related exhibits or any amendment
or supplement thereto in reliance upon and in conformity with
information furnished to the Company by or on behalf of the Underwriter or the
Selected Dealer specifically for use with
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reference to such Underwriter and the Selected Dealer in preparation thereof.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(2) The Underwriter and the Selected Dealer will indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement and any person who controls the Company within the
meaning of the Act against any and all losses, claims, lawsuits, damages or
liabilities to which the Company or any such director or officer or controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, lawsuits, damages or liabilities (including awards and/or judgements)
arise out of or are in connection with any information furnished to the Company
by the Underwriter or the Selected Dealer and are included in the Registration
Statement, the Prospectus and related exhibits or any amendment or supplement
thereto or any Preliminary Prospectus, and will reimburse any and all costs and
expenses, including reasonable counsel fees incurred by the Company or such
director or officer or controlling person in connection with investigating or
defending any such loss, claim, lawsuit, damage or liability. This indemnity
agreement will be in addition to any liability which the Underwriter or the
Selected Dealer may otherwise have.
(3) Promptly after receipt by an indemnified party under this Article V of
notice of any such liability, claim or lawsuit, such indemnified party will, if
a claim in respect thereof is to be made against an indemnifying party under
this Article V, notify the indemnifying party in writing of the commencement
thereof; but the omission to so notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Article V. In case any such action is brought against any
indemnified party and it notifies any indemnifying party of the commencement
thereof, the indemnifying party will be entitled to take any and all necessary
and proper action, at its sole cost and expense, with respect to such
liability, claim or lawsuit, including the right to settle, compromise and
dispose of such liability, claim or lawsuit, excepting therefrom any and all
proceedings or hearings before any regulatory bodies and/or authorities.
(4) If the indemnification provided for in Section (1) or (2) of this
Article V is, for any reason other than as specified in such sections, held by
a court to be unavailable and the Company, the Underwriter or the Selected
Dealer has been required to pay damages as a result of a determination by a
court that the Registration Statement, the Prospectus, or any amendment or
supplement thereto contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, then the Company shall contribute to the
damages paid by the Underwriter or the Selected Dealer and the Underwriter or
the Selected Dealer shall contribute to the damages paid by the Company, but in
each case only to the extent that such damages arise out of or are based upon
such untrue statement or omission, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriter or the Selected Dealer on the other from the offering of the
Debentures, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Underwriter or the Selected Dealer in such
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damages, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Underwriter or the Selected Dealer
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
selling commissions and allocable expenses received by the Underwriter, as set
forth in the table on the cover page of the Prospectus and received by the
Selected Dealer, as set forth by the Selected Dealer Agreement. The relative
fault shall be determined by reference to, among other things, whether the
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company, the Underwriter or the Selected
Dealer and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such untrue statement or omission. For
purposes of this Section, the term "damages" shall include any counsel fees or
other expenses reasonably incurred by the Company, the Underwriter or the
Selected Dealer in connection with investigating or defending any action or
claim which is the subject of the contribution provisions of this Section.
Notwithstanding the provisions of this Section, neither the Underwriter nor the
Selected Dealer shall be required to contribute any amount in excess of the
amount by which the total price at which the Debentures distributed to the
public were offered to the public exceeds the amount of any damages which
Underwriter or the Selected Dealer has otherwise been required to pay by reason
of any such untrue statements or omissions. No person adjudged guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(5) The agreements contained in this Article V and the representations and
warranties of the Company and the Underwriter set forth in this Underwriting
Agreement shall remain operative and in full force and effect, regardless of
(a) any investigation made by or on behalf of the Underwriter or any person
controlling the Underwriter or by or on behalf of the Company, any of its
directors or officers, or any person controlling the Company, (b) acceptance of
any Debentures and payment therefor hereunder, and (c) any termination of this
Underwriting Agreement. A successor of the Underwriter or of the Company, or
any director or officer thereof or any person controlling the Underwriter or
the Company, as the case may be, shall be entitled to the benefits of the
agreements contained in this Article V.
VI. Conditions to Obligation of the Underwriter and the Selected Dealer. The
obligations of the Underwriter and the Selected Dealer to participate in the
offer and sale of the Debentures hereunder are subject to the accuracy of and
compliance with the representations and warranties and agreements of the
Company contained herein on and as of the closing date and to the following
further conditions:
(1) That the Registration Statement shall have become effective; that no
stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been or to the
knowledge of the Company shall be contemplated by the Commission at or prior to
the closing date, and
(2) That the Company shall have delivered to the Underwriter and the
Underwriter shall
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have delivered to the Selected Dealer such additional documents as it shall
reasonably request in order to receive further assurance as to the accuracy of
the Registration Statement and compliance with the Company's agreements
hereunder.
VII. Termination. This agreement may be terminated by either party upon thirty
(30) days written notice to the other party. Any termination of this Agreement
pursuant to this provision shall not affect the Company's obligation to
compensate the Underwriter for commissions earned in accordance with Article
III hereof.
VIII. Miscellaneous. Except as otherwise provided herein, notice given
pursuant to any of the provisions of this Underwriting Agreement shall be in
writing and shall be delivered (a) to the Company at the office of the Company,
00000 Xxxxxxxxxxxx Xxx, Xxxxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxx; (b)
to the Underwriter at the office of the Underwriter, set forth below or in each
case to such other address as the person to be notified may have requested in
writing, or (c) to the Selected Dealer, Mariner Financial Services, Inc., X.X.
Xxx 0000, Xxxxxxxxxx, XX 00000-0000.
This Underwriting Agreement has been and is made solely for the benefit of
the Underwriter, the Selected Dealer, the Company, the controlling persons,
directors and officers referred to in Article V hereof, and their respective
successors and assigns; and no other person shall acquire or have any right
under or by virtue of this Underwriting Agreement. The terms "successor" or
"successor and assigns" as used in this Underwriting Agreement shall not
include a purchaser from the Underwriter or the Selected Dealer of any of the
Debentures in his status as such purchaser.
This Underwriting Agreement may be executed in any number of counterparts,
each of which, when taken together, shall be deemed the fully executed
agreement between the parties.
This Underwriting Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan.
MCA FINANCIAL CORP.
By: _______________________
Xxx X. Xxxxx, President
EAST WEST CAPITAL CORPORATION
(Underwriter)
By: _______________________
Xxxxx Xxxxxxx, President
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ANNEX A
STATES IN WHICH AGENT IS REGISTERED
_____________________
_____________________
_____________________
_____________________
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Exhibit A
SELECTED DEALER AGREEMENT
$10,000,000 of ___% Subordinated Debentures, Series 1997
Due June 1, 2003
MCA FINANCIAL CORP.
June __, 1997
East West Capital Corporation
00000 Xxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Dear Sir:
MCA Financial Corp., a Michigan corporation (the "Company"), has entered
into an agreement, dated June __, 1997 (the "Underwriting Agreement"), with
East West Capital Corporation whereby East West Capital Corporation will act as
a best-efforts selling agent (the "Underwriter") in connection with the
offering of the Series 1997 Debentures on a best efforts basis. The Underwriter
and Mariner Financial Services, Inc. (the "Selected Dealer") are entering into
this Selected Dealer Agreement whereby the Selected Dealer will solicit
potential investors for the Series 1997 Debentures pursuant to the terms set
forth herein. The Selected Dealer acknowledges receipt of the Prospectus dated
June __, 1997 (the "Prospectus") relating to the offering by the Company of
$10,000,000 in aggregate principal amount of __% Subordinated Debentures,
Series 1997, Due June 1, 2003 (the "Series 1997 Debentures"). In soliciting
potential investors for the Series 1997 Debentures, the Selected Dealer will
rely only on the Prospectus and on no other statements whatsoever, written or
oral.
Dealer Commission: The Selected Dealer will be paid a selling commission by
the Underwriter of 4.5% of the purchase price of all
Series 1997 Debentures sold by the Selected Dealer,
provided, however, that if the Selected Dealer sells
$250,000 or more of the Series 1997 Debentures it will
be paid a commission of 5.25% on all sales by it, and if
the Selected Dealer sells $500,000 or more of the Series
1997 Debentures it will be paid a commission of 6.75% on
all sales by it.
Delivery and Payment: The commission to be paid to the Selected Dealer will be
paid by the Underwriter within three (3) business days
after the Company pays
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the Underwriter the selling commission specified in the
Prospectus.
Offer to Public: The Series 1997 Debentures must be sold to the public in
conformity with the terms of offering set forth in the
Prospectus and as provided herein.
Termination of this
Agreement: This Agreement shall continue for so long as the
Underwriter continues to sell the Series 1997 Debentures
under the Underwriting Agreement; provided that either
party may terminate this Agreement upon thirty (30) days
written notice to the other party.
The Selected Dealer represents that in connection with soliciting
potential investors for the Series 1997 Debentures (a) it will not solicit
potential investors for the Series 1997 Debentures in any jurisdiction except
in compliance with applicable laws and (b) it will furnish to each potential
investor that it solicits a copy of the then current prospectus or of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), as the case may be. Any offering
material in addition to the then current prospectus or the Prospectus
solicitations referred to in the proceeding sentence (i) shall be prepared and
so furnished at the Selected Dealer's sole risk and expense, and (ii) shall not
contain information relating to the Series 1997 Debentures or the Company which
is inconsistent in any respect with the information contained in the then
current prospectus or in the Prospectus (as then amended, or supplemented if
the Company shall have furnished any amendments or supplements thereto), as the
case may be.
The Selected Dealer will not give any information or make any
representations other than those contained in the Prospectus, or act as agent
for the Company or the Underwriter.
The Selected Dealer agrees that the Underwriter has full authority to take
such action as may seem advisable to the Underwriter in respect of all matters
pertaining to the offering of the Series 1997 Debentures with respect to the
Selected Dealer for any act or omission, except for obligations expressly
assumed by the Underwriter in this Agreement. No obligations on the part of
the Underwriter will be implied or inferred herefrom.
The Underwriter shall hold the Selected Dealer and each of its current and
former affiliates, officers and/or directors harmless against, and shall
further indemnify the Selected Dealer and each of its current and former
affiliates, officers and/or director for any and all claims, expenses
(including reasonable attorneys' fees), losses, damages, liabilities, or causes
of action arising out of or based upon (i) the Underwriter's performance,
non-performance or breach of this Agreement, (ii) the Underwriter's violation
of any applicable federal, state, or NASD law, rule regulation or requirement,
or (iii) any untrue statement or material omission contained in any sales
material, offering document, brochure or other material used in connection with
the distribution of the Series 1997 Debentures. This provision shall apply
only to the extent the Underwriter's actions in (i), (ii), or (iii) of the
previous sentence do not arise out of or are not based upon information
provided, or
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actions taken by the Selected Dealer.
All communications to the Underwriter relating to the subject matter of
this Agreement shall be addressed to East West Capital Corporation, 00000
Xxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, and
any notices to the Selected Dealer shall be deemed to have been duly given if
mailed or telegraphed to us at the address shown below.
The Underwriter will not have responsibility with respect to the right of
the Selected Dealer to sell Series 1997 Debentures in any jurisdiction,
notwithstanding any information the Underwriter may furnish in that connection.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Michigan.
Sincerely,
MARINER FINANCIAL SERVICES, INC., the Selected Dealer
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
By:_______________________
Its:______________________
EAST WEST CAPITAL CORPORATION, the Underwriter
00000 Xxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
By:_______________________
Its:______________________
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