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EXHIBIT 1.1
UNDERWRITING AGREEMENT
$10,000,000 OF 11% 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. 333-27307) 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.
(9) In the event the Offering is terminated, the Underwriter will be
reimbursed only for its actual accountable out-of-pocket expenses (see Article
III, Section 44(c)(6)(B)(iv) of the NASD Rules of Fair Practice and NASD Notice
of Members 92-98).
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 11% 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 11% 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.
The Selected Dealer will comply with Rules 2730, 2740, 2750, and 2420 of
the NASD Conduct Rules.
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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EXHHIBIT 1.2.
SELLING AGREEMENT
$10,000,000 OF 11% 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
11% 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 "Placement Agent") with respect to the sale by the
Placement Agent 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 Placement Agent that:
(1) A registration statement on Form S-1 (File No. 333-27307) 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 Placement Agent. 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 Placement Agent 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
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all statements and information which are required to be included therein in
accordance with the Act 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 Placement Agent 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 Selling
Agreement and the Indenture, as amended, with First Union National Bank as
Trustee and, when issued and delivered by the Company pursuant to this Selling
Agreement against payment therefor, such Debentures will be duly and validly is
sued, fully paid, and nonassessable, and will constitute legal, valid and
binding obligations of the Company in accordance with their terms.
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(6) Xxxxx Xxxxxxxx Xxxxxx Xxxxxx and Xxxxx Xxxxxxxx, acting in a joint
venture capacity who 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 Placement Agent 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 Placement Agent 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 Placement Agent.
The Placement Agent represents and warrants to and agrees with the Company that:
(1) The Placement Agent 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 Placement Agent 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
Placement Agent 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 Placement Agent will comply with all applicable Sections of
Article III of the NASD Rules of Fair Practice and with Rules 2730, 2740, 2750
and 2420 of the NASD Conduct Rules with respect to the Offering.
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III. Employment of Placement Agent. Upon the foregoing representations,
warranties and agreements, and subject to the terms and conditions of this
Selling Agreement:
(1) The Company hereby employs the Placement Agent 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.
(2) The Placement Agent will be paid a commission of 6.5% of the
gross sales price of the Debentures, provided, however, if the Placement Agent
sells $250,000 in principal amount of the Debentures it will be paid a
commission of 7.0% on all sales, and if the Placement Agent sells $500,000 or
more of the Debentures it will be paid a commission of 8.0% on all sales.
(3) The Placement Agent 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
Placement Agent 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 Placement
Agent shall instruct all purchasers to make their investment
checks payable to the Company and all checks or funds that the
Placement Agent receives from purchasers of the Debentures shall
be transmitted to the Company.
(4) The Placement Agent 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 Placement
Agent may reasonably request.
IV. Further Agreements of the Company. The Company agrees with the
Placement Agent that:
(1) The Company will use its best efforts to cause the Registration
Statement to become effective and will advise the Placement Agent promptly and,
if requested by the Placement Agent, will confirm such advice in writing (i)
when the Registration Statement has become effective and when any 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
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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
Selling 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 Placement Agent, without charge,
conformed copies of the Registration Statement as originally filed and of any
amendment thereto, including exhibits.
(4) The Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus of which the
Placement Agent shall not previously have been advised or with respect to which
the Placement Agent 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 Placement Agent the Prospectus is
required by law to be delivered in connection with sales by the Placement Agent,
the Company will deliver to the Placement Agent without charge as many copies of
the Prospectus (and of any amendments or supplements thereto) as the Placement
Agent 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 Placement Agent, 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 Placement Agent, 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
amendment or supplement thereto and will furnish to the Placement Agent, without
charge, a reasonable number of copies thereof, which the Placement Agent shall
use thereafter.
(6) From the date hereof until one year after the termination of the
Offering, the Company will furnish to the Placement Agent (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 Placement
Agent may reasonably request.
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(7) The Company shall promptly notify the Placement Agent of the
filing of a registration statement with the Commission pursuant to Section 12 of
the Securities Exchange Act of 1934, furnish the Placement Agent with a copy of
such registration statement and promptly inform the Placement Agent 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 after
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 Placement
Agent and any person who controls any Placement Agent within the meaning of
Section 15 of the Act against any and all losses, claims, lawsuits, damages or
liabilities, joint and several, to which such Placement Agent or such
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 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 Placement
Agent and each such controlling person for any and all costs and expenses,
including reasonable counsel fees incurred by such Placement Agent or such
controlling persons 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
Placement Agent specifically for use with reference to such Placement Agent in
preparation thereof. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(2) The Placement Agent 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 Placement
Agent and are included in the Registration Statement, the Prospectus and related
exhibits or any amendment or supplement thereto 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
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which the Placement Agent 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 or the Placement Agent 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 Placement Agent and
the Placement Agent 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
Placement Agent 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 Placement
Agent in such damages, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Placement Agent 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 Placement Agent, as set forth
in the table on the cover page of the Prospectus. 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 or the Placement Agent 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 or the Placement Agent 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, the Placement Agent
shall not 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 Placement Agent has
otherwise been required to pay by reason of any such untrue statements or
omissions. No person adjudged guilty of fraudulent misrepresentation (within
the
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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 Placement Agent set forth
in this Selling Agreement shall remain operative and in full force and effect,
regardless of (a) any investigation made by or on behalf of the Placement Agent
or any person controlling the Placement Agent 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 Selling Agreement. A successor of the Placement Agent or of
the Company, or any director or officer thereof or any person controlling the
Placement Agent or the Company, as the case may be, shall be entitled to the
benefits of the agreements contained in this Article V.
V. Conditions to Placement Agent's Obligation. The obligations of the
Placement Agent 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 Placement Agent 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.
VI. Termination. This agreement may be terminated by either party upon
sixty (60) 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 Placement Agent for commissions earned in accordance with
Article III hereof.
VII. Miscellaneous. Except as otherwise provided herein, notice given
pursuant to any of the provisions of this Selling 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; or (b) to
the Placement Agent at the office of the Placement Agent, set forth below or in
each case to such other address as the person to be notified may have requested
in writing.
This Selling Agreement has been and is made solely for the benefit of
the Placement Agent, 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 Selling Agreement. The terms "successor" or "successor and assigns" as
used in this Selling Agreement shall not include a purchaser from any of the
several Placement Agents of any
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of the Debentures in his status as such purchaser.
This Selling 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 Selling Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan.
MCA FINANCIAL CORP.
By: ______________________
Its:
PLACEMENT AGENT
By: ______________________
______________________
Please Print Name
______________________
Company Name
Its: ______________________
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ANNEX A
STATES IN WHICH AGENT IS REGISTERED
_________________
_________________
_________________
_________________
10
