SELLING AGREEMENT
This Agreement made as of the , by and
between SUMMIT SECURITIES, INC., an Idaho corporation ("Summit") and
METROPOLITAN INVESTMENT SECURITIES, INC., a Washington corporation
(the "Selling Agent").
WITNESSETH:
WHEREAS, Summit proposes to issue and sell $40,000,000 principal
amount of its Investment Certificates, Series A (the "Certificates")
pursuant to a Registration Statement (or Registration Statements) and
a Prospectus (or Prospectuses) filed under the Securities Act of 1933;
and
WHEREAS, the Selling Agent, an affiliate of Summit, for good and
valuable consideration the receipt of which is hereby acknowledged,
desires to assist in the sale of the Certificates upon the terms and
in reliance upon the representations, warranties and agreements set
forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Appointment of Selling Agent.
Summit hereby appoints the Selling Agent as its managing agent to
offer and sell the Certificates at the prices and in the manner
described in the Registration Statement and the Prospectus and in
compliance with the terms and conditions thereof. Summit agrees to
provide the Selling Agent with such number of Registration Statements
and Prospectuses as it reasonably requests to enable it to offer the
Certificates and authorizes the Selling Agent to distribute the
Registration Statements and Prospectuses.
2. Undertaking of Selling Agent.
The Selling Agent agrees to use its best efforts to sell the
Certificates on the terms stated herein and in the Registration
Statement and Prospectus and to notify Summit of the number of
Certificates with respect to which subscription agreements have been
executed by subscribers. It is understood that the Selling Agent has
no commitment to sell the Certificates other than to use its best
efforts. The Selling Agent will deliver all cash and checks received
from the subscribers to Summit by noon of the next business day. All
checks received by the Selling Agent from subscribers shall be made
payable to Summit. The Selling Agent will not maintain discretionary
customer accounts and undertakes that it will not, in any event make
discretionary purchases for the accounts of customers.
3. Amendment of the Registration Statement and Prospectus.
Summit agrees, at its expense, to amend or supplement the
Registration Statement or the Prospectus and to provide the Selling
Agent with sufficient copies thereof for distribution as contemplated
in the Registration Statement or the Prospectus or otherwise for
purposes contemplated by federal and state securities laws, if (i) the
Selling Agent advises Summit that in its opinion and that of its
counsel, such amendment or supplement is necessary or advisable, or
(ii) such amendment or supplement is necessary to comply with federal
or state securities laws or the rules or regulations promulgated
thereunder or is necessary to correct any untrue statement therein or
eliminate any material omissions therein or any omissions therein
which make any of the statements therein misleading. The
representations, warranties and obligations to indemnify all parties
hereto contained herein relating to the Registration Statement or the
Prospectus shall attach to any such amendment or supplement.
4. Undertakings of Summit.
Summit will promptly notify the Selling Agent in the event of the
issuance by the Securities and Exchange Commission ("SEC") of any stop
order or other order suspending the Registration of the Certificates,
or in the event of the institution or intended institution of any
action or proceeding for that purpose. In the event that the SEC
shall enter a stop order suspending or otherwise suspend the
Registration of the Certificates, Summit will make every reasonable
effort to obtain as promptly as possible the entry of an appropriate
order setting aside such stop order or otherwise reinstating the
Registration of the Certificates.
5. Representations and Warranties.
Summit represents and warrants to the Selling Agent that:
(i) The Registration Statement and the Prospectus comply as to
form in all material respects with the Securities Act of 1933 and the
rules and regulations of the SEC thereunder, accurately describe the
operations of Summit and do not contain any misleading or untrue
statements of a material fact or omit to state a material fact which
is necessary to prevent the statements therein from being misleading.
(ii) Summit is a corporation duly organized and validly existing
under the laws of the State of Idaho with full corporate power to
perform its obligations as described in the Registration Statement and
the Prospectus.
(iii) The Certificates, when issued and sold pursuant to the terms
hereof and of the Registration Statement, Prospectus and subscription
agreements, will constitute valid, binding and legal outstanding
obligations of Summit, in accordance with their terms.
(iv) This Agreement has been duly and validly authorized,
executed and delivered on behalf of Summit and is a valid and binding
agreement in accordance with its terms.
6. Indemnification.
Summit and the Selling Agent each (a) agree to indemnify and hold
harmless the other (and each person, if any, who controls the other)
against any loss, claim, damage, charge or liability to which the
other (or such controlling persons) may become subject, insofar as
such loss, claim, damage, charge or liability (or actions in respect
thereof) (i) arises out of or is based upon any misrepresentation or
breach of warranty of such party herein or any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto) which relates to or was supplied by such party, or
(ii) arises out of or is based upon the omission or alleged omission
to state therein a material fact relating to such party required to be
stated therein or necessary to make the statements therein not
misleading, including liabilities under the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended, and (b)
agree to reimburse such other party (and any controlling persons) for
any legal or other fees or expenses reasonably incurred in connection
with investigating or defending any action or claim arising out of or
based upon any of the foregoing.
7. Fees and Expenses.
Summit will pay all expenses incurred in connection with the
offering and sale of the Certificates, including without limitation,
fees and expenses of counsel, blue sky fees and expenses (including
legal fees), printing expenses, accounting fees and expenses, and fees
and expenses of West One Bank, Idaho, N.A., as Trustee.
In the event of termination of the offering, Selling Agent will be
reimbursed only for its actual accountable out-of-pocket expenses.
The maximum commissions payable upon sale of the Certificates shall
be 6% of the investment amount.
8. Governing Law.
This Agreement shall be deemed to be made under and governed by the
laws of the State of Idaho.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first above mentioned.
SUMMIT SECURITIES, INC.
By:___________________________________
Xxx Xxxxxx, President
METROPOLITAN INVESTMENT SECURITIES, INC.
By_____________________________________
Xxxxx X. Xxxxxxx, Vice President
