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Exhibit 1.1
LITCHFIELD CAPITAL TRUST I
% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10 PER PREFERRED SECURITY)
GUARANTEED BY
LITCHFIELD FINANCIAL CORPORATION
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UNDERWRITING AGREEMENT
April __, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INCORPORATED
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Litchfield Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), and Litchfield Financial
Corporation, a Massachusetts corporation (the "Company"), as depositor of the
Trust and as guarantor, propose, subject to the terms and conditions stated
herein, that the Trust issue and sell to the Underwriter named in Schedule I
hereto (the "Underwriter") an aggregate of __________ (the "Firm Securities")
and, at the election of the Underwriter, up to an additional ___________ (the
"Optional Securities"), of ______% Series A Trust Preferred Securities
(liquidation amount $10 per preferred security), representing undivided
beneficial interests in the assets of the Trust, guaranteed on a subordinated
basis by the Company as to the payment of distributions, and as to payments on
liquidation or redemption, to the extent set forth in a guarantee agreement (the
"Guarantee") between the Company and The Bank of New York, as trustee (the
"Guarantee Trustee"). The Firm Securities and the Optional Securities that the
Underwriter elect to purchase pursuant to Section 2 hereof are referred to
collectively as the "Preferred Securities." The Trust is to purchase, with the
proceeds of the sale of the Preferred Securities and up to ___________ (or
____________ assuming full exercise by the Underwriter of the over-allotment
option described herein) of its Common Securities (liquidation amount $25 per
common security) (the "Common Securities," and, collectively with the Preferred
Securities, the "Trust Securities"), $___________ aggregate principal amount (or
$____________ aggregate principal amount assuming full exercise by the
Underwriter of the over-allotment option described herein) of ____% Series A
Junior Subordinated Debentures due ___________ (the "Subordinated Debentures")
of the Company, to be issued pursuant
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to an Indenture (the "Indenture") between the Company and The Bank of New York,
as trustee (the "Indenture Trustee").
The Company will be the holder of 100% of the Common Securities. The
Trust will be subject to the terms of a Trust Agreement (the "Trust Agreement"),
among the Company, as Depositor, The Bank of New York, as Property Trustee
("Property Trustee"), The Bank of New York (Delaware), as Delaware Trustee (the
"Delaware Trustee") and three individual trustees who are employees or officers
of or affiliated with the Company (the "Administrative Trustees"), and the
holders from time to time, of undivided beneficial interests in the assets of
the Trust. The Property Trustee, the Delaware Trustee and the Administrative
Trustees are collectively referred to herein as the "Trustees."
1. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE COMPANY.
Each of the Trust and the Company represents and warrants to, and agrees with
the Underwriter that:
a. The Trust has filed with the Securities and Exchange
Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), a
registration statement on Form S-3 (Registration No.
333-______), including the related preliminary
prospectus relating to the offering of the Preferred
Securities, the Subordinated Debentures and the
Guarantee, has filed such amendments thereto as may
have been required as of the date hereof, and will
file such additional amendments as may hereafter be
required. Copies of such registration statement and
any amendments, including any post-effective
amendments, and all forms of the related prospectuses
contained therein and any supplements thereto, have
been delivered to the Underwriter. Such registration
statement, including the prospectus, prospectus
supplement, Part II, all financial schedules and
exhibits thereto, and all information deemed to be a
part of such Registration Statement pursuant to Rule
430A under the Securities Act, at the time when it
shall become effective, together with any
registration statement filed by the Trust pursuant to
Rule 462(b) of the Securities Act, is herein referred
to as the "Registration Statement," and the
prospectus and prospectus supplement included as part
of the Registration Statement on file with the
Commission that discloses all the information that
was omitted from the prospectus on the effective date
pursuant to Rule 430A of the Rules and Regulations
(as defined below) and in the form filed pursuant to
Rule 424(b) under the Securities Act is herein
referred to as the "Final Prospectus." The prospectus
and a prospectus supplement included as part of the
Registration Statement on the date when the
Registration Statement became effective is referred
to herein as the "Effective
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Prospectus." Any prospectus and prospectus supplement
included in the Registration Statement and in any
amendment thereto prior to the effective date of the
Registration Statement is referred to herein as a
"Preliminary Prospectus." For purposes of this
Agreement, "Rules and Regulations" mean the rules and
regulations promulgated by the Commission under
either the Securities Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), as
applicable.
b. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and
each Preliminary Prospectus, at the time of filing
thereof, complied with the requirements of the
Securities Act and the Rules and Regulations, and did
not 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, in the light of the circumstances under
which they were made, not misleading; except that the
foregoing does not apply to statements or omissions
made in reliance upon and in conformity with written
information furnished to the Company or the Trust by
any Underwriter specifically for use therein
(it being understood that the only information so
provided is the information included in the first,
sixth and eighth paragraphs under the caption
"Underwriting" in the Final Prospectus). When the
Registration Statement becomes effective and at all
times subsequent thereto up to and including the
First Closing Date (as hereinafter defined), (i) the
Registration Statement, the Effective Prospectus and
Final Prospectus and any amendments or supplements
thereto will contain all statements which are
required to be stated therein in accordance with the
Securities Act, the Exchange Act and the Rules and
Regulations and will comply with the requirements of
the Securities Act, the Exchange Act and the Rules
and Regulations, and (ii) neither the Registration
Statement, the Effective Prospectus nor the Final
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, in light of the circumstances in which they
are made, not misleading; except that the foregoing
does not apply to statements or omissions made in
reliance upon and in conformity with written
information furnished to the Company or the Trust by
the Underwriter specifically for use therein
(it being understood that the only information so
provided is the information included in the first,
sixth and eighth paragraphs under the caption
"Underwriting" in the Final Prospectus).
c. The Company and each subsidiary of the Company (as
used herein, the term "subsidiary" includes any
corporation, joint venture or partnership in which
the Company or any subsidiary of the Company has a
50% or greater ownership interest) is duly organized
and validly existing and in good
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standing under the laws of the respective
jurisdictions of their organization or incorporation,
as the case may be, with full power and authority
(corporate, partnership and other, as the case may
be) to own their properties and conduct their
businesses as now conducted and are duly qualified or
authorized to do business and are in good standing in
all jurisdictions wherein the nature of their
business or the character of property owned or leased
may require them to be qualified or authorized to do
business, except for jurisdictions in which the
failure to so qualify would not have a material
adverse effect on the Company and its subsidiaries
taken as a whole. The Company and its subsidiaries
hold all licenses, consents and approvals, and have
satisfied all eligibility and other similar
requirements imposed by federal and state regulatory
bodies, administrative agencies or other governmental
bodies, agencies or officials, in each case as
material to the conduct of the respective businesses
in which they are engaged in the Effective Prospectus
and the Final Prospectus.
d. The outstanding stock of each of the Company's
corporate subsidiaries is duly authorized, validly
issued, fully paid and nonassessable. All of the
outstanding stock of each of the Company's corporate
subsidiaries owned beneficially and of record by the
Company is owned clear of any lien, encumbrance,
pledge, equity or claim of any kind. Neither the
Company nor any of its subsidiaries is a partner or
joint venturer in any partnership or joint venture.
e. The Trust has been duly created and is validly
existing as statutory business trust in good standing
under the Business Trust Act of the State of Delaware
(the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its
business as described in the Registration Statement,
Effective Prospectus and Final Prospectus and has
conducted and will conduct no business other than the
transactions contemplated by this Agreement and
described in the Registration Statement, Effective
Prospectus and Final Prospectus; the Trust is not a
party to or bound by any agreement or instrument
other than this Agreement, the Trust Agreement and
the agreements and instruments contemplated by the
Trust Agreement and described in the Registration
Statement; based on expected operations and current
law, the Trust is not and will not be classified as
an association taxable as a corporation for United
States federal income tax purposes; and the Trust is
not a party to or subject to any action, suit or
proceeding of any nature;
f. The Preferred Securities have been duly and validly
authorized by the Trust, and, when issued and
delivered to the Underwriter against payment
therefor as provided herein, will be duly and validly
issued and, subject to the terms of the Trust
Agreement, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and
will conform to the description thereof contained in
the Registration Statement, Effective Prospectus and
Final Prospectus and will be in substantially the
form
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previously delivered to you; the issuance of the
Preferred Securities is not subject to preemptive or
other similar rights; the Preferred Securities will
have the rights set forth in the Trust Agreement, and
the terms of the Preferred Securities are valid and
binding on the Trust; the holders of the Preferred
Securities (the "Securityholders") will be entitled
to the same limitation of personal liability extended
to stockholders of private corporations for profit
organized under the General Corporation Law of the
State of Delaware;
g. The Common Securities have been duly and validly
authorized by the Trust and upon delivery by the
Trust to the Company against payment therefor as
described in the Registration Statement, Effective
Prospectus and Final Prospectus, will be duly and
validly issued undivided beneficial interests in the
assets of the Trust and will conform to the
description thereof contained in the Registration
Statement, Effective Prospectus and Final Prospectus;
the issuance of the Common Securities is not subject
to preemptive or other similar rights; and at the
First Closing Date (as defined in Section 2c hereof),
all of the issued and outstanding Common Securities
of the Trust will be directly owned by the Company
free and clear of any Lien (as defined below); and
the Trust Securities are the only interests
authorized to be issued by the Trust;
h. This Agreement has been duly authorized, executed and
delivered by the Company and the Trust and
constitutes a valid and binding agreement of each of
the Company and the Trust, enforceable against the
Company and the Trust in accordance with their terms.
No consent, approval, authorization or order of any
court or governmental agency or body or third party
is required for the performance of this Agreement by
the Company or the Trust or the consummation by the
Company or the Trust of the transactions contemplated
hereby or under the Guarantor Agreements (as defined
herein), except such as have been obtained and such
as may be required by the National Association of
Securities Dealers, Inc. ("NASD") or under the
Securities Act, or state securities or Blue Sky laws
in connection with the purchase and distribution of
the Preferred Securities. The Company's performance
of this Agreement and the Guarantor Agreements, and
by the Trust to the extent the Trust is a party to
such agreements, and the consummation of the
transactions contemplated hereby and thereby, and the
issuance and sale of the Trust Securities by the
Trust, will not result in a breach or violation of,
or conflict with, any of the terms and provisions of,
or constitute a material default under, the Trust
Agreement, any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or
instrument to which the Company or any of its
subsidiaries or the Trust is a party or to which the
Company or any of its subsidiaries or any of their
respective properties is subject, the Articles of
Organization or bylaws of the Company or any of its
subsidiaries or any statute or any judgment, decree,
order, rule or regulation of any court or
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governmental agency or body applicable to the
Company, or any subsidiary or any of their respective
properties. Neither the Company nor any subsidiary is
(i) in violation of its Articles of Organization,
(ii) in violation of any partnership agreement or
joint venture agreement, as the case may be, (iii) in
violation of its bylaws or any law, administrative
rule or regulation or arbitrators' or administrative
or court decree, judgment or order or (iv) in
violation of or default (there being no existing
state of facts which with notice or lapse of time or
both would constitute a default) in the performance
or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture,
deed of trust, mortgage, loan agreement, note, lease,
agreement or other instrument or permit to which it
is a party or by which it or any of its properties is
or may be bound.
i. The Guarantee, the Subordinated Debentures, the Trust
Agreement and the Indenture (collectively, the
"Guarantor Agreements") have each been duly
authorized and, when executed and delivered by the
Company, will constitute valid and legally binding
obligations of the Company, enforceable in accordance
with their respective terms, except to the extent (A)
that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws now or
hereafter in effect relating to the rights of
creditors generally, and (2) general principles of
equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and
(B) with respect to the Indenture, the waiver
contained in Section ____ of the Indenture may be
deemed unenforceable.
j. The Subordinated Debentures are entitled to the
benefits provided by the Indenture; each of the
Guarantor Agreements will conform to the descriptions
thereof in the Registration Statement and will be in
substantially the form previously delivered to you.
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k. The documents that are incorporated by reference in
the Registration Statement, Effective Prospectus and
Final Prospectus or from which information is so
incorporated by reference, when they become effective
or were filed with the Commission, as the case may
be, complied in all material respects with the
requirements of the Securities Act of 1933, as
amended (the "Securities Act") or the Exchange Act,
as applicable, and the rules and regulations of the
Commission thereunder (the "Rules and Regulations").
l. The Company has full legal right, power and authority
to authorize the offering of the Guarantee and the
Subordinated Debentures, to execute, deliver and
perform this Agreement and to issue, sell and deliver
the Subordinated Debentures and the Guarantee.
m. The Trust has full legal right, power and authority
to authorize the offering of the Preferred
Securities, to execute, deliver and perform this
Agreement and to sell and deliver the Preferred
Securities to the Underwriter as provided
herein.
n. The capitalization of the Company as of December 31,
1998 is as set forth under the caption
"Capitalization" in the Effective Prospectus and the
Final Prospectus, and the Company's capital stock
conforms to the description in the Effective
Prospectus and the Final Prospectus. All the issued
shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and
nonassessable. None of the issued shares of capital
stock of the Company have been issued in violation of
any preemptive or similar rights. No holder of any
security of the Company has or will have any right to
require the registration of such security by virtue
of any transaction contemplated by this agreement.
The Underwriter will receive good and marketable
title to the Preferred Securities to be issued and
delivered hereunder, free and clear of all liens,
encumbrances, claims, security interests,
restrictions, stockholders' agreements and voting
trusts whatsoever.
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o. All offers and sales of the Company's securities
prior to the date hereof were at all relevant times
duly registered or exempt from the registration
requirements of the Securities Act and were duly
registered or the subject of an available exemption
from the registration requirements of the applicable
state securities or Blue Sky laws, or if not
registered in compliance with the applicable federal
and state securities laws, any actions arising from
such failure to register any such securities are
barred by applicable statute of limitations.
p. The consolidated financial statements and the related
notes of the Company, incorporated by reference in
the Registration Statement, the Effective Prospectus
and the Final Prospectus present fairly the financial
position, results of operations and changes in
financial position and cash flow of the Company and
its subsidiaries, at the dates and for the periods to
which they relate and have been prepared in
accordance with generally accepted accounting
principles applied on a consistent basis throughout
the periods indicated. The other financial statements
and schedules incorporated by reference in or as
schedules to the Registration Statement conform to
the requirements of the Securities Act, the Exchange
Act and the Rules and Regulations and present fairly
the information presented therein for the periods
shown. The financial and statistical data set forth
in the Effective Prospectus and the Final Prospectus
under the captions "Use of Proceeds," and "Summary
Financial Information of Litchfield" fairly presents
the information set forth therein on the basis stated
in the Effective Prospectus and the Final Prospectus.
Ernst & Young LLP, whose reports appear in the
Effective Prospectus and the Final Prospectus, are
independent accountants as required by the Securities
Act and the Rules and Regulations.
q. Subsequent to March 31, 1999, neither the Company nor
any subsidiary nor the Trust has sustained any
material loss or interference with its business or
properties from fire, flood, hurricane, earthquake,
accident or other calamity, whether or not covered by
insurance, or from any labor dispute or court or
governmental action, order or decree, which is not
disclosed in the Effective Prospectus and the Final
Prospectus; and subsequent to the respective dates as
of which information is given in the Registration
Statement, the Effective Prospectus and the Final
Prospectus, (i) neither the Company nor any of its
subsidiaries nor the Trust has incurred any material
liabilities or obligations, direct or contingent, or
entered into any material transactions not in the
ordinary course of business, and (ii) there has not
been any change in the capital stock, partnership
interests, joint venture interests, long-term debt or
obligations under capital leases of the Company and
its subsidiaries, or any issuance of options,
warrants or rights to purchase the capital stock of
the Company, or any adverse change, or any
development involving a prospective adverse change in
the management, business, prospects, financial
position, net worth or results of operations of the
Company or its
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subsidiaries, taken as a whole, or the Trust except
in each case as described in or contemplated by the
Effective Prospectus and the Final Prospectus.
r. Except as described in the Effective Prospectus and
the Final Prospectus, there is not pending, or to the
knowledge of the Company threatened, any action,
suit, proceeding, inquiry or investigation, to which
the Company, any of its subsidiaries or any of their
officers or directors is a party, or to which the
property of the Company or any subsidiary is subject,
before or brought by any court or governmental agency
or body, wherein an unfavorable decision, ruling or
finding could prevent or materially hinder the
consummation of this Agreement or result in a
material adverse change in the business condition
(financial or other), prospects, financial position,
net worth or results of operations of the Company or
its subsidiaries.
s. There are no contracts or other documents required by
the Securities Act or by the Rules and Regulations to
be described in the Registration Statement, the
Effective Prospectus or the Final Prospectus or to be
filed as exhibits to the Registration Statement which
have not been described or filed as required.
t. Except as described in the Effective Prospectus and
the Final Prospectus, the Company and each of its
subsidiaries have good and marketable title to all
real and material personal property owned by them,
free and clear of all liens, charges, encumbrances or
defects except those reflected in the financial
statements hereinabove described. The real and
personal property and buildings referred to in the
Effective Prospectus and the Final Prospectus which
are leased from others by the Company are held under
valid, subsisting and enforceable leases. The Company
or its subsidiaries owns or leases all such
properties as are necessary to its operations as now
conducted.
u. The Company's system of internal accounting controls
taken as a whole is sufficient to meet the broad
objectives of internal accounting control insofar as
those objectives pertain to the prevention or
detection of errors or irregularities in amounts that
would be material in relation to the Company's
financial statements; and, except as disclosed in the
Effective Prospectus and the Final Prospectus,
neither the Company nor any of its subsidiaries nor
any employee or agent of the Company or any
subsidiary has made any payment of funds of the
Company or any subsidiary or received or retained any
funds in violation of any law, rule or regulation.
v. The Company and its subsidiaries have filed all
federal, state and local income, excise and franchise
tax returns required to be filed through the date
hereof and have paid all taxes shown as due
therefrom; and there is no tax deficiency that has
been, nor does the Company or any subsidiary have
knowledge of any tax deficiency which is likely to
be, asserted against the
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Company or its subsidiaries, which if determined
adversely could materially and adversely affect the
earnings, assets, affairs, business prospects or
condition (financial or other) of the Company or its
subsidiaries.
w. The Company and its subsidiaries operate their
respective businesses in conformity in all material
respects with all applicable statutes, common laws,
ordinances, decrees, orders, rules and regulations of
governmental bodies. The Company and its subsidiaries
have all licenses, approvals or consents to operate
their respective businesses in all locations in which
such businesses are currently being operated, and the
Company and its subsidiaries are not aware of any
existing or imminent matter which may adversely
impact their operations or business prospects other
than as specifically disclosed in the Effective
Prospectus and the Final Prospectus. The Company has
not engaged in any activity, whether alone or in
concert with one of its customers, creating the
potential for exposure to material civil or criminal
monetary liability or other material sanctions under
federal or state laws regulating consumer credit
transactions, debt collection practices or land sales
practices.
x. Neither the Company nor any of its subsidiaries have
failed to file with the applicable regulatory
authorities any statement, report, information or
form required by any applicable law, regulation or
order where the failure to file the same would have a
material adverse effect on the Company and its
subsidiaries, taken as a whole; all such filings or
submissions were in material compliance with
applicable laws when filed and no deficiencies have
been asserted by any regulatory commission, agency or
authority with respect to such filings or
submissions. Neither the Company nor any of its
subsidiaries have failed to maintain in full force
and effect any license or permit necessary or proper
for the conduct of its business, or received any
notification that any revocation or limitation
thereof is threatened or pending, and, except as
disclosed in the Effective Prospectus and the Final
Prospectus, there is not pending any change under any
law, regulation, license or permit which could
materially adversely affect its business, operations,
property or business prospects. Neither the Company
nor any of its subsidiaries have received any notice
of violation of or been threatened with a charge of
violating and are not under investigation with
respect to a possible violation of any provision of
any law, regulation or order.
y. No labor dispute exists with the Company's employees
or with employees of its subsidiaries or is imminent
which could materially adversely affect the Company
or any of its subsidiaries. The Company is not aware
of any existing or imminent labor disturbance by its
employees or by any employees of its subsidiaries
which could be expected to materially adversely
effect the condition (financial or otherwise),
results of operations, properties, affairs,
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management, business affairs or business prospects of
the Company or any of its subsidiaries.
z. Except as disclosed in the Effective Prospectus and
the Final Prospectus, the Company and its
subsidiaries own or possess, or can acquire on
reasonable terms, the licenses, copyrights,
trademarks, service marks and trade names presently
employed by them in connection with the businesses
now operated by them, and neither the Company nor any
of its subsidiaries have received any notice of
infringement of or conflict with asserted rights of
others with respect to any of the foregoing which,
alone or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result
in any material adverse change in the condition,
financial or otherwise, or in the earnings, business
affairs or business prospects of the Company or its
subsidiaries.
aa. Neither the Company nor any of its subsidiaries, nor
any of the directors, officers, employees or agents
of the Company and its subsidiaries have taken and
will not take, directly or indirectly, any action
designed to cause or result in, or which has
constituted or which might be expected to constitute,
stabilization or manipulation of the price of the any
security of the Company in connection with the
offering, the sale or resale of the Preferred
Securities or the Company Common Stock issuable upon
exercise or conversion of Preferred Securities and
the Subordinated Debentures. The Company acknowledges
that the Underwriter may engage in passive
market making transactions on The Nasdaq Stock
Market's National Market (the "Nasdaq National
Market").
bb. The Company and each of its subsidiaries are insured
by insurers of reorganized financial responsibility
against such losses and risks and in such amounts as
are prudent and customary in the businesses in which
they are engaged; and the Company has no reason to
believe that it or any of its subsidiaries will not
be able to renew their existing insurance coverage as
and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to
continue their respective businesses at a comparable
cost.
cc. The Company is not, and will not become as a result
of the offering and sale of the Trust Securities and
Subordinated Debentures, an "investment company"
within the meaning of such term under the Investment
Company Act of 1940 and the rules and regulations of
the Commission thereunder.
dd. The Company is in compliance in all material respects
with all presently applicable provisions of the
Employee Retirement Income Security Act of
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1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any
liability; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from,
any "pension plan" or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended,
including the regulations and published
interpretations thereunder (the "Code"), and each
"pension plan" for which the Company would have any
liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether
by action or by failure to act, which would cause the
loss of such qualification.
ee. The Preferred Securities have been approved for
listing on the Nasdaq National Market subject to
notice of issuance.
2. PURCHASE, SALE AND DELIVERY OF THE PREFERRED SECURITIES.
a. On the basis of the representations, warranties,
agreements and covenants herein contained and subject
to the terms and conditions herein set forth, the
Trust and the Company agree that the Trust shall
issue and sell to the Underwriter, and the
Underwriter agrees to purchase at a purchase
price of $_______ per Preferred Security, the number
of Firm Securities set forth opposite the
Underwriter's name in Schedule I hereto.
b. The Trust and the Company also grant to the
Underwriter an option to purchase, solely for the
purpose of covering over-allotments in the sale of
Firm Securities, all or any portion of the Optional
Securities at the purchase price per Preferred
Security set forth above, plus interest accrued from
the First Closing Date. The option granted hereby may
be exercised as to all or any part of the Optional
Securities at any time within 30 days after the date
the Registration Statement becomes effective. The
Underwriter shall not be under any obligation to
purchase any Optional Securities prior to the
exercise of such option. The option granted hereby
may be exercised by the Underwriter giving written
notice to the Company setting forth the number of
Optional Securities to be purchased and the date and
time for delivery of and payment for such Optional
Securities and stating that the Optional Securities
referred to therein are to be used for the purpose of
covering over-allotments in connection with the
distribution and sale of the Firm Securities. If such
notice is given prior to the First Closing Date (as
defined herein), the date set forth therein for such
delivery and payment shall not be earlier than two
full business days thereafter or the First Closing
Date, whichever occurs later. If such notice is given
on or after the First Closing Date, the date set
forth therein for such delivery and payment shall not
be earlier than three full business days thereafter.
In either
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event, the date so set forth shall not be more than 15 full
business days after the date of such notice. The date
and time set forth in such notice is herein called
the "Option Closing Date." Upon exercise of the
option, the Company shall become obligated to sell to
the Underwriter, and, subject to the terms and
conditions herein set forth, the Underwriter shall
become obligated to purchase from the Company the
number of Optional Securities specified in such
notice. Optional Securities shall be purchased for
the account of the Underwriter in proportion to the
number of Firm Securities set forth opposite the
Underwriter' name in Schedule I hereto, except that
the purchase obligations of the Underwriter shall be
adjusted so that the Underwriter shall not be
obligated to purchase fractional Optional Securities.
c. A global certificate or certificates in definitive
form for the Firm Securities which the Underwriter
has agreed to purchase hereunder shall be delivered
by or on behalf of the Trust to the Underwriter,
through the facilities of DTC, for the account of the
Underwriter against payment by the Underwriter or on
their behalf of the purchase price therefor by same
day funds to an account designated by the Trust, such
time of delivery against payment being herein
referred to as the "First Closing Date." The First
Closing Date and the Option Closing Date are herein
individually referred to as the "Closing Date" and
collectively referred to as the "Closing Dates." A
global certificate or certificates in definitive form
for the Optional Securities which the Underwriter
shall have agreed to purchase hereunder shall be
similarly delivered by or on behalf of the Trust on
the Option Closing Date against payment by the
Underwriter or on its behalf of the purchase price in
the manner set forth above. The global certificate or
certificates in definitive form for the Preferred
Securities will be in good delivery form and in such
denominations and registered in such names as ▇▇▇▇▇▇
▇▇▇▇▇▇▇ may request not less than 48 hours prior to
the First Closing Date or the Option Closing Date, as
the case may be. Such certificate or certificates
will be made available for checking at the office of
DTC or its designated custodian, at least 24 hours
prior to the First Closing Date or the Option Closing
Date, as the case may be. The Preferred Securities to
be purchased by the Underwriter hereunder will be
represented by one or more global Preferred
Securities in book-entry form which will be deposited
by or on behalf of the Trust with DTC or its
designated custodian.
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d. As compensation to the Underwriter for its commitment
hereunder, and in view of the fact that the proceeds
of the sale of the Preferred Securities will be used
by the Trust to purchase the Subordinated Debentures
of the Company at each Closing Date the Company will
pay to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ an amount equal to $____ per
Preferred Security for the Preferred Securities to be
delivered by the Company at such Closing Date.
3. OFFERING BY THE UNDERWRITER. After the Registration
Statement becomes effective, the Underwriter proposes to offer for sale to the
public the Firm Securities and any Optional Securities which may be sold at the
price and upon the terms set forth in the Final Prospectus.
4. COVENANTS OF THE COMPANY. Each of the Company and the Trust,
jointly and severally, covenant and agree with the Underwriter:
a. To comply with the provisions of and make all
requisite filings with the Commission pursuant to
Rules 424(b), 430A and 462(b) of the Rules and
Regulations and to notify the Underwriter promptly
(in writing, if requested) of all such filings; to
notify the Underwriter promptly of any request by the
Commission for any amendment of or supplement to the
Registration Statement, the Effective Prospectus or
the Final Prospectus or for additional information;
to prepare and file with the Commission, promptly
upon the request of the Underwriter's any amendments
of or supplements to the Registration Statement, the
Effective Prospectus or the Final Prospectus which,
in the Underwriter's reasonable opinion, may be
necessary or advisable in connection with the
distribution of the Preferred Securities; and the
Company shall not file any amendment of or supplement
to the Registration Statement, the Effective
Prospectus or the Final Prospectus which is not
approved by the Underwriter after reasonable notice
thereof; to advise the Underwriters promptly of the
issuance by the Commission or any jurisdiction or
other regulatory body of any stop order or other
order suspending the effectiveness of the
Registration Statement, suspending or preventing the
use of any Preliminary Prospectus, the Effective
Prospectus or the Final Prospectus or suspending the
qualification of the Preferred Securities for
offering or sale in any jurisdiction, or of the
institution of any proceedings for any such purpose;
and to use its best efforts to prevent the issuance
of any stop order or other such order and, should a
stop order or other such order be issued, to obtain
as soon as possible the lifting thereof.
b. To take or cause to be taken all necessary action and
furnish to whomever the Underwriter direct such
information as may be reasonably required in
qualifying the Preferred Securities, the Subordinated
Debentures and the Guarantee, for
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offer and sale under the securities or Blue Sky laws
of such jurisdictions as the Underwriter may
designate and will continue such qualifications in
effect for as long as may be reasonably necessary to
complete the distribution. The Company and the Trust
shall not be required to qualify as a foreign
corporation or trust or (except for the sole purpose
of complying with Blue Sky filing requirements) to
file a general consent to service of process in any
jurisdiction where it is not presently qualified or
where it would be subject to taxation as a foreign
corporation or trust.
c. Within the time during which a Final Prospectus
relating to the Preferred Securities, the
Subordinated Debentures and the Guarantee is required
to be delivered under the Securities Act, to comply
with all requirements imposed upon it by the
Securities Act, as now and hereafter amended, and by
the Rules and Regulations, as from time to time in
force, so far as is necessary to permit the
continuance of sales of or dealings in the Preferred
Securities, the Subordinated Debentures and the
Guarantee as contemplated by the provisions hereof
and the Final Prospectus. If during such period any
event occurs as a result of which the Final
Prospectus as then amended or supplemented would
include an untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in the light of the circumstances
then existing, not misleading, or if during such
period it is necessary to amend the Registration
Statement or supplement the Final Prospectus to
comply with the Securities Act, the Company and
Trusts shall promptly notify the Underwriter
and shall amend the Registration Statement or
supplement the Final Prospectus (at the expense of
the Company) so as to correct such statement or
omission or effect such compliance.
d. To furnish without charge to the Underwriter and make
available to the Underwriter copies of the
Registration Statement (four of which shall be signed
and shall be accompanied by all exhibits, including
any which are incorporated by reference, which have
not previously been furnished), each Preliminary
Prospectus, the Effective Prospectus and the Final
Prospectus, and all amendments and supplements
thereto, including any prospectus or supplement
prepared after the effective date of the Registration
Statement, in each case as soon as available and in
such quantities as the Underwriter may
reasonably request. The Company and Trusts will
deliver to the Underwriter a copy of each document
incorporated by reference in the Effective Prospectus
and the Final Prospectus which has not previously
been furnished.
e. To (i) deliver to the Underwriter at such office or
offices as the Underwriter may designate as many
copies of the Preliminary Prospectus and
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Final Prospectus as the Underwriter may
reasonably request, and (ii) for a period of not more
than nine months after the Registration Statement
becomes effective, send to the Underwriter as
many additional copies of the Final Prospectus and
any supplement thereto as the Underwriter may
reasonably request.
f. To make generally available to its security holders,
in the manner contemplated by Rule 158(b) under the
Securities Act as promptly as practicable and in any
event no later than 90 days after the end of its
fiscal quarter in which the first anniversary of the
effective date of the Registration Statement occurs,
an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act covering a period
of at least 12 consecutive months beginning after the
effective date of the Registration Statement.
g. At any time when the Company or the Trust is not
subject to Section 13 or 15(d) of the Exchange Act,
for the benefit of holders from time to time of
Preferred Securities or Subordinated Debentures, to
furnish at the Company's or the Trust's expense, as
appropriate, upon request, to holders of Preferred
Securities or Subordinated Debentures and prospective
purchasers of such securities information (the
"Additional Issuer Information") satisfying the
requirements of subsection (d)(4)(i) of Rule 144A
under the Securities Act.
h. To furnish to the holders of the Preferred Securities
as soon as practicable after the end of each fiscal
year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash
flows of the Company and its consolidated
subsidiaries certified by independent public
accountants) and, as soon as practicable after the
end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending
after the date of the Registration Statement (unless
such quarter is the fourth fiscal quarter, in which
case beginning with the second fiscal quarter ending
after the date of the Registration Statement)),
consolidated summary financial information of the
Company and its subsidiaries for such quarter in
reasonable detail.
i. During a period of five years from the date of the
Registration Statement, to furnish to you copies of
all reports or other communications (financial or
other) furnished to stockholders of the Company, and
to deliver to you (i) as soon as they are available,
copies of any reports and financial statements
furnished to or filed with the Commission or any
securities exchange on which the Preferred Securities
or any class of securities of the Company is listed;
and (ii)
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such additional information concerning the business
and financial condition of the Company as you may
from time to time reasonably request (such financial
statements to be on a consolidated basis to the
extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to
its stockholders generally or to the Commission).
j. In the case of the Company, to issue the Guarantee
concurrently with the issue and sale of the Preferred
Securities as contemplated herein.
k. To apply the net proceeds from the sale of the
Preferred Securities, in the case of the Trust, and
the Subordinated Debentures, in the case of the
Company, as set forth under the caption "Use of
Proceeds" in the Final Prospectus.
l. From time to time, after the effective date of the
Registration Statement to file with the Commission
such reports as are required by the Securities Act,
the Exchange Act and the Rules and Regulations, and
shall also file with state securities commissions in
states where the Preferred Securities have been sold
by the Underwriter (as the Underwriter
shall have advised the Company in writing) such
reports as are required to be filed by the securities
acts and the regulations of those states.
m. During the period beginning from the date hereof and
continuing for a period of 180 days after the date of
the Effective Prospectus, not to offer, issue, sell,
contract to sell, grant any option (other than the
grant of options by the Company pursuant to plans in
effect on the date hereof) for the sale of, or
otherwise dispose of ("Transfer"), directly or
indirectly, (a) any trust certificates or other
securities of the Trust (other than the Preferred
Securities and the Common Securities), (b) any
preferred stock or any other security of the Company
or its affiliates that is substantially similar to
the Preferred Securities, (c) any shares of Company
common stock, or (d) any other securities which are
convertible into, or exercisable or exchangeable for,
any of (a) through (c) above, without the prior
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for a period of 180 days
after the date of the Effective Prospectus.
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n. To not take, directly or indirectly, any action
designed to cause or result in, or which might
constitute or be expected to constitute,
stabilization or manipulation of the price of any
security of the Company in connection with the
offering, the sale or resale of the Preferred
Securities, the Guarantee or the Subordinated
Debentures.
5. EXPENSES. The Company agrees with the Underwriter that
whether or not the transactions contemplated by this Agreement are consummated
or this Agreement becomes effective or is terminated, the Company will pay all
fees and expenses incident to the performance of the obligations of the Company
and the Trust hereunder, including, but not limited to, (i) the fees,
disbursements and expenses of the Trust's and the Company's counsel and
accountants in connection with the issue of the Preferred Securities and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement and any amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriter; (ii) the cost of
printing or producing this Agreement, the Indenture, the Trust Agreement, the
Guarantee, any Blue Sky and legal investment memorandum, any closing documents
(including any compilations thereto) and any other documents in connection with
the offering, purchase, sale and delivery of the Preferred Securities; (iii) the
fees, disbursements and expenses of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, A Professional
Corporation, special tax counsel to the Trust; (iv) the cost of preparing the
Preferred Securities and the Subordinated Debentures; (v) the fees and expenses
of the Trustees and any other agent thereof and the fees and disbursements of
their counsel, including the fees and disbursements of counsel for the
Underwriter in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; and (vi) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriter will pay all of its own costs and expenses, including the fees of
its counsel, transfer taxes on resale of any of the Preferred Securities by it,
and any advertising expenses connected with any offers it may make. The Company
shall not in any event be liable to any of the Underwriter for the loss of
anticipated profits from the transactions covered by this Agreement.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligations
of the Underwriter to purchase and pay for the Firm Securities and Optional
Securities shall be subject, in its discretion, to the accuracy of the
representations and warranties of the Company and the Trust herein as of the
date hereof and as of the Closing Date as if made on and as of the Closing Date,
to the accuracy of the statements of the Company's officers made pursuant to the
provisions hereof, to the performance by the Company and the Trust of all of
their covenants and agreements hereunder and to the following additional
conditions:
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a. All filings required by Rules 424, 430A and 462 of
the Rules and Regulations shall have been made; no
stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been
instituted or threatened or, to the knowledge of the
Company or the Underwriter, shall be
contemplated by the Commission; any request of the
Commission for additional information (to be included
in the Registration Statement or the Final Prospectus
or otherwise) shall have been complied with to the
Underwriter' satisfaction; and the NASD, upon
review of the terms of the public offering of the
Shares, shall not have objected to such offering,
such terms or the Underwriter's participation
in the same.
b. The Underwriter shall not have advised the Company
and the Trust that the Registration Statement,
Preliminary Prospectus, the Effective Prospectus or
Final Prospectus, or any amendment or any supplement
thereto, contains an untrue statement of fact which,
in the Underwriter' reasonable judgment, is
material, or omits to state a fact which, in the
Underwriter' judgment, is material and is
required to be stated therein or necessary to make
the statements therein not misleading, and the
Company and the Trust shall not have cured such
untrue statement of fact or stated a statement of
fact required to be stated therein.
c. The Underwriter shall have received an
opinion, dated the Closing Date, from ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, A Professional Corporation
("▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇"), counsel for the
Company, substantially to the effect that:
(1) The Company has been duly organized and is
validly existing in good standing as a
corporation under the laws of the
Commonwealth of Massachusetts, with
corporate power and authority to own its
properties and conduct its business as now
conducted, and is duly qualified to do
business as a foreign corporation in good
standing in all other jurisdictions where
the failure to so qualify would have a
material adverse effect upon the Company and
its subsidiaries taken as a whole. The
Company holds all licenses, certificates,
permits, franchises and authorizations from
governmental authorities which are material
to the conduct of its business in all
locations in which such business is
currently being conducted.
(2) Each of the Company's subsidiaries is
validly existing and in good standing as a
corporation under the laws of the state of
its incorporation or organization, as the
case may be, with power and authority to own
its properties and conduct its business as
now conducted, and is duly qualified or
authorized to do business and is in good
standing in all other jurisdictions where
the failure to so
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qualify would have a material adverse effect
upon the business of the Company and its
subsidiaries taken as a whole. The
outstanding stock of each of the Company's
subsidiaries is duly authorized, validly
issued, fully paid and nonassessable. All of
the outstanding stock of each of the
corporate subsidiaries owned beneficially
and of record by the Company is owned free
and clear of all liens, encumbrances,
equities and claims. No options or warrants
or other rights to purchase, agreements or
other obligations to issue or other rights
to convert any obligations into any shares
of capital stock or of ownership interests
in any of the Company's subsidiaries are
outstanding. Each of the Company's
subsidiaries holds all licenses,
certificates, permits, franchises and
authorizations from governmental authorities
which are material to the conduct of its
business in all locations in which such
business is currently being conducted.
(3) As of the dates specified therein,
the Company had authorized and issued
capital stock as set forth under the
caption "Capitalization" in the Final
Prospectus. All of the outstanding shares
of the capital stock of the Company have
been duly authorized and are validly
issued, fully paid and nonassessable; none
of the issued shares have been issued in
violation of or subject to any preemptive
rights provided for by law or by the
Company's Articles of Organization. There
are no preemptive rights or, to the
knowledge of such counsel, other rights to
subscribe for or to purchase, or any
restriction upon the transfer of, the
Preferred Securities pursuant to the
Company's Articles of Organization, bylaws
or other governing documents or, to the
knowledge of such counsel, any agreement or
other instrument to which the Company is a
party or by which it may be bound except as
described in the Effective Prospectus and
Final Prospectus and except for
restrictions on transfer imposed under
applicable securities laws. Neither the
filing of the Registration Statement nor
the offer or sale of the Preferred
Securities as contemplated by this
Agreement gives rise to any rights, other
than those which have been waived or
satisfied, for or relating to the
registration of any shares of Company
Common Stock or any other securities of the
Company. All offers and sales of the
Company's securities prior to the date
hereof were at all relevant times duly
registered or exempt from the registration
requirements of the Securities Act and were
duly registered or the subject of an
exemption from the registration
requirements of applicable state securities
or Blue Sky laws, or if not registered in
compliance with the applicable federal and
state securities laws, any actions arising
from such failure to register any such
securities are barred by applicable statute
of limitations.
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(4) The Company has full legal right,
power and authority to enter into this
Agreement and the Guarantor Agreements, and
this Agreement and the Guarantor
Agreements, upon due execution,
authentication and delivery, have been duly
authorized, executed, and delivered by the
Company. This Agreement and the Guarantor
Agreements constitute valid and legally
binding obligations of the Company
enforceable against the Company in
accordance with their terms, except to the
extent that (A) enforcement thereof may be
limited by (1) bankruptcy, insolvency,
fraudulent transfer, rehabilitation,
conservation, reorganization, moratorium or
other similar laws now or hereafter in
effect relating to the rights of creditors
generally, and (2) general principles of
equity (regardless of whether
enforceability is considered in a
proceeding at law or in equity); (B) with
respect to the Indenture, the waiver
contained in Section ____ of the Indenture
may be deemed unenforceable and (C) with
respect to this Agreement, the
enforceability of indemnification and
contribution provisions may be limited by
federal and state securities laws and the
policies underlying such laws; the
Subordinated Debentures are entitled to
the benefits provided by the Indenture;
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(5) No consent, approval, authorization or order
of any court or governmental agency or body
or third party is required for the
performance of this Agreement or the
Guarantor Agreements and or the consummation
by the Company or the Trust of the
transactions contemplated hereby and
thereby, except such as have been obtained
under the Securities Act and such as may be
required by the NASD and under state
securities or Blue Sky laws in connection
with the purchase and distribution of the
Preferred Securities, the Guarantee and the
Subordinated Debentures. The performance of
this Agreement and the Guarantor Agreements
and the consummation of the transactions
contemplated hereby and thereby will not
conflict with or result in a breach or
violation of any of the terms or provisions
of, or constitute a default by the Company
or the Trust under, any indenture, mortgage,
deed of trust, loan agreement, lease or
other agreement or instrument known to such
counsel to which the Company is a party or
to which the Company or its properties is
subject, the Articles of Organization or
bylaws of the Company, any statute, or any
judgment, decree, order, rule or regulation
known to such counsel of any court or
governmental agency or body applicable to
the Company or any of its subsidiaries or
their properties.
(6) Except as described in the Final Prospectus,
there is not pending, or to the best
knowledge of such counsel threatened, any
action, suit, proceeding, inquiry or
investigation, to which the Company or any
of its subsidiaries is a party, or to which
the property of the Company or any of its
subsidiaries is subject, before or brought
by any court or governmental agency or body,
which, if determined adversely to the
Company or any of its subsidiaries, could
result in any material adverse change in the
business, financial position, net worth or
results of operations, or could materially
adversely affect the properties or assets,
of the Company or any of its subsidiaries.
(7) To the best knowledge of such counsel, no
default exists, and no event has occurred
which with notice or after the lapse of time
to cure
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or both, would constitute a default, in the
due performance and observance of any term,
covenant or condition of any indenture,
mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to
which the Company or any of its subsidiaries
is a party or to which they or their
properties are subject, or of the Articles
of Organization or bylaws of the Company or
any of its subsidiaries.
(8) To the best knowledge of such counsel after
reasonable inquiry, neither the Company nor
any of its subsidiaries is in violation of
any law, ordinance, administrative or
governmental rule or regulation applicable
to the Company or any of its subsidiaries
and material to the Company and its
subsidiaries taken as a whole or any decree
of any court or governmental agency or body
having jurisdiction over the Company or any
of its subsidiaries.
(9) The Registration Statement and all post
effective amendments thereto have become
effective under the Securities Act, and, to
the best knowledge of such counsel, no stop
order suspending the effectiveness of the
Registration Statement has been issued and
no proceedings for that purpose have been
instituted or are threatened, pending or
contemplated by the Commission. All filings
required by Rule 424 and Rule 430A of the
Rules and Regulations have been made; the
Registration Statement, the Effective
Prospectus and Final Prospectus, and any
amendments or supplements thereto (except
for the financial statements and schedules
included therein as to which such counsel
need express no opinion), as of their
respective effective or issue dates,
complied as to form in all material respects
with the requirements of the Securities Act
and the Rules and Regulations; the
descriptions in the Registration Statement,
the Effective Prospectus and the Final
Prospectus of statutes, regulations, legal
and governmental proceedings, and contracts
and other documents are accurate in all
material respects and present fairly the
information required to be stated; and such
counsel does not know of any pending or
threatened legal or governmental
proceedings, statutes or regulations
required to be described in the Final
Prospectus which are not described as
required nor of any contracts or documents
of a character required to be described in
the Registration Statement or the Final
Prospectus or to be filed as exhibits to the
Registration Statement which are not
described and filed as required.
In addition to the matters set forth above, such
opinion shall also include a statement to the effect
that nothing has come to the attention of such
counsel which leads them to believe that the
Registration Statement, the Effective Prospectus and
the Final Prospectus or any amendment or supplement
thereto contains an untrue statement of a material
fact or omits to state a material fact
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required to be stated therein or necessary to make
the statements therein not misleading (except that
such counsel need express no view as to financial
statements, schedules and other financial information
included therein).
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware
counsel for the Trust, shall have furnished to you their written
opinions, dated the Closing Date, in form and substance satisfactory
to you, to the effect that:
i. The Trust has been duly created and is
validly existing in good standing as a business trust under
the Business Trust Act, and all filings required under the
laws of the State of Delaware with respect to the creation and
valid existence of the Trust as a business trust have been
made.
ii. Under the Business Trust Act and the
Declaration, the Trust has the trust power and authority to
own property and conduct its business, all as described in the
Prospectus and the Prospectus Supplement.
iii. The Declaration constitutes a valid and
legally binding obligation of the Company and the Trustees,
and is enforceable against the Company and the Trustees, in
accordance with its terms, subject, as to enforcement, to the
effect upon the Declaration of (i) bankruptcy, insolvency,
reorganization, moratorium, receivership, liquidation,
fraudulent transfer and conveyance, and other similar laws
relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii)
the effect of applicable public policy on the enforceability
of provisions relating to indemnification or contribution.
iv. Under the Business Trust Act and the
Declaration, the Trust has the trust power and authority to
(a) execute and deliver, and to perform its obligations under,
the Underwriting Agreement and (b) issue and perform its
obligations under the Trust Securities.
v. Under the Business Trust Act and the
Declaration, the execution and delivery by the Trust of the
Underwriting Agreement, and the performance by the Trust of
its obligations thereunder, have been duly authorized by all
necessary trust action on the part of the Trust.
vi. Under the Declaration and the Business Trust
Act, the Underwriting Agreement has been duly executed by the
Trust.
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vii. The Preferred Securities have been duly
authorized by the Declaration and are duly and validly issued
and, subject to the qualifications set forth herein, fully
paid and non-assessable undivided beneficial interests in the
assets of the Trust and will entitle the Preferred Security
Holders to the benefits provided by the Declaration (subject
to the terms of the Declaration). The Preferred Security
Holders, as beneficial owners of the Trust, will be entitled
to the same limitation of personal liability extended to
stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We
note that the Preferred Security Holders may be obligated,
pursuant to the Declaration, (a) to provide indemnity and
security in connection with and pay taxes or governmental
charges arising from transfers of certificates evidencing the
Preferred Security Certificates and the issuance of
replacement Preferred Security Certificates, and (b) to
provide security and indemnity in connection with requests of
or directions to the Property Trustee to exercise its rights
and powers under the Declaration.
viii. The Common Securities have been duly
authorized by the Declaration and are validly issued and fully
paid undivided beneficial interests in the assets of the
Trust.
ix. Under the Business Trust Act and the
Declaration, the issuance of the Trust Securities is not
subject to preemptive rights.
x. The issuance and sale by the Trust of the
Trust Securities, the execution, delivery and performance by
the Trust of the Underwriting Agreement, and the consummation
by the Trust of the transactions contemplated by the
Underwriting Agreement and the Declaration and the compliance
by the Trust with its obligations thereunder do not violate
(a) any provisions of the Certificate or the Declaration, or
(b) any applicable Delaware law or administrative regulation.
xi. With respect to statements made in the
Prospectus under the caption "The Trusts" and in the
Prospectus Supplement under "REI Trust I," insofar as such
statements are statements of Delaware law, such statements are
fairly presented.
xii. No authorization, approval, consent or order
of any Delaware court or Delaware governmental authority or
Delaware agency is required to be obtained by the Trust solely
in connection with the sale of the Trust Securities.
xiii. The Preferred Security Holders (other than
those Preferred Security Holders who reside or are domiciled
in the State of Delaware) will have no liability for income
taxes imposed by the State of Delaware solely as a result of
their participation in the Trust, and the Trust will not be
liable for any income tax imposed by the State of Delaware.
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▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, A Professional
Corporation, counsel to the Trust and the Company in relation to the
classification of the Trust for United States federal income tax
purposes, shall have furnished their written opinion to the effect
that:
i. under then current law and assuming full
compliance with the terms of the Trust Agreement and the
Indenture (and certain other documents), and based on certain
facts and assumptions contained in such opinion, the Trust
will be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable
as a corporation; and
ii. The statements made in the Effective
Prospectus or Final Prospectus under the caption "Certain
Federal Income Tax Consequences" are a fair and accurate
summary of certain of the United States federal income tax
issues relating to the ownership and the disposition of the
Preferred Securities.
f. The Underwriter shall have received an opinion
or opinions, dated the Closing Date, of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel
for the Underwriter, with respect to this Agreement, the Subordinated
Debentures, the Indenture, the Trust Agreement and the Registration
Statement, Effective Prospectus and the Final Prospectus, and such
other related matters as the Underwriter may require, and the Company
and Trust shall have furnished to such counsel
26
27
such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters. Such counsel may rely on
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., and ▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq. as to matters of Massachusetts law.
g. The Underwriter shall have received from Ernst
& Young LLP, a letter dated the date hereof and, at
the Closing Date, a second letter dated the Closing
Date, in form and substance satisfactory to the
Underwriter, stating that they are independent
public accountants with respect to the Company and
its subsidiaries within the meaning of the Securities
Act and the applicable Rules and Regulations, and to
the effect that:
(1) In their opinion, the financial statements
and schedules examined by them and included
in or incorporated by reference in the
Registration Statement comply as to form in
all material respects with the applicable
accounting requirements of the Securities
Act and the published Rules and Regulations
and are presented in accordance with
generally accepted accounting principles;
and they have made a review in accordance
with standards established by the American
Institute of Certified Public Accountants of
the consolidated interim financial
statements, selected financial data, and/or
condensed financial statements derived from
audited financial statements of the Company;
(2) On the basis of a reading of the latest
available unaudited interim consolidated
financial statements of the Company and its
subsidiaries, a reading of the minute books
of the Company and its subsidiaries,
inquiries of management of the Company
responsible for financial and accounting
matters and other specified procedures, all
of which have been agreed to by the
Underwriter nothing came to their attention
that caused them to believe that:
(a) the unaudited financial statements
included or incorporated by
reference in the Registration
Statement do not comply as to form
in all material respects with the
accounting requirements of the
federal securities laws and the
related published rules and
regulations thereunder or are not
in conformity with generally
accepted accounting principles
applied on a basis substantially
consistent with the basis for the
audited financial statements
contained in the Registration
Statement;
(b) any other unaudited financial
statement data included or
incorporated by reference in the
Final Prospectus do not agree with
the corresponding items in the
unaudited consolidated financial
statements from which data was
derived and any such unaudited data
were not determined on a basis
27
28
substantially consistent with the
basis for the corresponding amounts
in the audited financial statements
included or incorporated by
reference in the Prospectus;
(c) at a specified date not more than
five days prior to the date of
delivery of such respective letter,
there was any change in the
consolidated capital stock, decline
in stockholders' equity or increase
in long-term debt of the Company
and its subsidiaries, or other
items specified by the Underwriter,
in each case as compared with
amounts shown in the latest balance
sheets included or incorporated by
reference in the Final Prospectus,
except in each case for changes,
decreases or increases which the
Final Prospectus discloses have
occurred or may occur or which are
described in such letters; and
(d) for the period from the closing
date of the latest consolidated
statements of income included or
incorporated by reference in the
Effective Prospectus and the Final
Prospectus to a specified date not
more than five days prior to the
date of delivery of such respective
letter, there were any decreases in
total revenues or net income of the
Company, or other items specified
by the Underwriter, or any
increases in any items specified by
the Underwriter, in each
case as compared with the
corresponding period of the
preceding year, except in each case
for decreases which the Final
Prospectus discloses have occurred
or may occur or which are described
in such letter.
They have carried out certain specified
procedures, not constituting an audit, with
respect to certain amounts, percentages and
financial information specified by the
Underwriter which are derived from
the general accounting records of the
Company and its subsidiaries, which appear
in the Effective Prospectus and the Final
Prospectus and have compared and agreed such
amounts, percentages and financial
information with the accounting records of
the Company and its subsidiaries or to
analyses and schedules prepared by the
Company and its subsidiaries from its
detailed accounting records.
In the event that the letters to be
delivered referred to above set forth any
such changes, decreases or increases, it
shall be a further condition to the
obligations of the Underwriter that
the Underwriter shall have
determined, after discussions with officers
of the Company responsible for financial and
accounting matters and with Ernst & Young
LLP, that such changes, decreases or
increases
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as are set forth in such letters do not
reflect a material adverse change in the
stockholders' equity or long-term debt of
the Company as compared with the amounts
shown in the latest consolidated balance
sheets of the Company included in the Final
Prospectus, or a material adverse change in
total revenues or net income, of the
Company, in each case as compared with the
corresponding period of the prior year.
h. The Trust Agreement, the Guarantee and the Indenture
shall have been executed and delivered, in each case
in a form reasonably satisfactory to you;
i. Subsequent to the respective dates as of which
information is given in the Registration Statement,
and except as stated therein, neither the Company nor
the Trust have sustained any material loss or
interference with their business or properties from
fire, flood, hurricane, earthquake, accident or other
calamity, whether or not covered by insurance, or
from any labor dispute or any court or governmental
action, order or decree, or become a party to or the
subject of any litigation which is material to the
Company or the Trust, nor shall there have been any
material adverse change, or any development involving
a prospective material adverse change, in the
business, properties, key personnel, capitalization,
net worth, results of operations or condition
(financial or other) of the Company or the Trust,
which loss, interference, litigation or change, in
the judgment of the Underwriter shall render
it unadvisable to commence or continue the offering
or the delivery of the Preferred Securities on the
terms and in the manner contemplated in this
Agreement and in the Registration Statement.
j. On or after the date hereof, none of the Company's
debt securities or the Preferred Securities are rated
by any "nationally recognized statistical rating
organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the
Act.
k. On or after the date hereof there shall not have
occurred any of the following: (i) trading in
securities on the New York Stock Exchange, the
American Stock Exchange, or the over-the-counter
market shall have been suspended or materially
limited or minimum or maximum prices shall have been
established on either of such Exchanges or such
market, or a banking moratorium shall have been
declared by Federal or state authorities; (ii) if at
or prior to the Closing Date trading in securities of
the Company shall have been suspended; or (iii) if
there shall have been such a material change in
general economic, political or financial conditions
or if the effect of international conditions on the
financial markets in the United States such as in the
judgment of the Underwriter makes it
impracticable or inadvisable to proceed with the
offering or the delivery of the Preferred Securities
on the terms and in the manner contemplated in the
Registration Statement.
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30
l. All such opinions, certificates, letters and
documents delivered pursuant to this Agreement will
comply with the provisions hereof only if they are
reasonably satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and their
counsel. The Company shall furnish to the
Underwriter such conformed copies of such
opinions, certificates, letters and documents in such
quantities as the Representatives shall reasonably
request.
m. There shall have been furnished to the Underwriters a
certificate, dated the Closing Date and addressed to
the Underwriter, signed by the Chief Executive
Officer and by the Chief Financial Officer of the
Company and the trustees of the Trust to the effect
that:
(1) the representations and warranties of the
Company and Trust in Section 1 of this
Agreement are true and correct, as if made
at and as of the Closing Date, and the
Company and Trust have complied with all the
agreements and satisfied all the conditions
on its part to be performed or satisfied at
or prior to the Closing Date;
(2) no stop order suspending the effectiveness
of the Registration Statement has been
issued, and no proceedings for that purpose
have been initiated or are pending, or to
their knowledge, threatened under the
Securities Act;
(3) all filings required by Rules 424, 430A and
462 of the Rules and Regulations have been
made;
(4) they have carefully examined the
Registration Statement, the Effective
Prospectus and the Final Prospectus, and any
amendments or supplements thereto, and such
documents do not 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; and
(5) since the effective date of the Registration
Statement, there has occurred no event
required to be set forth in an amendment or
supplement to the Registration Statement,
the Effective Prospectus or the Final
Prospectus which has not been so set forth.
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31
The obligations of the Underwriter to purchase and pay for the Optional
Securities shall be subject, in its discretion, to each of the foregoing
conditions to purchase the Firm Securities, except that all references to the
"Closing Date" shall be deemed to refer to the Option Closing Date, if it shall
be a date other than the Closing Date.
7. CONDITION OF THE COMPANY'S AND THE TRUST'S OBLIGATIONS. The
obligations hereunder of the Company and the Trust are subject to the condition
set forth in Section 6(a) hereof.
8. INDEMNIFICATION AND CONTRIBUTION.
a. The Company and the Trust, jointly and severally,
agree to indemnify and hold harmless the Underwriter,
and each person, if any, who controls the Underwriter
within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or
several, to which the Underwriter or controlling
person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out
of or are based in whole or in part upon (i) any
inaccuracy in the representations and warranties of
the Company or the Trust contained herein, (ii) any
failure of the Company or the Trust to perform its or
their obligations hereunder or under law or (iii) any
untrue statement or alleged untrue statement of any
material fact contained in the Registration
Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or
supplement thereto, or in any Blue Sky application or
other written information furnished by the Company
filed in any state or other jurisdiction in order to
qualify any or all of the Preferred Securities under
the securities laws thereof (a "Blue Sky
Application"), or arise out of or are based upon the
omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus,
the Effective Prospectus or Final Prospectus or any
amendment or supplement thereto or any Blue Sky
Application a material fact required to be stated
therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter
and each such controlling person for any legal or
other expenses reasonably incurred by the Underwriter
or such controlling person in connection with
investigating or defending any such loss, claim,
damage, liability or action as such expenses are
incurred; provided, however, that neither the Company
nor the Trust will be liable in any such case to the
extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement,
the Preliminary Prospectus, the Effective Prospectus
or Final Prospectus or such amendment or such
supplement or any Blue Sky Application in reliance
upon and in conformity with written information
furnished to the Company or the Trust by the
Underwriter specifically for use therein (it being
understood that the only information so provided is
the information included in the first, sixth and
eighth paragraphs under the
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32
caption "Underwriting" in any Preliminary
Prospectus and the Final Prospectus and the Effective
Prospectus).
b. The Underwriter will indemnify and hold harmless the
Trust and the Company, each of its directors, each of
its officers who signed the Registration Statement
and each person, if any, who controls the Company
within the meaning of the Securities Act, and each
Administrative Trustee or any other person who
controls the Trust within the meaning of the
Securities Act, against any losses, claims, damages
or liabilities to which the Company or Trust or any
such director, officer or controlling person may
become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in
the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final
Prospectus, or any amendment or supplement thereto,
or any Blue Sky Application, or arise out of or are
based upon the omission or the alleged omission to
state in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final
Prospectus or any amendment or supplement thereto or
any Blue Sky Application a material fact required to
be stated therein or necessary to make the statements
therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity
with written information furnished to the Company and
the Trust by the Underwriter specifically for use
therein (it being understood that the only
information so provided is the information included
in the first, sixth and eighth paragraphs under the
caption "Underwriting" in any Preliminary Prospectus
and in the Effective Prospectus and the Final
Prospectus);
c. Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any
action, including governmental proceedings, such
indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under
this Section 8 notify the indemnifying party of the
commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any
liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such
action is brought against any indemnified party, and
it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent
that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense
thereof, with counsel satisfactory to such
indemnified party; and after notice from the
indemnifying party to such indemnified party of its
election to so assume the defense thereof, the
indemnifying party will not be liable to
32
33
such indemnified party under this Section 8 for any
legal or other expenses subsequently incurred by such
indemnified party in connection with the defense
thereof other than reasonable costs of investigation
except that the indemnified party shall have the
right to employ separate counsel if, in its
reasonable judgment, it is advisable for the
indemnified party to be represented by separate
counsel, and in that event the fees and expenses of
separate counsel shall be paid by the indemnifying
party. Neither the Company nor the Trust will,
without prior written consent of the Underwriter,
settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action,
suit or proceeding (or related cause of action or
portion thereof) in respect of which indemnification
may be sought hereunder (whether or not the
Underwriter is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or
consent includes an unconditional release of such
Underwriter from all liability arising out of such
claim, action, suit or proceeding (or related cause
of action or portion thereof).
d. In order to provide for just and equitable
contribution in circumstances in which the indemnity
agreement provided for in the preceding part of this
Section 8 is for any reason held to be unavailable to
the Underwriter, the Company, or the Trust is
insufficient to hold harmless an indemnified party,
then the Company and the Trust shall contribute to
the damages paid by the Underwriter, and the
Underwriter shall contribute to the damages paid by
the Company and the Trust provided, however, that no
person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
In determining the amount of contribution to which
the respective parties are entitled, there shall be
considered the relative benefits received by each
party from the offering of the Preferred Securities
(taking into account the portion of the proceeds of
the offering realized by each), the parties' relative
knowledge and access to information concerning the
matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement
or omission, and any other equitable considerations
appropriate under the circumstances. The Company, the
Trust and the Underwriter agree that it would not be
equitable if the amount of such contribution were
determined by pro rata or per capita allocation.
Neither the Underwriter nor any person controlling
the Underwriter shall be obligated to make
contribution hereunder which in the aggregate exceeds
the amount paid to the Underwriter as compensation
for its commitment to purchase Preferred Securities
under this Agreement, less the aggregate amount of
any damages which the Underwriter and its controlling
persons have otherwise been required to pay in
respect of the same or any similar claim.
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34
For purposes of this Section, each person, if any,
who controls the Underwriter within the meaning of
Section 15 of the Securities Act shall have the same
rights to contribution as the Underwriter, and each
director of the Company, each officer of the Company
who signed the Registration Statement, and each
person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, shall
have the same rights to contribution as the Company,
and each Administrative Trustee and each person who
controls the Trust within the meaning of Section 15
of the Securities Act, shall have the same right to
contribution as the Trust.
e. The obligations of the Company and the Trust
under this Section 8 shall be in addition to any
liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to
each person, if any, who controls the Underwriter
within the meaning of the Securities Act; and the
obligations of the Underwriter under this
Section 8 shall be in addition to any liability which
the Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each
officer and director of the Company and to each
person, if any, who controls the Company within the
meaning of the Securities Act, and to each person who
controls the Trust within the meaning of the
Securities Act.
9. SURVIVAL CLAUSE. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Trust, the
Company, its officers and the Underwriter set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this
34
35
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, the Underwriter or any controlling person, the Trust or any
Administrative Trustee or controlling person of the Trust (ii) any termination
of this Agreement and (iii) delivery of and payment for the Preferred
Securities.
10. EFFECTIVE DATE. This Agreement, after due execution, shall
become effective at whichever of the following times shall first occur: (i)
execution and delivery of this Agreement by the parties hereto or (ii) at such
time after the Registration Statement has become effective as the Underwriter
shall release the Firm Securities for sale to the public; provided, however,
that the provisions of Sections 5, 8, 9 and 10 hereof shall at all times be
effective. For purposes of this Section 10, the Firm Securities shall be deemed
to have been so released upon the release by the Underwriter for publication, at
any time after the Registration Statement has become effective, of any newspaper
advertisement relating to the Firm Securities or upon the release by the
Underwriter of telegrams offering the Firm Securities for sale to securities
dealers, whichever may occur first.
11. TERMINATION.
a. The Company's obligations under this Agreement may be
terminated by the Company by notice to the
Underwriter (i) at any time before it becomes
effective in accordance with Section 10 hereof, or
(ii) in the event that the condition set forth in
Section 7 shall not have been satisfied at or prior
to the First Closing Date.
b. This Agreement may be terminated by the Underwriter
by notice to the Company and the Trust (i) at any
time before it becomes effective in accordance with
Section 10 hereof; (ii) in the event that at or prior
to the First Closing Date the Company or the Trust
shall have failed, refused or been unable to perform
any agreement on the part of the Company or the Trust
to be performed hereunder or any other condition to
the obligations of the Underwriter hereunder is not
fulfilled; (iii) if at or prior to the Closing Date
trading in securities on the New York Stock Exchange,
the American Stock Exchange or the over-the-counter
market shall have been suspended or materially
limited or minimum or maximum prices shall have been
established on either of such Exchanges or such
market, or a banking moratorium shall have been
declared by Federal or state authorities; (iv) if at
or prior to the Closing Date trading in securities of
the Company shall have been suspended; or (v) if
there shall have been such a material change in
general economic, political or financial conditions
or if the effect of international conditions on the
financial markets in the United States shall be such
as, in the Underwriter reasonable judgment, makes it
inadvisable to commence or continue the offering of
the Preferred Securities at the offering price to the
public set forth on the cover page of the Prospectus
or to proceed with the delivery of the Securities.
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c. Termination of this Agreement pursuant to this
Section 11 shall be without liability of any party to
any other party other than as provided in Sections 5
and 8 hereof.
13. NOTICES. All communications hereunder shall be in writing and,
if sent to any of the Underwriter, shall be mailed or delivered or
telegraphed and confirmed in writing to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or if sent to the
Company or the Trust shall be mailed, delivered or telegraphed and confirmed in
writing to the Company or the Trust at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
14. MISCELLANEOUS. This Agreement shall inure to the benefit of
and be binding upon the Underwriter, the Company and the Trust and their
respective successors and legal representatives. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this Agreement.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Company, the Trust and the Underwriter and
for the benefit of no other person except that (i) the representations and
warranties of the Company and the Trust contained in this Agreement shall also
be for the benefit of any person or persons who control the Underwriter within
the meaning of Section 15 of the Securities Act, and (ii) the indemnities by the
Underwriter shall also be for the benefit of the directors of the Company,
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Securities Act and the Administrative Trustee and any person or persons who
control the Trust within the meaning of Section 15 of the Securities Act. No
purchaser of Preferred Securities from the Underwriter will be deemed a
successor because of such purchase. The validity and interpretation of this
Agreement shall be governed by the laws of the State of Massachusetts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
15. NO LIABILITY OF PROPERTY TRUSTEE, DELAWARE TRUSTEE OR
GUARANTEE TRUSTEE.
It is understood and agreed by the parties hereto that (a)
each of the representations, undertakings and agreements herein made on the part
of the Trust is made and intended not as representations, warranties, covenants,
undertakings and agreements of any Trustee of the Trust, including, without
limitation, The Bank of New York as Guarantee Trustee or Property Trustee, or
The Bank of New York (Delaware) as Delaware Trustee, in their individual
capacity, but is made and intended for the purpose of binding only the Trust,
and (b) under no circumstances shall any Trustee, including The Bank of New York
as Guarantee Trustee or Property Trustee or The Bank of New York (Delaware) as
Delaware Trustee be personally liable for any breach or failure of any
obligation, representation, warranty, or covenant made or undertaken by the
Trust under this Agreement except, if such breach or failure is due to any gross
negligence or wilful misconduct of the Trustee.
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If the foregoing is in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
between the Company, the Trust and the Underwriter.
Very truly yours,
LITCHFIELD FINANCIAL CORPORATION
By:
----------------------------------------
Name:
Title:
LITCHFIELD CAPITAL TRUST I
By: Litchfield Financial Corporation,
as sponsor
By:
-------------------------------------
Name:
Title:
Confirmed and accepted as
of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ GULL
By:
-------------------------------
Name:
Title:
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SCHEDULE I
UNDERWRITER
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------------------------------------------------------- ----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Gull.................................
----------------
Total Firm Securities to be Purchased.............
================
38