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EXHIBIT 1.1
LITCHFIELD FINANCIAL CORPORATION
$50,000,000
% NOTES DUE
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UNDERWRITING AGREEMENT
_______________, 1997
MCDONALD & COMPANY SECURITIES, INC.
J.C. BRADFORD & CO.
TUCKER ANTHONY INCORPORATED
c/o McDonald & Company Securities, Inc.
800 Superior Avenue
Cleveland, OH 44114
Ladies and Gentlemen:
Litchfield Financial Corporation, a Massachusetts corporation (the
"Company"), proposes to sell to the underwriters named in Schedule I hereto (the
"Underwriters") for whom you are acting as the representative (the
"Representatives") an aggregate $45,000,000 principal amount of its ___% Notes
Due ___ (the "Firm Notes"). The Firm Notes are to be sold to the Underwriters,
acting severally and not jointly, in such amounts as are set forth in Schedule I
hereto opposite the name of such Underwriter. In addition, for the sole purpose
of covering overallotments in connection with the Firm Notes, the Company also
proposes to grant to the Underwriters an option to purchase up to an additional
$6,750,000 in principal amount of the % Notes Due (the "Option
Notes"). The Firm Notes and the Option Notes to be purchased pursuant to this
Underwriting Agreement are herein called "the Notes." The Notes are to be issued
pursuant to an Indenture, to be dated as of November ___, 1997, between the
Company and The Bank of New York, New York, New York as trustee (the "Trustee").
Such Indenture, as amended and supplemented, is herein referred to as the
"Indenture."
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1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company 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 and a Form T-1 (File No. 22-_____) pursuant to
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), has filed such amendments thereto, if any, and such amended
preliminary prospectuses as may have been required to the date hereof,
and will file such additional amendments thereto and such amended
prospectuses as may hereafter be required, relating to the Notes.
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
you. Such registration statement, including the prospectus, Part II,
all financial schedules and exhibits thereto, all information
incorporated by reference thereto, and all information deemed to be a
part of such Registration Statement pursuant to Rule 430A under the
Securities Act, as amended at the time when it shall become effective,
is herein referred to as the "Registration Statement," and the
prospectus 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 included as part of the Registration
Statement on the date when the Registration Statement became effective
is referred to herein as the "Effective Prospectus." Any prospectus
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, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
the Trust Indenture 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 by any
Underwriter specifically for use therein (it being understood that the
only information so provided is the information included in the first
sentence of the last paragraph on the cover page and in the fourth and
fifth 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
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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, the Trust Indenture Act and
the Rules and Regulations and will comply with the requirements of the
Securities Act, the Exchange Act, the Trust Indenture 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 by any
Underwriter specifically for use therein (it being understood that the
only information so provided is the information included in the first
sentence of the last paragraph on the cover page and in the fourth and
fifth 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 an ownership interest) is duly organized and validly
existing and in good 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 is owned by the Company, 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 Notes have been duly and validly authorized and,
when executed and authenticated in accordance with the Indenture and
delivered and paid for by the Underwriters pursuant to this Agreement,
will constitute legal, valid and binding obligations of the Company,
entitled to the benefits of the Indenture, and will conform in all
material
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respects to the description thereof contained in the Effective
Prospectus and the Final Prospectus.
(f) The Company has full legal right, power and authority
to enter into this Agreement and the Indenture and to sell and deliver
the Notes to the Underwriters as provided herein, and this Agreement
and the Indenture have been duly authorized, executed and delivered by
the Company and constitute valid and binding agreements of the Company
enforceable against the Company in accordance with their terms. The
Indenture conforms in all material respects to the requirements of and
has been qualified under the Trust Indenture Act. 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
Indenture by the Company or the consummation by the Company of the
transactions contemplated hereby or thereby, except such as have been
obtained and such as may be required by the National Association of
Securities Dealers, Inc. or under the Securities Act, the Trust
Indenture Act or state securities or Blue Sky laws in connection with
the purchase and distribution of the Notes by the Underwriters. The
issue and sale of the Notes by the Company, the Company's performance
of this Agreement and the Indenture and the consummation of the
transactions contemplated hereby or thereby will not result in a breach
or violation of, or conflict with, any of the terms and provisions of,
or constitute a default by the Company or any of its subsidiaries
under, 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 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 governmental agency or body applicable to
the Company, or any subsidiary or any of their respective properties.
Neither the Company nor any subsidiary is in violation of its Articles
of Organization, partnership agreement or joint venture agreement, as
the case may be, or bylaws or any law, administrative rule or
regulation or arbitrators' or administrative or court decree, judgment
or order or in violation 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.
(g) The consolidated financial statements and the related
notes of the Company included 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 included in or as schedules to the
Registration Statement conform to the requirements of the Securities
Act, the Exchange Act and the Rules and Regulations
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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 "Prospectus
Summary," "Use of Proceeds," "Capitalization," "Selected Consolidated
Financial Information," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Business" and
"Principal Stockholders" fairly presents the information set forth
therein on the basis stated in the Effective Prospectus and the Final
Prospectus. Ernst & Young, whose reports appear or are incorporated by
reference in the Effective Prospectus and the Final Prospectus, are
independent accountants as required by the Securities Act and the Rules
and Regulations.
(h) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996, and its Quarterly Reports filed on
Form 10-Q for the quarters ended March 31, 1997, June 30, 1997 and
September 30, 1997, and its current reports filed on Form 8-K dated
July 7, 1997 and July 22, 1997, respectively, at the time of filing
with the Commission, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable
and the Rules and Regulations and none of such documents or statements
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(i) Subsequent to December 31, 1996, neither the Company
nor any subsidiary has sustained any material loss or interference with
its business or properties from fire, flood, hurricane, 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 or incorporated by reference 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 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, obligations under capital leases or short-term
borrowings 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 general affairs, management,
business, prospects, financial position, net worth or results of
operations of the Company or its subsidiaries, except in each case as
described or incorporated by reference in or contemplated by the
Effective Prospectus and the Final Prospectus.
(j) Except as described or incorporated by reference 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
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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.
(k) There are no contracts or other documents required by
the Securities Act or by the Rules and Regulations to be described or
incorporated by reference 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, incorporated by
reference, or filed as required.
(l) Except as described or incorporated by reference 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.
(m) 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.
(n) The Company and its subsidiaries have filed all
federal, state and local income 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 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.
(o) The Company and its subsidiaries operate their
business 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
business 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
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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.
(p) 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.
(q) 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, management,
business affairs or business prospects of the Company or any of its
subsidiaries.
(r) 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.
(s) The Company has not taken, directly or indirectly,
any action designed, or which might reasonably be expected to cause or
result in, or which will constitute, stabilization or manipulation of
the price of the Notes to facilitate the sale of the Notes, and
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the Company is not aware of any such action taken or to be taken by any
affiliates of the Company.
2. Purchase, Sale and Delivery of the Notes.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each of the
Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase at a purchase price of $_______ per each $1,000
principal amount, the number of Firm Notes set forth opposite such
Underwriter's name in Schedule I hereto.
(b) The Company also grants to the Underwriters an
option to purchase, solely for the purpose of covering overallotments
in the sale of Firm Notes, all or any portion of the Option Notes
at the purchase price set forth above. The option granted hereby may
be exercised as to all or any part of the Option Notes at any time
(but only once) within 30 days after the date the Registration
Statement becomes effective. The Underwriters shall not be under any
obligation to purchase any Option Notes prior to the exercise of such
option. The option granted hereby may be exercised by the Underwriters
by the Representatives giving written notice to the Company setting
forth the amount of Option Notes to be purchased and the date and time
for delivery of an payment for such Option Notes and stating that the
Option Notes referred to therein are to be used for the purpose of
covering overallotments in connection with the distribution and sale
of the Firm Notes. 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, 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 two full business days thereafter. In either event, the
date so set forth shall not be more than 10 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 Underwriters, and,
subject to the terms and conditions herein set forth, the Underwriters
shall become obligated to purchase, for the account of each
Underwriter, from the Company, severally and not jointly, the amount
of Option Notes specified in such notice. Option Notes shall be
purchased for the accounts of the Underwriters in proportion to the
number of Firm Notes set forth opposite such Underwriter's name in
Schedule I hereto, except that the respective purchase obligations of
each Underwriter shall be adjusted so that no Underwriter shall be
obligated to purchase fractional Option Notes.
(c) Certificates in definitive form for the Notes
which each Underwriter has agreed to purchase hereunder shall be
delivered by or on behalf of the Company to the Underwriters for the
account of such Underwriter against payment by such Underwriter or on
its behalf of the purchase price therefor by certified or official bank
check payable in next day funds to the order of the Company, at the
offices of McDonald & Company Securities, Inc. ("McDonald"), 800
Superior Avenue, Cleveland, Ohio 44114, or at such
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other place as may be agreed upon by McDonald and the Company, at 10:00
A.M., Nashville time, on the third full business day after this
Agreement becomes effective, or at such other time not later than the
seventh full business day thereafter as the Representatives and the
Company may determine, 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."
Certificates in definitive form for the Option Notes which each
Underwriter shall have agreed to purchase hereunder shall be similarly
delivered by or on behalf of the Company on the Option Closing Date.
The certificates in definitive form for the Notes to be delivered will
be in good delivery form and in such denominations and registered in
such names as McDonald may request not less than 48 hours prior to the
First Closing Date or the Option Closing Date, as the case may be. Such
certificates will be made available for checking and packaging at a
location in New York, New York as may be designated by you, at least 24
hours prior to the First Closing Date or the Option Closing Date, as
the case may be. It is understood that you may (but shall not be
obligated to) make payment on behalf of any Underwriter or Underwriters
for the Notes to be purchased by such Underwriter or Underwriters. No
such payment shall relieve such Underwriter or Underwriters from any of
its or their obligations hereunder.
3. Offering by the Underwriters. After the Registration Statement
becomes effective, the several Underwriters propose to offer for sale to the
public the Firm Notes and any Option Notes which may be sold at the price and
upon the terms set forth in the Final Prospectus.
4. Covenants of the Company. The Company covenants and agrees
with each of the Underwriters that:
(a) The Company shall comply with the provisions of and
make all requisite filings with the Commission pursuant to Rules 424
and 430A of the Rules and Regulations and to notify you promptly (in
writing, if requested) of all such filings. The Company shall notify
you 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; the Company shall
prepare and file with the Commission, promptly upon your request, any
amendments of or supplements to the Registration Statement, the
Effective Prospectus or the Final Prospectus which, in your opinion,
may be necessary or advisable in connection with the distribution of
the Notes; 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 you after reasonable
notice thereof. The Company shall advise you 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 Notes for offering or
sale in any jurisdiction, or of the institution of any proceedings for
any such purpose; and the Company shall use its best efforts to prevent
the issuance of any stop order
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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) The Company will take or cause to be taken all
necessary action and furnish to whomever you direct such information as
may be reasonably required in qualifying the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Underwriters may designate (which shall not include the State of New
York unless the Company otherwise requests) and will continue such
qualifications in effect for as long as may be reasonably necessary to
complete the distribution. The Company shall not be required to qualify
as a foreign corporation or 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.
(c) Within the time during which a Final Prospectus
relating to the Notes is required to be delivered under the Securities
Act, the Company shall 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 Notes 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 shall promptly notify you
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) The Company will furnish without charge to the
Representatives and make available to the Underwriters 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 Underwriters may reasonably request. The Company will deliver to
each Underwriter a copy of each document incorporated by reference in
the effective Prospectus and the Final Prospectus which has not
previously been furnished.
(e) The Company will (i) deliver to you at such office or
offices as you may designate as many copies of the Preliminary
Prospectus and Final Prospectus as you may reasonably request, and (ii)
for a period of not more than nine months after the Registration
Statement becomes effective, send to the Underwriters as many
additional copies of the Final Prospectus and any supplement thereto as
you may reasonably request.
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(f) The Company shall 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 earning 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) The Company will apply the net proceeds from the sale
of the Notes as set forth under the caption "Use of Proceeds" in the
Final Prospectus.
(h) During a period of five years from the effective date
of the Registration Statement, the Company will furnish to the
Representatives copies of all reports and other communications
(financial or other) furnished by the Company to its shareholders and,
as soon as available, copies of any reports or financial statements
furnished or filed by the Company to or with the Commission or any
national securities exchange on which any class of securities of the
Company may be listed.
(i) The Company will not at any time, directly or
indirectly, take any action designed, or which might reasonably be
expected to cause or result in, or which will constitute, stabilization
or manipulation of the price of the Notes to facilitate the sale or
resale of any of the Notes. The Company will not make bids for or
purchases of or induce bids for or purchases of, directly or
indirectly, any Notes until the distribution of all Notes has been
completed.
5. Expenses. The Company agrees with the Underwriters that (a)
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
hereunder, including, but not limited to, (i) the Commission's registration fee,
(ii) the expenses of printing (or reproduction) and distributing the
Registration Statement (including the financial statements therein and all
amendments and exhibits thereto), each Preliminary Prospectus, the Effective
Prospectus, the Final Prospectus, any amendments or supplements thereto, and
this Agreement and other underwriting documents, including Underwriter's
Questionnaires, Underwriter's Powers of Attorney, Blue Sky Memoranda and
Agreements Among Underwriters, (iii) fees and expenses of accountants and
counsel for the Company, (iv) expenses of registration or qualification of the
Notes under state Blue Sky and securities laws, including the fees and
disbursements of counsel to the Underwriters in connection therewith, (v) filing
fees paid or incurred by the Underwriters and related fees and expenses of
counsel to the Underwriters in connection with filings with the National
Association of Securities Dealers, Inc. ("NASD"), (vi) all travel, lodging and
reasonable living expenses incurred by the Company in connection with marketing,
dealer and other meetings attended by the Company and the Underwriters in
marketing the Notes, (vii) the costs and charges of the Company's transfer
agent, registrar, paying agent, and redemption agent, and the cost of preparing
the certificates for the Notes, (viii) the fees and expenses of the Trustee in
connection with the Indenture and the Notes, and (ix) all other costs and
expenses
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incident to the performance of their obligations hereunder not otherwise
provided for in this Section; and (b) all out-of-pocket expenses, including
counsel fees, disbursements and expenses, incurred by the Underwriters in
connection with investigating, preparing to market and marketing the Notes and
proposing to purchase and purchasing the Notes under this Agreement, will be
borne and paid by the Company if the sale of the Notes provided for herein is
not consummated by reason of the termination of this Agreement by the Company
pursuant to Section 12(a)(i), or because of any failure or refusal on the part
of the Company to comply with the terms or fulfill any of the conditions of this
Agreement. Except as provided in this Section 5, the Underwriters shall pay all
of their own expenses.
6. Conditions of the Underwriters' Obligations. The respective
obligations of the Underwriters to purchase and pay for the Firm Notes shall be
subject, in their discretion, to the accuracy of the representations and
warranties of the Company 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 of all of their covenants and agreements hereunder
and to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective not later than 5:30
P.M., Washington, D.C. time, on the day following the date of this
Agreement, or such later time and date as shall have been consented to
by the Representative and all filings required by Rule 424, Rule 430A
and Rule 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
Underwriters, 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 your satisfaction; and the NASD, upon review of
the terms of the public offering of the Notes, shall not have objected
to such offering, such terms or the Underwriters' participation in the
same.
(b) No Underwriter shall have advised the Company 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 your judgment,
is material, or omits to state a fact which, in your judgment, is
material and is required to be stated therein or necessary to make the
statements therein not misleading and the Company shall not have cured
such untrue statement of fact or stated a statement of fact required to
be stated therein.
(c) The Representatives shall have received an opinion,
dated the Closing Date, from Hutchins, Wheeler & Dittmar, counsel for
the Company, to the effect that:
(i) The Company has been duly organized and is
validly existing in good standing as a corporation under the
laws of the Commonwealth of
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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.
(ii) Each of the Company's subsidiaries is
validly existing and in good standing 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 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 is owned
beneficially and of record by the Company, 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.
(iii) The Indenture has been duly authorized,
executed and delivered, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms, except as enforceability may be
limited by general equitable principles, bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer,
fraudulent conveyance or other laws affecting creditors'
rights generally. The Indenture has been qualified under the
Trust Indenture Act. The Notes have been duly and validly
authorized and when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Underwriters as provided herein will constitute
legal, valid and binding obligations of the Company, entitled
to the benefits of the Indenture, and conformed to the
description thereof contained in the Effective Prospectus and
the Final Prospectus.
(iv) 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 consummation by the Company of the transactions
contemplated hereby, except such as have been obtained under
the Securities Act and such as may be required by the NASD and
under state securities
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or Blue Sky laws in connection with the purchase and
distribution of the Notes by the several Underwriters. The
performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated
hereby will not conflict with or result in a breach or
violation by the Company of any of the terms or provisions of,
or constitute a default by the Company 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.
(v) The Company has full legal right, power and
authority to enter into this Agreement and the Indenture and
to issue, sell and deliver the Notes to be sold by it to the
Underwriters as provided herein, and this Agreement has been
duly authorized, executed and delivered by the Company and
constitutes the valid and legally binding obligation of the
Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by general
equitable principles, bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or
other laws affecting creditors' rights generally.
(vi) 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.
(vii) 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 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.
(viii) 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
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or any decree of any court or governmental agency or body
having jurisdiction over the Company or any of its
subsidiaries.
(ix) 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, Rule 430A and Rule 462 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.
(x) The information in the Effective Prospectus
and the Final Prospectus under the caption "Description of the
Notes," insofar as it purports to summarize the provisions of
the Notes, is correct in all material respects.
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 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).
(d) The Underwriters shall have received an opinion or
opinions, dated the Closing Date, of Bass, Berry & Sims, counsel for
the Underwriters, with respect to the Registration Statement and the
Final Prospectus, and such other related matters as the Underwriters
may require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling
them to pass upon such matters. Such counsel may rely on Hutchins,
Wheeler & Dittmar as to matters of Massachusetts law.
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(e) The Representatives shall have received from Ernst &
Young, 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 Representatives, 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:
(i) In their opinion, the financial statements
and schedules examined by them and included 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;
(ii) On the basis of a reading of the latest
available interim consolidated financial statements
(unaudited) of the Company and its subsidiaries, a reading of
the minute books of the Company and its subsidiaries,
inquiries of officials of the Company responsible for
financial and accounting matters and other specified
procedures, all of which have been agreed to by the
Representative, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements
included 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 substantially consistent with the basis for the
corresponding amounts in the audited financial
statements included 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
Underwriters in each case as compared with amounts
shown in the latest
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balance sheets included 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 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 Underwriters, or any increases in any items
specified by the Underwriters, 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.
(iii) They have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information specified by
you 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 Underwriters that the Underwriters
shall have determined, after discussions with officers of the Company
responsible for financial and accounting matters and with Ernst &
Young, that such changes, decreases or increases 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.
(f) There shall have been furnished to you a certificate,
dated the Closing Date and addressed to you, signed by the Chief
Executive Officer and by the Chief Financial Officer of the Company to
the effect that:
(i) the representations and warranties of the
Company in Section 1 of this Agreement are true and correct,
as if made at and as of the Closing Date, and the Company has
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;
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(ii) 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;
(iii) all filings required by Rule 424, Rule 430A
and Rule 462 of the Rules and Regulations have been made;
(iv) 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
(v) 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.
(g) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, and except as stated therein, the Company and its
subsidiaries have not sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane,
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 and its subsidiaries taken as a whole, 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 and its
subsidiaries taken as a whole, which loss, interference, litigation or
change, in your judgment shall render it unadvisable to commence or
continue the offering of the Notes at the offering price to the public
set forth on the cover page of the Prospectus or to proceed with the
delivery of the Notes.
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 the Representative and its counsel. The Company
shall furnish to the Representative such conformed copies of such opinions,
certificates, letters and documents in such quantities as the Representative
shall reasonably request.
The respective obligations of the Underwriters to purchase and pay for
the Option Notes shall be subject, in their discretion, to each of the foregoing
conditions to purchase the Firm Notes, 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.
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7. Condition of the Company's Obligations. The obligations
hereunder of the Company are subject to the condition set forth in Section 6(a)
hereof.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter, and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which such 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 contained herein, (ii) any failure of the Company to
perform its 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 Notes 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 such 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 the Company will not 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 by any Underwriter specifically for use therein (it being
understood that the only information so provided is the information
included in the last sentence of the first paragraph on the cover page
and in the fourth and fifth paragraphs under the caption "Underwriting"
in any Preliminary Prospectus and the Final Prospectus and the
Effective Prospectus).
(b) Each Underwriter will indemnify and hold harmless 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 against any losses,
claims, damages or liabilities to which the Company 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
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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 by any Underwriter specifically for use
therein (it being understood that the only information so provided is
the information included in the last sentence of the first paragraph on
the cover page and in the fourth and fifth 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 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 and any other Underwriter to be represented
by separate counsel, and in that event the fees and expenses of
separate counsel shall be paid by the indemnifying party. The Company
shall not, without the prior written consent of each Underwriter,
settle or compromise or consent to the entry of any judgment in any
pending or threatened action or claim or related cause of action or
portion of such cause of action in respect of which the Company
reasonably believes any Underwriter may seek indemnification hereunder
(whether or not such Underwriter is a party of such action or claim),
unless such settlement, compromise or consent includes an unconditional
release of such Underwriter from all liability arising out of such
action or claim (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 Underwriters or the Company or is insufficient to
hold
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harmless an indemnified party, then the Company shall contribute to the
damages paid by the Underwriters, and the Underwriters shall contribute
to the damages paid by the Company 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 Notes (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 and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even
if the Underwriters were treated as one entity for such purpose). No
Underwriter or person controlling such Underwriter shall be obligated
to make contribution hereunder which in the aggregate exceeds the
underwriting discount applicable to the Notes purchased by such
Underwriter under this Agreement, less the aggregate amount of any
damages which such Underwriter and its controlling persons have
otherwise been required to pay in respect of the same or any similar
claim. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and
not joint. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as such
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.
9. Default of Underwriters. If any Underwriter defaults in its
obligation to purchase Notes hereunder and if the total amount of Notes which
such defaulting Underwriter agreed but failed to purchase is ten percent or less
of the total amount of Notes to be sold hereunder, the non-defaulting
Underwriters shall be obligated severally to purchase (in the respective
proportions which the amount of Notes set forth opposite the name of each
non-defaulting Underwriter in Schedule I hereto bears to the total amount of
Notes set forth opposite the names of all the non-defaulting Underwriters), the
Notes which such defaulting Underwriter or Underwriters agreed but failed to
purchase. If any Underwriter so defaults and the total amount of Notes with
respect to which such default or defaults occur is more than ten percent of the
total amount of Notes to be sold hereunder, and arrangements satisfactory to the
other Underwriters and the Company for the purchase of such Notes by other
persons (who may include the non-defaulting Underwriters) are not made within 36
hours after such default, this Agreement, insofar as it relates to the sale of
the Notes, will terminate without liability on the part of the non-defaulting
Underwriters or the Company except for (i) the provisions of Section 8 hereof,
and (ii) the expenses to be paid or reimbursed by the Company pursuant to
Section 5. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 9. Nothing herein shall
relieve a defaulting Underwriter from liability for its default.
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10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers and the Underwriters set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this 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, any Underwriter or any
controlling person, (ii) any termination of this Agreement and (iii) delivery of
and payment for the Notes.
11. Effective Date. This Agreement shall become effective at
whichever of the following times shall first occur after execution of this
Agreement: (i) at 11:30 A.M., Washington, D.C. time, on the next full business
day following the date on which the Registration Statement becomes effective or
(ii) at such time after the Registration Statement has become effective as the
Representative shall release the Firm Notes for sale to the public; provided,
however, that the provisions of Sections 5, 8, 10 and 11 hereof shall at all
times be effective. For purposes of this Section 11, the Firm Notes shall be
deemed to have been so released upon the release by the Representative for
publication, at any time after the Registration Statement has become effective,
of any newspaper advertisement relating to the Firm Notes or upon the release by
the Representatives of telegrams offering the Firm Notes for sale to securities
dealers, whichever may occur first.
12. Termination.
(a) The Company's obligations under this Agreement may be
terminated by the Company by notice to the Representatives (i) at any
time before it becomes effective in accordance with Section 11 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
Representatives by notice to the Company (i) at any time before it
becomes effective in accordance with Section 11 hereof; (ii) in the
event that at or prior to the first Closing Date the Company shall have
failed, refused or been unable to perform any agreement on the part of
the Company to be performed hereunder or any other condition to the
obligations of the Underwriters 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 your reasonable judgment, makes it inadvisable to commence or
continue the offering of the Notes to the public.
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(c) This Agreement shall automatically terminate upon
satisfaction and discharge of the Notes by the Company in accordance
with the Indenture.
(d) Termination of this Agreement pursuant to this
Section 12 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 Underwriters, shall be mailed or delivered or telegraphed
and confirmed in writing to the Representatives, McDonald & Company Securities,
Inc., 800 Superior Avenue, Cleveland, Ohio 44114, Attention: Mark W. Biche or if
sent to the Company shall be mailed, delivered or telegraphed and confirmed in
writing to the Company at 789 Main Road, Stamford, Vermont 05352, Attention:
Richard A. Stratton.
14. Miscellaneous. This Agreement shall inure to the benefit of
and be binding upon the several Underwriters, the Company 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 and the several Underwriters and for
the benefit of no other person except that (i) the representations and
warranties of the Company and contained in this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Securities Act, and (ii) the indemnities by the
Underwriters 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. No purchaser of Notes from any 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 Ohio. 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. You hereby represent and warrant to the Company that you have
authority to act hereunder on behalf of the several Underwriters, and any action
hereunder taken by you will be binding upon all the Underwriters.
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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 and each of the several Underwriters.
Very truly yours,
LITCHFIELD FINANCIAL CORPORATION
By:
-------------------------------
Title:
-----------------------------
Confirmed and accepted as of the
date first above written.
MCDONALD & COMPANY SECURITIES, INC.
J.C. BRADFORD & CO.
TUCKER ANTHONY INCORPORATED
For themselves and as
Representative of the Several
Underwriters
By:
----------------------------------
Title:
-------------------------------
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SCHEDULE I
UNDERWRITERS
Principal Amount
of Firm Notes to Be
Underwriter Purchased
- ------------------------------------------------- ---------------------------
McDonald & Company Securities, Inc...............
---------------------------
J.C. Bradford & Co...............................
---------------------------
Tucker Anthony Incorporated......................
---------------------------
TOTAL............................. $
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