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TEXTRON FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
December __, 1999
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From time to time, Textron Financial Corporation, a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein (the "Underwriters"), for whom the underwriters named therein are
acting as representatives (the "Representatives"). The standard provisions set
forth herein may be incorporated by reference in any such underwriting agreement
(an "Underwriting Agreement"). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
Agreement. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time senior debt securities
(the "Securities") to be issued pursuant to the provisions of the Indenture,
dated as of December ___, 1999, between the Company and SunTrust Bank, Atlanta,
as Trustee (the "Trustee"), as the same may be from time to time amended or
supplemented (the "Indenture"). The Securities will have varying designations,
maturities, rates and times of payment of interest, selling prices and
redemption terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and has also filed with the Commission a prospectus supplement
specifically relating to the Offered Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Act"). The term Registration Statement
means the registration statement as amended to the date of the Underwriting
Agreement. The term Basic Prospectus means the prospectus included in the
Registration Statement. The term Prospectus means the Basic Prospectus together
with the prospectus supplement specifically relating to the Offered Securities,
as filed with the Commission pursuant to Rule 424. The term preliminary
prospectus means any preliminary form of the Prospectus filed with the
Commission pursuant to Rule 424. As used herein, the terms "Registration
Statement," "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall
include in each case the material, if any, incorporated by reference therein.
The term Underwriters' Securities means the Offered Securities to be
purchased by the Underwriters herein. The term Contract Securities means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Representatives
as compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
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Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Representatives determine that such reduction shall be
otherwise and so advise the Company.
III.
The Company is advised by the Representatives that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Representatives' judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be by wire transfer of
immediately available funds to an account designated by the Company, upon
delivery to the Representatives for the respective accounts of the several
Underwriters of the Underwriters' Securities registered in such names and in
such denominations as the Representatives shall request in writing not less than
two full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Underwriters' Securities are herein
referred to as the Closing Date.
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission and
there shall have been no material adverse change in the condition,
financial or otherwise, earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (excluding, for purposes of this paragraph, any amendments
or supplements filed after the date of the Underwriting Agreement); and
the Representatives shall have received, on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the foregoing effect. Such certificate will also
provide that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing
Date. The officer making such certificate may rely upon the best of his
knowledge as to proceedings pending or threatened;
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(ii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading, of
a review indicating possible negative implications or of any review for
a possible change that does not indicate the direction of the possible
change, in the rating accorded any of the securities of the Company or
Textron Inc., a Delaware corporation ("Textron"), by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Act; and
(iii) there shall not have occurred (A) any change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus or (B) any change in the condition,
financial or otherwise, or in the earnings, business or operations of
Textron and its subsidiaries, taken as a whole, from that set forth in
its most recent Annual Report on Form 10-K, as supplemented by any
Current Reports on Form 8-K and/or its most recent Quarterly Report on
Form 10-Q, filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), that, in either such case, in the
judgment of the Representatives, is material and adverse and that makes
it, in the judgment of the Representatives, impracticable to market the
Offered Securities on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇ & Case LLP, counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit A.
(c) The Underwriters shall have received on the Closing Date
an opinion of the General Counsel of the Company, dated the Closing
Date, to the effect set forth in Exhibit B.
(d) The Underwriters shall have received on the Closing Date
an opinion of counsel for Textron, dated the Closing Date, to the
effect set forth in Exhibit C.
(e) The Underwriters shall have received on the Closing Date
an opinion of counsel for the Underwriters, dated the Closing Date, to
the effect set forth in Exhibit D.
(f) The Underwriters shall have received, as of the date of
the Closing Date, a letter, dated as of the Closing Date, in form and
substance satisfactory to the Representatives, from Ernst & Young LLP,
independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Registration Statement and the Prospectus.
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VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Representatives, without charge, four
signed copies of the Registration Statement including exhibits and
materials, if any, incorporated by reference therein and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as the Representatives may
reasonably request. The terms "supplement" and "amendment" or "amend"
as used in this Agreement shall include all documents filed by the
Company with the Commission subsequent to the date of the Basic
Prospectus, pursuant to the Exchange Act, which are deemed to be
incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish the Representatives a copy of each such proposed amendment or
supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities, as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
its own expense, to the Underwriters, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law.
(d) To qualify the Offered Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and to pay all expenses
(including fees and disbursements of counsel) in connection with such
qualification and in connection with the determination of the
eligibility of the Offered Securities for investment under the laws of
such jurisdictions as the Representatives may designate.
(e) To make generally available to the Company's security
holders as soon as practicable an earnings statement covering a
twelve-month period beginning after the date of the Underwriting
Agreement, which shall satisfy the provisions of Section 11(a) of the
Act and the applicable rules and regulations thereunder.
(f) The Company will, whether or not any sale of the Offered
Securities is consummated, pay all expenses incident to the performance
of its obligations under this Agreement, including the fees and
disbursements of its accountants and counsel, the cost of printing and
delivery of the Registration Statement, any preliminary prospectus, the
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Prospectus, all amendments thereof and supplements thereto, the
Indenture, this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the
Offered Securities, the fees and disbursements, including fees of
counsel, incurred in connection with the qualification of the Offered
Securities for sale and determination of eligibility for investment of
the Offered Securities under the securities or Blue Sky laws of each
such jurisdiction as the Underwriters may reasonably designate, the
fees and disbursements of the Trustee and the fees of any agency that
rates the Offered Securities, the cost of providing any CUSIP or other
identification for the notes and the fees and expenses of any
depository for the Offered Securities.
(g) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company substantially similar to the Offered
Securities, without the prior written consent of the Representatives.
VII.
The Company represents and warrants to each Underwriter that:
(a) As of the date hereof, when any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement) after
the date hereof, when any supplement to the Prospectus is filed with
the Commission after the date hereof and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the
Prospectus, as supplemented as of any such time, and the Indenture
complies and will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the Exchange Act and the respective
rules thereunder, (ii) the Registration Statement does not and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading and (iii) the Prospectus
does not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, provided that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement or
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of an Underwriter
specifically for use in connection with the preparation of the
Registration Statement and the Prospectus.
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(b) There has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries taken as a whole from
that set forth in the Prospectus.
(c) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly
authorized by the Company, and this Agreement has been duly executed
and delivered by the Company.
(d) The Indenture and the Support Agreement, dated May 25,
1994 between the Company and Textron (the "Support Agreement"), have
each been duly authorized, executed and delivered by the Company and
each constitutes a valid and binding agreement of the Company
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
(e) The Offered Securities have been duly authorized and, when
executed by the Company, authenticated by the Trustee and issued in
accordance with the Indenture and delivered pursuant to the provisions
of this Agreement against payment therefor as described in the
Registration Statement and the Prospectus, will constitute valid and
legally binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in accordance with
their terms, except as enforceability thereof may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity and
except as rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability and except further as enforcement thereof may be limited
by (x) requirements that a claim with respect to any Offered Securities
denominated other than in U.S. dollars (or a foreign currency or
currency unit judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (y) governmental authority to limit, delay or
prohibit the making of payments outside the United States.
(f) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and its subsidiaries taken as a
whole.
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(g) Each of Cessna Finance Corporation, Litchfield Financial
Corporation, RFC Capital Corporation, Systran Financial Services
Holding Company and Westminster Development Bank (collectively, the
"Significant Subsidiaries") is a corporation duly organized, validly
existing and in good standing in the jurisdiction of its incorporation,
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and its subsidiaries taken as a
whole. Except as disclosed in the Registration Statement and the
Prospectus, the Company owns of record, directly or indirectly, all of
the outstanding shares of capital stock of each of the Significant
Subsidiaries free and clear of any lien, adverse claim, security
interest, equity or other encumbrance.
(h) The execution and delivery of this Agreement and the
Indenture by the Company and the consummation of the transactions
contemplated herein and therein will not contravene any provision of
applicable law or the Certificate of Incorporation or By-Laws of the
Company or any other agreement or instrument binding upon the Company
or any of the Company's Significant Subsidiaries or any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over the Company or such Significant Subsidiaries, except such
contraventions as would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company
and its subsidiaries taken as a whole and no consent, approval or
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement or the Indenture, and the consummation
of the transactions contemplated hereby, except such as are required
pursuant to state securities or Blue Sky Laws.
(i) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(j) The statements under the captions "Description of Debt
Securities", "Description of [Insert title of Offered Securities]",
"Underwriting" and "Plan of Distribution" in the Prospectus insofar as
they constitute a summary of this Agreement,
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the Indenture and the [Insert title of Offered Securities], fairly
present the information called for by Form S-3 with respect to such
documents.
(k) The statements included under the caption "Legal
Proceedings" in the Company's registration statement on Form 10 insofar
as they describe statements of law or legal conclusions are accurate
and fairly present the information required to be shown.
(l) The Support Agreement has not been amended since the date
thereof and remains in full force and effect.
VIII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus or the Prospectus (if used within the
period set forth in paragraph (c) of Article VI hereof and as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the
Company by any Underwriter expressly for use therein.
Each Underwriter agrees severally and not jointly to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party. In case any such proceeding 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 reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Article for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding
the foregoing, in any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense
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of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or relating proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Representatives in the
case of parties indemnified pursuant to the second preceding paragraph and by
the Company in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any proceeding in respect of which any indemnified party is a
party unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matters of
such proceeding.
If the indemnification provided for in this Article VIII is unavailable
to an indemnified party under the first or second paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other in connection with the
offering of the Offered Securities shall be deemed to be in the same proportion
as the total net proceeds from the offering of such Offered Securities (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters in respect thereof. The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VIII were determined by pro
rata allocation or by any other method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other
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expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Article VIII, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities underwritten and distributed to the public by such Underwriter were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VIII are several, in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters, and not joint.
The remedies provided for in this Article VIII are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Article
VIII and the representations and warranties of the Company in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Offered
Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company, if (a) after
the execution and delivery of the Underwriting Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Representatives, is material and adverse and (b) in the case of any of the
events specified in clauses (a) (i) through (iv), such event, in the judgment of
the Representatives, makes it impracticable to market the Offered Securities on
the terms and in the manner contemplated in the Prospectus.
If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase the Offered Securities which it or they have agreed to
purchase hereunder, and the aggregate principal amount of the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Offered Securities, the other Underwriters shall be obligated severally in the
proportions which the respective amounts of the Offered Securities set forth
opposite their names in the Underwriting Agreement bear to the aggregate
principal amount of the Offered Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other
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proportions as you may specify, to purchase the Offered Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase;
provided that in no event shall the principal amount of the Offered Securities
which any Underwriter has agreed to purchase hereunder be increased pursuant to
this Article IX by an amount in excess of one-tenth of such principal amount of
the Offered Securities without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase the Offered Securities which it or they agreed to purchase hereunder
and the aggregate principal amount of the Offered Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is more than one-tenth of the aggregate principal amount of the Offered
Securities, and arrangements satisfactory to you and the Company for the
purchase of such Offered Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or of the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph or any such termination shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
X.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the Offered
Securities.
XI.
This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Offered
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
XII.
Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by each Representative alone on behalf of the
Underwriters, and any such action taken by the Representatives jointly or by
each Representative alone shall be binding upon the Underwriters. All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given at the addresses
set forth in the Underwriting Agreement.
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Notices to the Company shall be given at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to the General Counsel, telephone: (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
XIII.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
XIV.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
12
14
SCHEDULE I
DELAYED DELIVERY CONTRACT
[insert date]
Dear Sirs:
The undersigned hereby agrees to purchase from Textron Financial
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned
$
principal amount of the Company's [state title of issue] (the "Securities"),
offered by the Company's Prospectus dated ___________, 1999 and Prospectus
Supplement dated _________ __, ____, receipt of copies of which are hereby
acknowledged, at a purchase price of ______________ of the principal amount
thereof plus accrued interest and on the further terms and conditions set forth
in this contract. The undersigned does not contemplate selling Securities prior
to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
---- ------ --------------
______________ $__________________ _______________
______________ $__________________ _______________
______________ $__________________ _______________
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company by wire transfer of
immediately available funds to an account designated by the Company at 10:00
A.M. (New York time) on the Delivery Date, upon delivery to the undersigned of
the Securities to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may
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15
designate by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
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16
This contract shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflicts of laws
provisions thereof.
Yours very truly,
________________________________________
(Purchaser)
By______________________________________
________________________________________
(Title)
________________________________________
(Address)
Accepted:
TEXTRON FINANCIAL CORPORATION
By_______________________________
Title:
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17
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please Print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
---------------------- ---------------------- -------------------
---------------------- ---------------------- -------------------
---------------------- ---------------------- -------------------
---------------------- ---------------------- -------------------
---------------------- ---------------------- -------------------
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EXHIBIT A
OPINION OF COUNSEL FOR THE COMPANY
The opinion of Counsel for the Company, to be delivered pursuant to
Article V, paragraph (b) of the document entitled Textron Financial Corporation
Underwriting Agreement Standard Provisions (Debt) shall be to the effect that:
(a) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable in accordance with its terms, except as (1) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and (2) the availability of equitable remedies may be limited by
equitable principles of general applicability and except further as
enforceability thereof may be limited by (x) requirements that a claim
with respect to any Notes denominated other than in U.S. dollars (or a
foreign currency or currency unit) judgment in respect of such claim be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (y) governmental authority to
limit, delay or prohibit the making of payments outside the United
States, and the Indenture has been duly qualified under the Trust
Indenture Act,
(b) the Offered Securities have been duly authorized by the
Company and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters or by institutional investors, if any, pursuant to Delayed
Delivery Contracts, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and will be entitled to the benefits of the
Indenture, except as (1) enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and (2) the availability of equitable
remedies may be limited by equitable principles of general
applicability and except further as enforceability thereof may be
limited by (x) requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a foreign currency or
currency unit judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (y) governmental authority to limit, delay or
prohibit the making of payments outside the United States,
(c) the execution and delivery of, and the performance by the
Company of its obligations under the Underwriting Agreement have been
duly authorized by the Company and the Underwriting Agreement has been
duly executed and delivered by the Company,
(d) the execution and delivery of, and the performance by the
Company of its obligations under the Delayed Delivery Contracts, if
any, have been duly authorized by the Company and the Delayed Delivery
Contracts, if any, have been duly executed and delivered by the
Company, and are valid and binding agreements of the Company
enforceable in accordance with their respective terms, except as (1)
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and (2) and the availability of equitable remedies may be limited by
equitable principles of general applicability,
(e) the execution and delivery of the Underwriting Agreement
and the Indenture by the Company and the consummation of the
transactions contemplated
A-1
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therein will not contravene any provision of applicable law of the
State of New York (except as rights to indemnity and contribution under
the Underwriting Agreement may be limited by applicable law) or the
Certificate of Incorporation or By-Laws of the Company,
(f) the Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an "investment
company" within the meaning of the Investment Company Act,
(g) the statements in the Prospectus under "Description of the
Securities", "Description of the [Offered Securities]", "Plan of
Distribution" and "Underwriting", insofar as such statements constitute
a summary of legal matters, documents or proceedings referred to
therein has been reviewed by such counsel and is correct in all
material respects,
(h) such counsel is of the opinion that the Registration
Statement and Prospectus, as amended or supplemented, if applicable
(except as to financial statements contained therein and the notes
thereto or omitted therefrom and the schedules and other financial and
statistical data included therein, as to which such counsel need not
express any opinion) comply as to form in all material respects with
the Act and the Trust Indenture Act and the rules and regulations
thereunder, and
(i) such counsel shall also state that nothing has come to
such counsel's attention that causes such counsel to believe that
(except for the financial statements contained therein or omitted
therefrom and the notes thereto and the schedules and other financial
and statistical data included therein, as to which such counsel need
not express any belief) the Registration Statement, filed with the
Commission pursuant to the Act, when it became effective, 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 not misleading, or that (except for the financial statements
contained therein or omitted therefrom and the notes thereto and the
schedules and other financial and statistical data included therein, as
to which counsel need not express any belief) the Registration
Statement and the Prospectus on the date of the Underwriting Agreement
and the Prospectus, as amended or supplemented, if applicable, on the
Closing Date contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
A-2
20
which they were made, not misleading; provided that such counsel may
state that such counsel's opinion and belief is based upon such
counsel's participation in the preparation of the Registration
Statement and the Prospectus and any amendment and supplements thereto
(including the documents incorporated by reference therein) and review
and discussion of the contents thereof (including the documents
incorporated by reference therein), but is without independent check or
verification except as specified,
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the Textron Financial Corporation Underwriting
Agreement Standard Provisions (Debt). In rendering such opinion, such counsel
may rely as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or other
written statements of public officials.
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EXHIBIT B
OPINION OF GENERAL COUNSEL OF THE COMPANY
The opinion of the General Counsel of the Company, to be delivered
pursuant to Article V, paragraph (c) of the document entitled Textron Financial
Corporation Underwriting Agreement Standard Provisions (Debt) shall be to the
effect that:
(a) the Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and its subsidiaries taken as a
whole,
(b) each of Cessna Finance Corporation, Litchfield Financial
Corporation, REC Capital Corporation, Systran Financial Services
Holding Company and Westminster Development Bank (collectively, the
"Significant Subsidiaries") is a corporation duly organized, validly
existing and in good standing in the jurisdiction of its incorporation,
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and its subsidiaries taken as a
whole; all of the issued and outstanding capital stock of each such
Significant Subsidiary has been duly authorized and validly issued and
is fully paid and non-assessable, and the Company owns of record,
directly or indirectly, all of the outstanding shares of capital stock
of each of the Significant Subsidiaries free and clear of any lien,
adverse claim, security interest, equity or other encumbrance,
(c) the execution and delivery of the Underwriting Agreement
and the Indenture by the Company and the consummation of the
transactions contemplated therein will not contravene any provision of
applicable law (except as rights to indemnity and contribution under
the Underwriting Agreement may be limited by applicable law) or to such
counsel's knowledge after due inquiry, any other agreement or
instrument binding upon the Company or any of the Company's Significant
Subsidiaries or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or such
Significant Subsidiaries, except such contraventions as would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and its subsidiaries taken as a
whole, and no consent, approval or authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by
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the Company of its obligations under the Underwriting Agreement or the
Indenture, and the consummation of the transactions contemplated
thereby, except such as are required pursuant to state securities or
Blue Sky Laws,
(d) the statements included under the caption "Legal
Proceedings" in the Company's registration statement on Form 10,
insofar as they describe statements of law or legal conclusions are
accurate and fairly present the information required to be shown,
(e) such counsel (1) is of the opinion that each document
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except as to financial statements contained therein or
omitted therefrom and the notes thereto and the schedules and other
financial and statistical data included therein, as to which such
counsel need not express any opinion) complied when so filed as to form
in all material respects with such act and the rules and regulations
thereunder, (2) has no reason to believe that (except for the financial
statements contained therein or omitted therefrom and the notes thereto
and the schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief) any part
of the Registration Statement (including the documents incorporated by
reference therein), filed with the Commission pursuant to the Act, when
such part became effective, 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 not misleading, (3)
is of the opinion that the Registration Statement and Prospectus, as
amended or supplemented, if applicable (except as to financial
statements contained therein or omitted therefrom and the notes thereto
and the schedules and other financial and statistical data included
therein, as to which such counsel need not express any opinion) comply
as to form in all material respects with the Act and the Trust
Indenture Act and the rules and regulations thereunder, (4) has no
reason to believe that (except for the financial statements contained
therein or omitted therefrom and the notes thereto and the schedules
and other financial and statistical data included therein, as to which
counsel need not express any belief) the Registration Statement and the
Prospectus on the date of the Underwriting Agreement and the
Prospectus, as amended or supplemented, if applicable, on the Closing
Date contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that such counsel may state
that such counsel's opinion and belief is based upon such counsel's
participation in the preparation of the Registration Statement and the
Prospectus and any amendment and supplements thereto (including the
documents incorporated by reference therein) and review and discussion
of the contents thereof (including the documents incorporated by
reference therein), but is without independent check or verification
except as specified.
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the Textron Financial Corporation Underwriting
Agreement Standard Provisions (Debt). In rendering such opinion, such counsel
may rely as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or other
written statements of public officials.
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EXHIBIT C
FORM OF OPINION OF COUNSEL FOR TEXTRON INC.
The opinion of Counsel for Textron to be delivered pursuant to Article
V, paragraph (d) of the document entitled Textron Financial Corporation
Underwriting Agreement Standard Provisions (Debt) shall be to the effect that:
(a) Textron has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware. Textron is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership or leasing of property requires such qualification and
where the failure to be qualified or in good standing would have a
material adverse effect upon its operations or financial condition,
(b) the Support Agreement has been duly authorized, executed
and delivered by Textron and is a valid and binding agreement of
Textron enforceable by the parties thereto in accordance with its terms
by the parties thereto and by any party which lends funds to the
Company (each, a "Third-Party Beneficiary"), including the holders of
the Offered Securities issued by the Company pursuant to the
Underwriting Agreement (but with respect to any Third-Party Beneficiary
only which the Company is indebted to such Third-Party Beneficiary for
money borrowed), except as: (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability, and
(c) the execution, delivery and performance by Textron of the
Support Agreement does not, and will not, contravene any provisions of
currently applicable law, any current provision of the Certificate of
Incorporation or By-Laws of Textron, each as of the date hereof, or, to
the best of such counsel's knowledge, any current agreement or other
instrument currently binding upon Textron, and no consent, approval or
authorization of any governmental body is required in connection with
the performance of the Support Agreement.
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the Textron Financial Corporation Underwriting
Agreement Standard Provisions (Debt). In rendering such opinion, such counsel
may rely as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of Textron and certificates or other
written statements of public officials.
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EXHIBIT D
FORM OF OPINION OF COUNSEL FOR THE UNDERWRITERS
The opinion of Counsel for the Underwriters, to be delivered pursuant
to Article V, paragraph (e) of the document entitled Textron Financial
Corporation Underwriting Agreement Standard Provisions (Debt) shall be to the
effect that:
(a) the Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law) and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any Offered
Securities denominated other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit,
delay or prohibit the making of payments outside the United States, and
the Indenture has been duly qualified under the Trust Indenture Act,
(b) the Offered Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement,
and when issued and authenticated in the manner provided for in the
Indenture and delivered against payment of the consideration therefor
specified in the Underwriting Agreement or the Delayed Delivery
Contract, as the case may be, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law), and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any Offered
Securities denominated other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit,
delay or prohibit the making of payments outside the United States,
(c) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company,
(d) the Delayed Delivery Contracts, if any, has been duly
authorized, executed and delivered by the Company and (assuming due
authorization, execution and delivery thereof by the institutional
investor named therein) constitutes a valid and legally
D-1
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binding agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement in considered in a proceeding in
equity or at law),
(e) the information in the Prospectus under "Description of
the Securities" and "Description of the [Offered Securities]", insofar
as such statements constitute a summary of the legal matters, documents
or proceedings referred to therein has been reviewed by such counsel
and is correct in all material respects,
(f) the Registration Statement and Prospectus, excluding the
documents incorporated by reference therein, as amended or
supplemented, if applicable (except as to financial statements and
supporting schedules contained therein or omitted therefrom and the
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1"), as to
which such counsel need not express any opinion), comply as to form in
all material respects with the requirements of the Act and the
applicable rules and regulations thereunder,
(g) such counsel shall also state that nothing has come to
such counsel's attention that would lead such counsel to believe that
the Registration Statement or any post-effective amendment thereto
(except for financial statements and supporting schedules and other
financial data included or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which such counsel need not make any
statement), at the time the Registration Statement or any
post-effective amendment thereto became effective, contained an 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 not misleading or that the Prospectus, as amended or
supplemented (except for financial statements and schedules and other
financial data included or incorporated therein or omitted therefrom,
as to which such counsel need not make any statement), if applicable,
on the date of the Underwriting Agreement and on the Closing Date,
included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that such counsel may state that
their opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendment and supplements thereto (other than the documents
incorporated by reference therein) and review and discussion of the
contents thereof (including the documents incorporated by reference
therein), but is without independent check or verification except as
specified.
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the Textron Financial Corporation Underwriting
Agreement Standard Provisions (Debt). In rendering such opinion such counsel may
rely as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or other
written statements of public officials.
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