ASSOCIATES CORPORATION OF NORTH AMERICA
DEBT SECURITIES
Underwriting Agreement
[DATE]
To the Representative or Representatives named
in Schedule A hereto of the Underwriters
named in Schedule B hereto
Gentlemen:
The undersigned Associates Corporation of North America, a
Delaware corporation (the "Company"), confirms its agreement with
the several underwriters named in Schedule B hereto (the
"Underwriters"), as set forth below. If the firm or firms listed
in Schedule B hereto include only the firm or firms listed in
Schedule A hereto (the "Representatives"), then the terms
"Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
1. Description of Securities. The Company proposes to issue and
sell debt securities of the title and amount set forth in
Schedule A hereto (the "Securities"), to be issued under the
indenture identified in Schedule A hereto (the "Indenture")
between the Company and the trustee named therein (the
"Trustee"). If so indicated in Schedule A hereto, the Company
also proposes to issue warrants (the "Warrants") to purchase the
aggregate principal amount listed in Schedule A hereto of the
debt securities listed in Schedule A hereto (the "Warrant
Securities") to be issued pursuant to the provisions of the
Indenture. The Warrants, if any, are to be issued pursuant to
the provisions of the Warrant Agreement listed in Schedule A
hereto (the "Warrant Agreement") between the Company and the
Warrant Agent named in Schedule A hereto (the "Warrant Agent").
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter
that:
(a) A registration statement on Form S-3 (with the file numbers
set forth in Schedule A hereto), including a prospectus, relating
to the Securities has been carefully prepared by the Company in
conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, has been filed
with the Commission and has become effective. Such registration
statement and prospectus may have been amended or supplemented
from time to time prior to the date of this Agreement; any such
amendment or supplement was so prepared and filed and any such
amendment has become effective. A prospectus supplement (the
"Prospectus Supplement") relating to the Securities, the
Warrants, if any, and the Warrant Securities, if any, has been so
prepared and will be filed pursuant to Rule 424 under the Act.
Copies of such registration statement and prospectus, any such
amendment or supplement, the Prospectus Supplement and all
documents incorporated by reference therein which were filed with
the Commission on or prior to the date of this Agreement
(including one fully executed copy of the registration statement
and of each amendment thereto for each of you and for counsel for
the Underwriters) have been delivered to you. Such registration
statement and prospectus, as amended or supplemented to the date
of this Agreement and as supplemented by the Prospectus
Supplement, are herein referred to as the "Registration
Statement" and the "Prospectus". Any reference herein to the
Registration Statement or Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein which
were filed with the Commission on or prior to the date of this
Agreement, and any reference to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement or
Prospectus shall be deemed to refer to and include the filing of
any document with the Commission deemed to be incorporated by
reference therein after the date of this Agreement.
(b) When each part of the registration statement became effective
such part conformed in all material respects to the requirements
of the Act, the Trust Indenture Act and the Rules and Regulations
and did not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and on
the date of this Agreement, upon the effectiveness of any
amendment to the Registration Statement or the filing of any
supplement to the Prospectus and at the Closing Date (as
hereinafter defined), the Registration Statement and Prospectus
and any amendment or supplement thereto will conform in all
material respects to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations and will not include
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; except that the foregoing
shall not apply to statements in or omissions from any such
document in reliance upon, and in conformity with, written
information furnished to the Company by you, or by any
Underwriter through you, specifically for use in the preparation
thereof.
(c) The documents incorporated by reference in the Registration
Statement or Prospectus, when they became effective or were filed
with the Commission, as the case may be, under the Securities
Exchange Act of 1934 (the "Exchange Act"), conformed, and any
documents so filed and incorporated by reference after the date
of this Agreement will, when they are filed with the Commission,
conform, in all material respects to the requirements of the Act
and the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder.
(d) The financial statements of the Company and its subsidiaries
included in the Registration Statement and Prospectus fairly
present the financial condition of the Company and its
subsidiaries as of the dates indicated and the results of
operations and changes in financial position for the periods
therein specified in conformity with generally accepted
accounting principles consistently applied throughout the periods
involved (except as otherwise stated therein). Coopers & Xxxxxxx
LLP, which has examined certain of such financial statements, as
set forth in their report included in the Registration Statement
and Prospectus, are independent public accountants with respect
to the Company and its subsidiaries as required by the Act and
the Rules and Regulations.
(e) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of its jurisdiction
of incorporation; the Company's subsidiaries have been duly
incorporated and are existing corporations in good standing under
the laws of their respective jurisdictions of incorporation; each
of the Company and its subsidiaries has full power and authority
(corporate and other) to conduct its business as described in the
Registration Statement and Prospectus; each of the Company and
its subsidiaries is duly qualified to do business in each
jurisdiction in which it owns or leases real property or in which
the conduct of its business requires such qualification; and all
of the outstanding shares of capital stock of each such
subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable and the Company owns all
outstanding shares of capital stock of each significant
subsidiary (as defined in Rule 405 under the Act) (except as
otherwise stated in the Registration Statement) in each such case
subject to no security interest, other encumbrance or adverse
claim.
(f) The Indenture, the Warrant Agreement, if any, the Securities,
the Warrants, if any, and the Warrant Securities, if any, have
been duly authorized, the Indenture has been duly qualified under
the Trust Indenture Act, executed and delivered, and the
Indenture and the Warrant Agreement, if any, constitute, and the
Securities, the Warrants, if any, and the Warrant Securities, if
any, when duly executed, authenticated, issued and delivered as
contemplated hereby, by the Indenture, by the Delayed Delivery
Contracts (as hereinafter defined), if any, and by the Warrant
Agreement, if any, will constitute valid and legally binding
obligations of the Company in accordance with their terms
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity
principles.
(g) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, which are
material to the Company and its subsidiaries, taken as a whole,
and there has not been any material change, on a consolidated
basis, in the capital stock, short-term debt or long-term debt of
the Company and its subsidiaries, or any material adverse change,
or any development involving a prospective material adverse
change, in the condition (financial or other), business,
prospects, net worth or results of operations of the Company and
its subsidiaries.
(h) Except as set forth in the Prospectus, there is not pending
or, to the knowledge of the Company, threatened, any action, suit
or proceeding to which the Company or any of its subsidiaries is
a party before or by any court or governmental agency or body, in
which there is a reasonable possibility of an adverse decision
which could result in any material adverse change in the
condition (financial or other), business, prospects, net worth or
results of operations of the Company and its subsidiaries, taken
as a whole, or might materially and adversely affect the
properties or assets thereof; and there are no contracts or
documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by
the Act or by the Rules and Regulations which have not been so
filed or which will not be so filed prior to the date of any
Prospectus Supplement.
(i) The Company and its subsidiaries hold good and marketable
title in fee simple, except as otherwise stated in the
Prospectus, to all of the real property referred to therein as
being owned by them, free and clear of all liens and
encumbrances, except liens and encumbrances referred to in the
Prospectus (or reflected in the financial statements included
therein) and liens and encumbrances which are not material in the
aggregate and do not materially interfere with the conduct of the
business of the Company and its subsidiaries; and the properties
referred to in the Prospectus as held under lease by the Company
or any of its subsidiaries are held by them under valid and
enforceable leases with such exceptions as do not materially
interfere with the conduct of the business of the Company and its
subsidiaries.
(j) The performance of this Agreement and of any Delayed Delivery
Contracts and the consummation of the transactions herein
contemplated (including, without limitation, the issuance of the
Warrant Securities, if any, upon the exercise of the Warrants, if
any) will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute,
any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them is bound or to
which any of the property of the Company or any of its
subsidiaries is subject, the Company's charter or by-laws, or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its
properties; no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required
for the consummation of the transactions contemplated by this
Agreement and any Delayed Delivery Contracts in connection with
the issuance or sale of the Securities, the Warrants, if any, or
the Warrant Securities, if any, by the Company, except such as
may be required under the Act, the Trust Indenture Act or state
securities laws; and the Company has full power and authority to
authorize, issue and sell the Securities, Warrants, if any, and
Warrant Securities, if any, as contemplated by this Agreement.
3. Purchase, Sale and Delivery of Securities. On the basis of
the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from
the Company, at the purchase price set forth in Schedule A
hereto, the amount of Securities, and the amount of Warrants, if
any, set forth opposite the name of such Underwriter in Schedule
B hereto reduced by such Underwriter's portion of any Contract
Securities, determined as provided below.
If so authorized in Schedule A hereto, the Underwriters may
solicit offers from investors of the types set forth in the
Prospectus to purchase Securities, and Warrants, if any, from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"). Such contracts shall be substantially in the form
of Exhibit I hereto but with such changes therein as the Company
may approve. Securities, and Warrants, if any, to be purchased
pursuant to Delayed Delivery Contracts are herein called
"Contract Securities". When Delayed Delivery Contracts are
authorized in Schedule A, the Company will enter into a Delayed
Delivery Contract in each case where a sale of Contract
Securities arranged through you has been approved by the Company
but, except as the Company may otherwise agree, such Delayed
Delivery Contracts must be for at least the minimum amount of
Contract Securities set forth in Schedule A hereto, and the
aggregate amount of Contract Securities may not exceed the amount
set forth in such Schedule. The Company will advise you not
later than 10:00 A.M., New York City time, on the third full
business day preceding the Closing Date (or at such later time as
you may otherwise agree) of the sales of the Contract Securities
which have been so approved. You and the other Underwriters will
not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts.
The amount of Securities, and Warrants, if any, to be purchased
by each Underwriter as set forth in Schedule B hereto shall be
reduced by an amount which shall bear the same proportion to the
total amount of Contract Securities as the amount of Securities,
and Warrants, if any, set forth opposite the name of such
Underwriter bears to the total amount of Securities, and
Warrants, if any, set forth in Schedule B hereto, except to the
extent that you determine that such reduction shall be otherwise
than in such proportion and so advise the Company; provided,
however, that the total amount of Securities, and Warrants, if
any, to be purchased by all Underwriters shall be the total
amount of Securities, and Warrants, if any, set forth in Schedule
B hereto less the aggregate amount of Contract Securities.
The Securities, and Warrants, if any, to be purchased by the
Underwriters will be delivered by the Company to you for the
accounts of the several Underwriters at the office specified in
Schedule A hereto against payment of the purchase price therefor
by certified or official bank check or checks in immediately
available funds (unless otherwise specified in Schedule A hereto)
payable to the order of the Company at the office, on the date
and at the time specified in such Schedule A, or at such other
time not later than eight full business days thereafter as you
and the Company determine, such time being herein referred to as
the "Closing Date". Such Securities, and Warrants, if any, will
be prepared in definitive form and in such authorized
denominations and registered in such names as you may require
upon at least two business days' prior notice to the Company and
will be made available for checking and packaging at the office
at which they are to be delivered on the Closing Date (or such
other office as may be specified for that purpose in Schedule A)
at least one business day prior to the Closing Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make
payment to the Company on behalf of any other Underwriter for
Securities, and Warrants, if any, to be purchased by such
Underwriter. Any such payment by you shall not relieve any such
Underwriter of any of its obligations hereunder.
The Company will pay to you on the Closing Date for the accounts
of the Underwriters any fee, commission or other compensation
which is specified in Schedule A hereto. Such payment will be
made by certified or official bank check in New York Clearing
House funds.
4. Covenants. The Company covenants and agrees with each
Underwriter that:
(a) The Company will cause the Prospectus Supplement to be filed
pursuant to Rule 424 under the Act and will notify you promptly
of such filing. During the period in which a prospectus relating
to the Securities, Warrants, if any, and Warrant Securities, if
any, is required to be delivered under the Act, the Company will
notify you promptly of the time when any amendment to the
Registration Statement has become effective or any subsequent
supplement to the Prospectus has been filed and of any request by
the Commission for any amendment of or supplement to the
Registration Statement or Prospectus or for additional
information; it will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus which, in your opinion, may
be necessary or advisable in connection with the distribution of
the Securities, and Warrants, if any, by the Underwriters; it
will file no amendment or supplement to the Registration
Statement or Prospectus (other than any prospectus supplement
relating to the offering of securities other than the Securities,
the Warrants, if any, and the Warrant Securities, if any,
registered under the Registration Statement or any document
required to be filed under the Exchange Act which upon filing is
deemed to be incorporated by reference therein) to which you
shall reasonably object by notice to the Company after having
been furnished a copy a reasonable time prior to the filing; and
it will furnish to you at or prior to the filing thereof a copy
of any such prospectus supplement or any document which upon
filing is deemed to be incorporated by reference in the
Registration Statement or Prospectus.
(b) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of
the Securities, Warrants, if any, and Warrant Securities, if any,
for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will
promptly use its best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be
issued.
(c) Within the time during which a prospectus relating to the
Securities, Warrants, if any, and Warrant Securities, if any, is
required to be delivered under the Act, the Company will comply
as far as it is able with all requirements imposed upon it by the
Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as necessary
to permit the continuance of sales of or dealings in the
Securities, Warrants, if any, and Warrant Securities, if any, as
contemplated by the
provisions hereof and the Prospectus. If during such period any
event occurs as a result of which the 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 or supplement the Registration Statement or
Prospectus to comply with the Act, the Company will promptly
notify you and will amend or supplement the Registration
Statement or Prospectus (at the expense of the Company) so as to
correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to qualify the
Securities, Warrants, if any, and Warrant Securities, if any, for
sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in
effect so long as required for the distribution of the
Securities, Warrants, if any, and Warrant Securities, if any,
except that the Company shall not be required in connection
therewith to qualify as a foreign corporation or to execute a
general consent to service of process in any state. The Company
will also arrange for the determination of the eligibility for
investment for the Securities, Warrants, if any, and Warrant
Securities, if any, under the laws of such jurisdictions as you
may reasonably request.
(e) The Company will furnish to the Underwriters copies of the
Registration Statement and Prospectus (including all documents
incorporated by reference therein), and all amendments and
supplements to the Registration Statement or Prospectus which are
filed with the Commission during the period in which a prospectus
relating to the Securities, Warrants, if any, and Warrant
Securities, if any, is required to be delivered under the Act
(including all documents filed with the Commission during such
period which are deemed to be incorporated by reference therein),
in each case in such quantities as you may from time to time
reasonably request.
(f) So long as any of the Securities, and the Warrant Securities,
if any, are outstanding, the Company agrees to furnish to you (i)
as soon as available, copies of all financial reports to the
Company's security holders generally (other than Associates First
Capital Corporation or other affiliated corporations) and all
reports and financial statements filed by or on behalf of the
Company with the Commission and the New York Stock Exchange and
(ii) from time to time such other information concerning the
Company as you may reasonably request.
(g) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than
15 months after the end of the Company's current fiscal quarter,
an earnings statement (which need not be audited) covering a
12-month period beginning after the date upon which the Prospectus
Supplement is filed pursuant to Rule 424 under the Act which
shall satisfy the provisions of Section 11(a) of the Act.
(h) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will
pay all expenses incident to the performance of its obligations
hereunder, will pay the expenses of printing all documents
relating to the offering, and will reimburse the Underwriters for
any expenses (including fees and disbursements of counsel)
incurred by them in connection with the matters referred to in
Section 4(d) hereof and the preparation of memoranda relating
thereto, for any filing fee of the National Association of
Securities Dealers, Inc. relating to the Securities, Warrants, if
any, and Warrant Securities, if any, and for any fees charged by
investment rating agencies for rating the Securities, and the
Warrant Securities, if any. If the sale of the Securities, and
Warrants, if any, provided for in this Agreement is not
consummated by reason of any failure, refusal or inability on the
part of the Company to perform any agreement on its part to be
performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for
all reasonable out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in
connection with their preparing to market and marketing the
Securities, and Warrants, if any, or in contemplation of
performing their obligations hereunder. The Company shall not in
any event be liable to any of the Underwriters for loss of
anticipated profits from the transactions covered by this
Agreement.
(i) The Company will apply the net proceeds of the sale of the
Securities, Warrants, if any, and Warrant Securities, if any, as
set forth in the Prospectus.
(j) The Company will not, without your consent, offer or sell, or
publicly announce its intention to offer or sell, any debt
securities denominated in U.S. dollars having a maturity of more
than one year (except under prior contractual commitments or
pursuant to bank credit agreements) until after the expiration of
four consecutive business days beginning with and including the
date of this Agreement.
5. Conditions of the Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for the Securities, and
Warrants, if any, as provided herein shall be subject to the
accuracy, as of the date hereof and the Closing Date (as if made
at the Closing Date), of the representations and warranties of
the Company herein, to the performance by the Company of its
obligations hereunder, and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding
for that purpose shall have been instituted or, to the knowledge
of the Company or any Underwriter, threatened by the Commission,
and any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact which in
your opinion is material, or omits to state a fact which in your
opinion is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have
been any material change, on a consolidated basis, in the capital
stock, short-term debt or long-term debt of the Company and its
subsidiaries, or any adverse change, or any development involving
a prospective adverse change in the condition (financial or
other), business, prospects, net worth or results of operations
of the Company and its subsidiaries, taken as a whole, or any
change in the rating assigned to any securities of the Company
which, in your judgment, makes it impractical or inadvisable to
offer or deliver the Securities, and Warrants, if any, on the
terms and in the manner contemplated in the Prospectus.
(d) You shall have received the opinion of the General Counsel or
an Assistant General Counsel to the Company, dated the Closing
Date, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of its jurisdiction
of incorporation; the Company's subsidiaries have been duly
incorporated and are existing corporations in good standing under
the laws of their respective jurisdictions of incorporation; each
of the Company and its subsidiaries has full power and authority
(corporate and other) to conduct its business as described in the
Registration Statement and Prospectus; and each of the Company
and its subsidiaries is duly qualified to do business in each
jurisdiction in which it owns or leases real property or in which
the conduct of its business requires such qualification; and all
of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable and the Company owns
all outstanding shares of capital stock of each significant
subsidiary (as defined in Rule 405 under the Act) (except as
otherwise stated in the Registration Statement) in each such case
subject to no security interest, other encumbrance, or adverse
claim;
(ii) The Indenture, and the Warrant Agreement, if any, have been
duly authorized, executed, delivered, and the Indenture has been
qualified under the Trust Indenture Act; the Indenture, and the
Warrant Agreement, if any, constitute valid and legally binding
instruments in accordance with their terms; the Securities, the
Warrants, if any, and the Warrant Securities, if any, have been
duly authorized, and the Securities, and Warrants, if any,
delivered on the Closing Date have been duly executed,
authenticated, issued and delivered; the Securities, and
Warrants, if any, delivered on the Closing Date constitute, any
Contract Securities when executed, authenticated, issued and
delivered in accordance with the Delayed Delivery Contracts, if
any, the Warrant Agreement, if any, and the Indenture will
constitute, and the Warrant Securities, if any, when executed,
authenticated, issued and delivered pursuant to the Warrant
Agreement, if any, and the Indenture will constitute, valid and
legally binding obligations of the Company in accordance with
their terms and the terms of the Indenture, and the Warrant
Agreement, if any, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Securities, Warrants, if any,
and Warrant Securities, if any, conform to the description
thereof in the Prospectus;
(iii) The Registration Statement has become effective under the
Act and to the best knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been
instituted or, to the knowledge of such counsel, threatened by
the Commission;
(iv) Each part of the registration statement, when such part
became effective, and the Registration Statement and the
Prospectus, and any amendment or supplement thereto, complied as
to form in all material respects with the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations; such
counsel has no reason to believe that either any part of the
registration statement when such part became effective, or the
Registration Statement and the Prospectus or any amendment or
supplement thereto 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; and the documents incorporated by reference in the
Registration Statement or Prospectus, when they became effective
under the Act or were filed with the Commission under the
Exchange Act, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; it being understood that such counsel need
express no opinion as to the financial statements or other
financial data included in any of the documents mentioned in this
clause;
(v) The descriptions in the Registration Statement and Prospectus
of statutes, legal and governmental proceedings, contracts and
other documents are accurate and fairly present the information
required to be shown; and such counsel does not know of any
statutes or legal or governmental proceedings required to be
described in the Prospectus which are not described as required,
or of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus (or then
required to be filed under the Exchange Act if upon such filing
they would be incorporated by reference therein) or to be filed
as exhibits to the Registration Statement which are not described
and filed as required; and
(vi) This Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company; the
performance thereof and the consummation of the transactions
therein contemplated (including, without limitation, the issuance
of the Warrant Securities, if any, upon the exercise of the
Warrants, if any) will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under,
any statute, any agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or by
which it is bound or to which any of the property of the Company
or any of its subsidiaries is subject, the Company's charter or
by-laws, or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction
over the Company or any of its properties; and no consent,
approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the consummation of
the transactions contemplated by this Agreement and any Delayed
Delivery Contracts in connection with the issuance or sale of the
Securities (including the Contract Securities, if any), Warrants,
if any, or Warrant Securities, if any, by the Company, except
such as have been obtained under the Act and the Trust Indenture
Act and such as may be required under state securities laws in
connection with the sale of the Securities, Warrants, if any, and
Warrant Securities, if any.
(e) You shall have received from LeBoeuf, Lamb, Xxxxxx & XxxXxx,
L.L.P., counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the incorporation of the
Company, the validity of the Securities, the Warrants, if any,
the Warrant Securities, if any, the Registration Statement, the
Prospectus and other related matters as you reasonably may
request, and such counsel shall have received such papers and
information as they request to enable them to pass upon such
matters. In rendering their opinion, such counsel may rely on
certificates of the Trustee under the Indenture as to the
execution and authentication of the Securities.
(f) You shall have received, on the Closing Date, a letter from
Coopers & Xxxxxxx LLP, dated the Closing Date, confirming that
they are independent auditors with respect to the Company within
the meaning of the Act and the applicable published rules and
regulations thereunder, and stating, as of the date of such
letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Registration Statement and
Prospectus, as of a date not more than five business days prior
to the date of such letter), the conclusions and findings of such
firm with respect to the financial information and other matters
concerning the Company covered by its draft letter reviewed by
the Representatives prior to the execution of this Agreement, and
affirming, in form and substance satisfactory to the
Representatives and in all material respects, the conclusions and
findings set forth in such draft letter.
(g) You shall have received from the Company a certificate,
signed by the Chairman of the Board, a Vice Chairman, the
President or a Vice President, and by the principal financial or
accounting officer, dated the Closing Date, to the effect that,
to the best of their knowledge based upon reasonable
investigation:
(i) The representations and warranties of the Company in 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;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for
that purpose has been instituted or is threatened by the
Commission; and
(iii) Since the date of this Agreement, there has occurred no
event required to be set forth in an amendment or supplement to
the Registration Statement or Prospectus which has not been so
set forth, and there has been no document required to be filed
under the Exchange Act and the rules and regulations thereunder
that upon such filing would be deemed to be incorporated by
reference in the Prospectus that has not been so filed.
(h) The Company shall have furnished to you such further
certificates and documents as you shall have reasonably
requested.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you. The Company will
furnish you with such conformed copies of such opinions,
certificates, letters and other documents as you shall reasonably
request.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any part of the registration statement when such
part became effective, or in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus supplement, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading; and will reimburse each
Underwriter, as incurred, for any legal or other expenses
reasonably incurred by it in connection with investigating or
defending against such loss, claim, damage, liability or action;
provided, however, that the Company shall 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 an untrue statement or
alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by you, or by any
Underwriter through you specifically for use in the preparation
thereof.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact
contained in any part of the registration statement when such
part became effective, or in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus supplement, or arise out of or are based
upon the omission or alleged omission to state therein 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 therein
in reliance upon and in conformity with written information
furnished to the Company by you, or by such Underwriter through
you, specifically for use in the preparation thereof; and will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or
defending against any such loss, claim, damage, liability or
action.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party, similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs
of investigation.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above, (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 Securities,
and Warrants, if any, 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 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 shall be deemed to be in the same
proportion as the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Company
bear to the total compensation or profit (before deducting
expenses) received or realized by the Underwriters from the
purchase and resale, or underwriting, of the Securities, and
Warrants, if any. The relative fault 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 the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were
to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to in the first sentence of
this subsection (d). The amount paid by an indemnified party as
a result of the losses, claims, damages or liabilities referred
to in the first sentence of this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any action or claim (which shall be limited as provided
in subsection (c) above if the indemnifying party has assumed the
defense of any such action in accordance with the provisions
thereof) which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities,
and Warrants, if any, underwritten by it and distributed to the
public 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 in this subsection (d) to contribute
shall be several in proportion to their respective underwriting
obligations and not joint. Promptly after receipt by an
indemnified party under this subsection (d) of notice of the
commencement of any action against such party in respect of which
a claim for contribution may be made against an indemnifying
party under this subsection (d), such indemnified party shall
notify the indemnifying party in writing of the commencement
thereof if the notice specified in subsection (c) above has not
been given with respect to such action; but the omission so to
notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise
than under this subsection (d).
(e) The obligations of the Company under this Section 6 shall be
in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning
of the Act or the Exchange Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any
liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each
director of the Company (including any person who, with his
consent, is named in the Registration Statement as about to
become a director of the Company), to each officer of the Company
who has signed the Registration Statement and to each person, if
any, who controls the Company within the meaning of the Act or
the Exchange Act.
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company herein
or in certificates delivered pursuant hereto, and the agreements
of the several Underwriters contained in Section 6 hereof, shall
remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any
controlling persons, or the Company or any of its officers,
directors or any controlling persons, and shall survive delivery
of and payment for the Securities, and Warrants, if any.
8. Substitution of Underwriters. (a) If any Underwriter or
Underwriters shall fail to take up and pay for the principal
amount of Securities, and Warrants, if any, agreed by such
Underwriter or Underwriters to be purchased hereunder, upon
tender of such Securities, and Warrants, if any, in accordance
with the terms hereof, and the principal amount of Securities,
and Warrants, if any, not purchased does not aggregate more than
10% of the total principal amount of the Securities, and
Warrants, if any, set forth in Schedule B hereto, the remaining
Underwriters shall be obligated to take up and pay for (in
proportion to their respective underwriting obligations hereunder
as set forth in Schedule B, except as may otherwise be determined
by you) the Securities, and Warrants, if any, which the
withdrawing or defaulting Underwriter or Underwriters agreed but
failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up and
pay for the principal amount of Securities, and Warrants, if any,
agreed by such Underwriter or Underwriters to be purchased
hereunder, upon tender of such Securities, and Warrants, if any,
in accordance with the terms hereof, and the principal amount of
Securities, and Warrants, if any, not purchased aggregates more
than 10% of the total principal amount of Securities, and
Warrants, if any, set forth in Schedule B hereto, and
arrangements satisfactory to you and the Company for the purchase
of such Securities, and Warrants, if any, by other persons are
not made within 36 hours thereafter, this Agreement shall
terminate. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for
such period, not to exceed seven full business days, as you shall
determine in order that the required changes in the Registration
Statement and the Prospectus or in any other documents or
arrangements may be effected. In the event of any such
termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 4(h) and
Section 6) nor shall any Underwriter (other than an Underwriter
who shall have failed, otherwise than for some reason permitted
under this Agreement, to purchase the principal amount of
Securities, and Warrants, if any, agreed by such Underwriter to
be purchased under this Agreement) be under any liability to the
Company (except to the extent provided in Section 6 hereof).
Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any
non-defaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. You shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time
at or prior to the Closing Date if (i) the Company shall have
failed, refused or been unable, at or prior to the Closing Date,
to perform any agreement on its part to be performed hereunder,
(ii) any other condition of the Underwriters' obligations is not
fulfilled, (iii) trading on the New York Stock Exchange or the
American Stock Exchange shall have been wholly suspended, (iv)
minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been
required, on the New York Stock Exchange or the American Stock
Exchange, by such Exchange or by order of the Commission or any
other governmental authority having jurisdiction, (v) a banking
moratorium shall have been declared by Federal or New York
authorities, or (vi) there shall have occurred since the
execution of this Agreement an outbreak or material escalation of
major hostilities in which the United States is involved, a
declaration of war by Congress or other calamity or crisis the
effect of which on the financial markets of the United States is
such as to make it, in your judgment, impractical or inadvisable
to proceed with the completion of the sale of and payment for the
Securities, and Warrants, if any, to be purchased by the
Underwriters. Any such termination shall be without liability of
any party to any other party except that the provisions of
Section 4(h) and Section 6 shall at all times be effective. If
you elect to terminate this Agreement as provided in this
Section, the Company shall be notified promptly by you by
telephone or telegram, confirmed by letter.
10. Notices. All notices or communications hereunder shall be in
writing and if sent to you shall be mailed, delivered or
telegraphed and confirmed to you at your address set forth for
that purpose in Schedule A hereto, or if sent to the Company,
shall be mailed, delivered or telegraphed and confirmed to the
Company at 000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000-0000.
Notices to any Underwriter pursuant to Section 6 hereof shall be
mailed, delivered or telegraphed and confirmed to such
Underwriter's address furnished to the Company in writing for the
purpose of communications hereunder. Any party to this Agreement
may change such address for notices by sending to the parties to
this Agreement written notice of a new address for such purpose.
11. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company and the Underwriters and their
respective successors and the controlling persons, officers and
directors referred to in Section 6 and no other person will have
any right or obligation hereunder.
In all dealings with the Company under this Agreement, you shall
act on behalf of each of the several Underwriters, and any action
under this Agreement taken by you or by any one of you designated
in Schedule A hereto will be binding upon all the Underwriters.
12. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
13. Counterparts. This Agreement may be executed by one or more
of you in one or more counterparts, each of which shall
constitute an original and all of which taken together shall
constitute one and the same Agreement.
If the foregoing correctly sets forth our agreement, please so
indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the
Company and the several Underwriters. Alternatively, the
execution of this Agreement by the Company and its acceptance by
or on behalf of the Underwriters may be evidenced by an exchange
of telegraphic or other written communications.
Very truly yours,
Associates Corporation of North America
By: ---------------------
Title:
ACCEPTED at New York, New York as of the date
first above written on behalf of ourselves and as
Representatives of the other Underwriters, if any,
named in Schedule B hereto.
By: -------------------------------
Title:
EXHIBIT I
ASSOCIATES CORPORATION OF NORTH AMERICA
[Insert specific title of securities*]
DELAYED DELIVERY CONTRACT
--------------------------
[Insert date of initial
public offering]
Associates Corporation of North America
c/o*
Gentlemen:
The undersigned hereby agrees to purchase from Associates
Corporation of North America (hereinafter called the "Company"),
and the Company agrees to sell to the undersigned, [If one
delayed closing, insert -- as of the date hereof, for delivery on
, 19 (the "Delivery Date")]
[$]
principal amount of the Company's
[title of Securities and related
Warrants, if any] (the "Securities"), offered by the Company's
Prospectus relating thereto, receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount
thereof plus accrued interest, if any, and on the further terms
and conditions set forth in this contract.
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in
the principal amounts set forth below:
Delivery Date
Principal Amount
Each of such delivery dates is hereinafter referred to as a
"Delivery Date".]
Payment for the Securities which the undersigned has agreed to
purchase for delivery on [the] [each] Delivery Date shall be made
to the Company or its order by certified or official bank check
in New York Clearing House funds at the office of
at . M., time, on
such Delivery Date upon delivery to the undersigned of the
Securities to be purchased by the undersigned for delivery on
such Delivery Date in definitive form and in such denominations
and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not
less than five full business days prior to such Delivery Date.
If no designation is received, the Securities will be registered
in the name of the undersigned and issued in a denomination equal
to the aggregate principal amount of Securities to be purchased
by the undersigned on such Delivery Date.
* To be completed when the Underwriting Agreement is executed by
the parties thereto.
The obligation of the undersigned to take delivery of and make
payment for, Securities on [the] [each] Delivery Date shall be
subject only to the conditions that (1) investment in the
Securities shall not at such Delivery Date be prohibited under
the laws of any jurisdiction in the United States to which the
undersigned is subject, which investment the undersigned
represents is not prohibited on the date hereof, and (2) the
Company shall have delivered to the Underwriters the principal
amount of the Securities to be purchased by them pursuant to the
Underwriting Agreement referred to in the Prospectus mentioned
above and received payment therefor.
Promptly after completion of the sale 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.
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.
It is understood that the acceptance of this contract and any
other similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first-come,
first-serve basis. 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 between the Company and the
undersigned when such counterpart is mailed or delivered.
This contract shall be governed by, and construed in accordance
with, the laws of the State of New York.
Very truly yours,
---------------------------
(Name of Purchaser)
--------------------------
By
---------------------------
(Title of Signatory)
---------------------------
(Address of Purchaser)
Accepted, as of the above date.
Associates Corporation of North America
By --------------------------
Vice President
SCHEDULE A
Underwriting Agreement dated: [DATE]
Registration Statement No.: 33-55949
Representatives: [UNDEWRITER]
Title of Securities: [SECURITIES]
Indenture: [INDENTURE]
Amount of Securities: [AMOUNT]
Price to Public:
Purchase Price:
Final Maturity: [MATURITY]
Interest Rate: [INTEREST RATE]
Redemption: Not redeemable prior to maturity
Repayment at Option of Holder:
Title of Warrant Securities:
Amount of Warrant Securities:
Title of Warrant Agreement:
Warrant Agent: Not Applicable
Number of Warrants:per each $ principal amount of Warrant
Securities
Delayed Delivery --
Fee:
Minimum principal amount of each Contract:
Maximum aggregate principal amount of all Contracts:
Closing --
Office for delivery of Securities, and Warrants, if any:
Office for payment for Securities, and Warrants, if any:
Date and time of Closing:
Office for checking Securities, and Warrants, if any:
Underwriter commissions or other compensation: None
Address for notices per Section 10:
Name of Underwriter to act per Section 11:
SCHEDULE B
Underwriters Principal Amount of
Securities (with
Warrants, if any)
to be purchased
---------------
[UNDERWRITER] $[AMOUNT]
Total $[AMOUNT]
