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
made 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, except to the extent that the failure to so qualify would
not have a material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries taken as a whole; 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 adverse 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 taken
as a whole.
(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 taken as a whole; 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 taken as a whole.
(j) The Agreement has been duly authorized, executed and delivered; 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 wire or interbank transfer of
immediately available funds to an account specified by the Company (or, if so
specified in Schedule A hereto, by certified or official bank check or checks
in immediately available funds payable to the order of the Company at the
office specified in Schedule A hereto) 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 wire or interbank transfer of
immediately available funds to an account that you specify (or, if so
specified in Schedule A hereto, by certified or official bank check or checks
in New York Clearing House funds to your order at the office specified in
Schedule A hereto).
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 within a
reasonable time 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 in writing 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 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.
(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 having a maturity
of more than one year issued by the Company within the Unites States that are
denominated in the same currency as, and are otherwise substantially similar
to, the Securities (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 reasonable 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 adverse 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, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, or a downgrade in the rating
assigned to any securities of the Company, which, in any such case, is, in
your reasonable judgment, so material and adverse as to make it impracticable
or inadvisable to proceed with the completion of the sale of and payment for
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, except to the extent that the
failure to so qualify would not have a material adverse effect on the
financial condition or results of operations of the Company and its
subsidiaries taken as a whole; 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 three 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 in form and
reasonably satisfactory 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 and provided further that the
Company shall not be liable to any Underwriter under the indemnity agreement
in this subsection (a) with respect to any preliminary prospectus to the
extent that any loss, claim, damage or liability of such Underwriter results
from the fact that such Underwriter sold Securities or Warrants, if any, to a
person as to whom it is established that there was not sent or given, at or
prior to written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference) in any
case where such delivery is required by the Act if the Company notified you in
writing in accordance with Section 4(c) hereof and previously furnished copies
of the Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents incorporated
by reference) in the quantity requested in accordance with Section 4(e) hereof
to such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in the preliminary prospectus and corrected in the Prospectus or the
Prospectus as then amended or supplemented.
(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. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatening proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding
and does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of any indemnified party.
(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, and actions and inaction, 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) trading generally on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ National Market shall have been suspended or
materially limited, (ii) trading in the Company's securities on the New York
Stock Exchange has been suspended or materially limited, (iii) a banking
moratorium shall have been declared by Federal or New York authorities, or
(iv) 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 and, in the case of any such event specified in clauses (i) through
(iv) above, the effect of such event, in your reasonable judgment, makes it
impractical or inadvisable to proceed with the completion of the sale of and
payment for the Securities, and Warrants, if any, on the terms and in the
manner contemplated in the Prospectus. 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 sent by
facsimile transmission 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 sent by facsimile transmission
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.: 333-39273
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]
