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EXHIBIT 1
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
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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). The independent accountants of the Company who have 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
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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,
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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
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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.
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(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
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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 United 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 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
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.
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(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
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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
dated the Closing Date from the independent accountants of the Company
who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement,
10
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, in form and
substance satisfactory to the Representatives and as to such other
matters as the Representatives may reasonably request.
(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 substance
reasonably satisfactory 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
11
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.
12
(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
13
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
14
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:
15
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
16
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
-------------------------
Title:
17
SCHEDULE A
Underwriting Agreement dated: [DATE]
Registration Statement No.: [NUMBER]
Representatives: [UNDERWRITER]
Title of Securities: [SECURITIES]
Indenture: [INDENTURE]
Amount of Securities: [AMOUNT]
Price to Public:
Purchase Price:
Final Maturity: [MATURITY]
Interest Rate: [INTEREST RATE]
Redemption:
Repayment at Option of Holder:
Title of Warrant Securities:
Amount of Warrant Securities:
Title of Warrant Agreement:
Warrant Agent:
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:
Address for notices per Section 10:
Name of Underwriter to act per Section 11:
18
SCHEDULE B
Principal Amount of Securities
(with Warrants, if any)
UNDERWRITERS to be purchased
-----------------------------
[UNDERWRITER] $[AMOUNT]
Total $[AMOUNT]
