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EXHIBIT 1.1
ASSOCIATES FIRST CAPITAL CORPORATION
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
___________________________________
Underwriting Agreement
(U.S. Version)
___________________________________
, 1996
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
CS First Boston Corporation
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇ Brothers Inc.
Salomon Brothers Inc
As representatives of the several Underwriters
named in Schedule I hereto
(the "Representatives")
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Associates First Capital Corporation, a Delaware corporation
(the "Company"), proposes, subject to the terms and conditions stated herein,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of ........ shares (the "Firm Shares") and, at the
election of the Underwriters, up to ......... additional shares (the "Optional
Shares") of Class A Common Stock, par value $.01 per share ("Stock"), of the
Company (the Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 3 hereof being collectively called the "Shares").
The Company is a wholly-owned subsidiary of Ford FSG, Inc., a Delaware
corporation
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("FFSG"), and FFSG is an indirect, wholly-owned subsidiary of Ford Motor
Company, a Delaware corporation ("Ford"). As used herein, "Principal
Subsidiaries" shall mean those subsidiaries of the Company named in Schedule II
hereto.
It is understood and agreed to by all parties that the Company
and Ford are concurrently entering into an agreement (the "International
Underwriting Agreement") providing for the sale by the Company of up to a total
of ........ shares of Stock (the "International Shares"), including the
overallotment option thereunder, through arrangements with certain underwriters
outside the United States (the "International Underwriters"), for whom ▇▇▇▇▇▇▇
Sachs International, CS First Boston Limited, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Limited, ▇.▇. ▇▇▇▇▇▇ Securities Ltd., Bear, ▇▇▇▇▇▇▇ International Limited,
▇▇▇▇▇▇ Brothers International (Europe) and Salomon Brothers International
Limited are acting as lead managers. Anything herein or therein to the
contrary notwithstanding, the respective closings under this Agreement and the
International Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one
relating to the Shares hereunder and the other relating to the International
Shares. The latter form of prospectus will be identical to the former except
for certain substitute pages. Except as used in Sections 3, 4, 5, 10 and 12
herein, and except as the context may otherwise require, references hereinafter
to the Shares shall include all the shares of Stock which may be sold pursuant
to either this Agreement or the International Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S. and the
international versions thereof.
1. The Company represents and warrants to, and agrees
with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No.
333-817) in respect of the Shares has been filed with the Securities
and Exchange Commission (the "Commission"); such registration
statement and any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto, to you
for each of the other Underwriters, have been declared effective by
the Commission in such form; other than the Current Reports on Form
8-K dated February 9, 1996 [and April ..... , 1996] filed by the
Company, no other document with respect to such registration statement
has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
such registration statement or filed with the
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Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"),
is hereinafter called a "Preliminary Prospectus"; the various parts of
such registration statement, including all exhibits thereto and
including the information contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 6(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the registration statement at the time it
was declared effective, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively
called the "Registration Statement"; such final prospectus, in the
form first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the "Prospectus");
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain 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, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through you expressly for use
therein;
(c) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all material
respects, to the requirements of the Act and the rules and regulations
of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain 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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through you expressly for use therein;
(d) 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, considered as a whole, and there has not been any
material adverse
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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,
considered as a whole;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries, considered as a whole;
and each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except to the extent that the failure to so qualify or
be in good standing would not have a material adverse effect on the
financial condition or results of operations of the Company and its
subsidiaries, considered as a whole;
(f) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description of the
Stock contained in the Prospectus; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable (except with
respect to 12 U.S.C. Section 55 as it applies to national banks); and
the Company owns directly or indirectly all of the outstanding shares
of capital stock of each of the Principal Subsidiaries, free and clear
of all liens, encumbrances, equities or claims;
(g) This Agreement and the International Underwriting
Agreement have each been duly authorized, executed and delivered on
behalf of the Company;
(h) The Shares to be issued and sold by the Company to
the Underwriters hereunder and under the International Underwriting
Agreement have been duly and validly authorized and, when issued and
delivered against payment therefor as
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provided herein and in the International Underwriting Agreement, will
be duly and validly issued and fully paid and non-assessable and will
conform to the description of the Stock contained in the Prospectus;
(i) The issue and sale of the Shares by the Company
hereunder and under the International Underwriting Agreement, the
compliance by the Company with all of the provisions of this Agreement
and the International Underwriting Agreement and the consummation of
the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under (in each case material to
the Company and its subsidiaries, considered as a whole), any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or any of its subsidiaries,
nor will such action result in any violation (in each case material to
the Company and its subsidiaries, considered as a whole) of any
applicable statute or any applicable order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement and the
International Underwriting Agreement, except (i) the registration
under the Act of the Shares; (ii) the registration of the Shares under
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(iii) the listing of the Shares on the New York Stock Exchange; (iv)
such consents, approvals, authorizations, registrations or
qualifications as may be required under securities, insurance
securities or Blue Sky laws of any jurisdiction in connection with the
purchase and distribution of the Shares by the Underwriters and the
International Underwriters; and (v) such consents, approvals,
authorizations, registrations, qualifications or filings as may be
required under federal or state banking, insurance or other similar
laws, all of which have been obtained with respect to this Clause (v);
(j) Neither the Company nor any of its subsidiaries is
(i) in violation of its certificate of incorporation or by-laws, (ii)
in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound or (iii) in violation of any applicable
statute or any applicable order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties, except, in the
case of Clauses (ii)
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and (iii), where such default or violation would not have a material
adverse effect on the financial condition or results of operations of
the Company and its subsidiaries, considered as a whole;
(k) The Company and its subsidiaries each owns or
possesses all governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations issued by the appropriate
state, federal or foreign regulatory agencies or bodies (including,
without limitation, any license, permit, certificate, consent, order,
approval or authorization from any banking or insurance regulatory
agency or body) (collectively, "Governmental Licenses") necessary to
carry on its business as presently conducted, with such exceptions as
do not have a material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries, considered
as a whole, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding would have a material adverse effect on the financial
condition or results of operations of the Company and its
subsidiaries, considered as a whole;
(l) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock and under the caption
"Certain United States Tax Consequences to Non-United States Holders",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate in all material respects;
(m) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
in which there is a reasonable possibility of an adverse decision
which, individually or in the aggregate, could have a material adverse
effect or prospective material adverse effect, on the financial
condition or results of operations of the Company and its subsidiaries
considered as a whole; and, to the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(n) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company"
or an entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
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(o) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes; and
(p) The financial statements, including the notes
thereto, 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 & ▇▇▇▇▇▇▇ L.L.P., who have certified certain financial
statements of the Company and its subsidiaries included in the
Registration Statement and the Prospectus, as amended or supplemented,
are, to the best knowledge of the Company, independent public
accountants with respect to the Company and its subsidiaries as
required by the Act and the rules and regulations of the Commission
thereunder.
2. Ford represents and warrants to, and agrees with, each
of the Underwriters that:
(a) Ford has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware; and FFSG has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware;
(b) All of the issued shares of capital stock of FFSG
have been duly and validly authorized and issued and are fully paid
and non-assessable; all of the issued shares of capital stock of FFSG
are owned directly or indirectly by Ford, free and clear of all liens,
encumbrances, equities or claims; and all issued shares of capital
stock of the Company are owned directly by FFSG, free and clear of all
liens, encumbrances, equities or claims;
(c) This Agreement and the International Underwriting
Agreement have each been duly authorized, executed and delivered on
behalf of Ford;
(d) The issue and sale of the Shares by the Company
hereunder and under the International Underwriting Agreement, the
compliance by the Company and Ford with all of the provisions of this
Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under (in each case
material to Ford and its subsidiaries, considered as a whole), any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which Ford or FFSG is a party
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or by which Ford or FFSG is bound or to which any of the property or
assets of Ford or FFSG is subject, nor will such action result in any
violation of the provisions of the certificate of incorporation or
by-laws of Ford or FFSG, nor will such action result in any violation
(in each case material to Ford and its subsidiaries, considered as a
whole) of any applicable statute or any applicable order, rule or
regulation of any court or governmental agency or body having
jurisdiction over Ford or FFSG or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Shares or the consummation by the
Company and Ford of the transactions contemplated by this Agreement
and the International Underwriting Agreement, except (i) the
registration under the Act of the Shares; (ii) the registration of the
Shares under the Exchange Act; (iii) the listing of the Shares on the
New York Stock Exchange; (iv) such consents, approvals,
authorizations, registrations or qualifications as may be required
under securities, insurance securities or Blue Sky laws of any
jurisdiction in connection with the purchase and distribution of the
Shares by the Underwriters and the International Underwriters; and (v)
such consents, approvals, authorizations, registrations,
qualifications or filings as may be required of Ford or FFSG under
federal or state banking, insurance or other similar laws, all of
which have been obtained with respect to this Clause (v); and
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to (i) offer, sell, contract to sell or otherwise
dispose of any securities of the Company which are substantially
similar to the Shares, including but not limited to any securities
that are convertible into or exchangeable for, or that represent the
right to receive, Stock or any such substantially similar securities
or (ii) enter into any swap, option, future, forward or other
agreement that transfers, in whole or in part, the economic
consequence of ownership of the Common Stock, without the prior
written consent of ▇▇▇▇▇▇▇, Sachs & Co.
3. Subject to the terms and conditions herein set forth,
(a) the Company agrees to issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price per share of $................., the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto and (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Shares as provided below, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at the purchase price per share set forth in Clause (a) of this Section 3, that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to
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purchase as set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the maximum number of Optional Shares
which all of the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to
purchase at their election up to ............ Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised only by written notice from you to
the Company, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 5 hereof) or, unless you and the Company otherwise agree in
writing, earlier than two or later than ten business days after the date of
such notice.
4. Upon the authorization by you of the release of the
Firm Shares and, if applicable, the Optional Shares, the several Underwriters
propose to offer the Firm Shares and, if applicable, the Optional Shares for
sale upon the terms and conditions set forth in the Prospectus.
5. (a) The Shares to be purchased by each Underwriter
hereunder, in temporary or definitive form, and in such authorized
denominations and registered in such names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request
upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to you, for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by certified or official bank check or checks, payable
to the order of the Company in immediately available funds. The Company will
cause the certificates representing the Shares to be made available for
checking and packaging at least twenty-four hours prior to the Time of Delivery
(as defined below) with respect thereto at the office of ▇▇▇▇▇▇▇, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Designated Office"). The time
and date of such delivery and payment shall be, with respect to the Firm
Shares, 9:30 a.m., New York City time, on ............., 1996 or such other
time and date as you and the Company may agree upon in writing, and, with
respect to the Optional Shares, 9:30 a.m., New York time, on the date specified
by you in the written notice given by you of the Underwriters' election to
purchase such Optional Shares, or such other time and date as you and the
Company may agree upon in writing. Such time and date for delivery of the Firm
Shares are herein called the "First Time of Delivery", such time and date for
delivery of the Optional Shares, if not the First Time of Delivery, are herein
called the "Second Time of Delivery", and each such time and date for delivery
are herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of
Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof,
including the cross receipt for the
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Shares and any additional documents requested by the Underwriters pursuant to
Section 8(k) hereof, will be delivered at the offices of Shearman & Sterling,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), and
the Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at .......p.m., New
York City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 5 "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or obligated by
law or executive order to close.
6. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably
approved by you and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus which shall be
reasonably disapproved by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies
thereof; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you
may reasonably request to qualify the Shares for offering and sale
under the securities laws or, to the extent applicable, the state
insurance securities laws of such states or territories of the United
States as you may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the
Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
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(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as you may
from time to time reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in connection with
the offering or sale of the Shares and if at such time either (i) any
event shall have occurred 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 any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or (ii) if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus in order to
comply with the Act, to notify you and upon your request to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time
nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of
the Act;
(d) To make generally available to security holders of
the Company as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of
the Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to (i) offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder and under the International
Underwriting Agreement, any securities of the Company which are
substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially
similar securities or (ii) enter into any swap, option, future,
forward or other agreement that transfers, in whole or in part, the
economic consequence of ownership of the Common Stock (other than
pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.;
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(f) To furnish to its stockholders as soon as practicable
after the end of each fiscal year, commencing with the fiscal year
ended December 31, 1996, an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries certified by independent
public accountants);
(g) During a period of three years from the effective
date of the Registration Statement, to furnish to you copies of all
reports or other communications (financial or other) generally
furnished to stockholders, and to deliver to you as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed; [and during a
period of one year from the effective date of the Registration
Statement, to furnish ▇▇▇▇▇▇▇, Sachs & Co. such additional information
concerning the business and financial condition of the Company as
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission),
it being understood that such information shall be subject to such
confidentiality and use restrictions as may be agreed upon from time
to time and that such information shall not require the preparation of
reports or other documents not otherwise prepared by the Company in
the normal course of its business;]
(h) To use the net proceeds received by it from the sale
of the Shares pursuant to this Agreement and the International
Underwriting Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds"; and
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "Exchange").
7. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of producing any
Agreement among Underwriters, this Agreement, the International Underwriting
Agreement, the Agreement between Syndicates, the Selling Agreement and the Blue
Sky Memorandum; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws or, to the extent
applicable, the state insurance securities laws as provided in Section 6(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in
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connection with such qualification and in connection with the Blue Sky
Memorandum; (iv) all fees and expenses in connection with listing the Shares on
the Exchange; (v) the filing fees incident to securing any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale
of the Shares; (vi) the cost of preparing stock certificates; (vii) the cost
and charges of any transfer agent or registrar; and (viii) all other reasonable
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 9
and 12 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of
the Shares by them, and any advertising expenses connected with any offers they
may make.
8. The obligations of the Underwriters hereunder, as to
the Shares to be delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company and Ford herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and Ford shall have
performed all of their obligations in all material respects hereunder
theretofore to be performed and the following additional conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 6(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters,
shall have furnished to you such opinion or opinions, dated such Time
of Delivery, with respect to the incorporation of the Company, the
validity of the Shares being delivered at such Time of Delivery, the
Registration Statement, the Prospectus, and other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them
to pass upon such matters;
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Company, shall have furnished to you their written opinion, dated such
Time of Delivery, in form and substance reasonably satisfactory to
you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing as a corporation under
the laws of the State of Delaware
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and has full corporate power and authority to conduct its
business as described in the Registration Statement and
Prospectus;
(ii) The Company has an authorized capitalization
as set forth in the Prospectus and the Shares have been duly
authorized and, upon payment and delivery in accordance with
this Agreement and with the International Underwriting
Agreement, will be validly issued, fully paid and
non-assessable;
(iii) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by the Company;
(iv) The issue and sale of the Shares at such Time
of Delivery by the Company and the compliance by the Company
with all of the provisions of this Agreement and the
International Underwriting Agreement will not breach or result
in a default under any of the agreements identified in Annex
II hereto, nor will such action violate the Restated
Certificate of Incorporation or By-laws of the Company or any
federal or New York statute or the Delaware General
Corporation Law or any rule or regulation that has been issued
pursuant to any federal or New York statute or the Delaware
General Corporation Law, except for violations of (i) federal
or state banking, insurance, consumer finance or other similar
laws and (ii) rules or regulations issued pursuant to federal
or state banking, insurance, consumer finance or other similar
laws, as to which such counsel need express no opinion;
(v) No consent, approval, authorization, order,
registration or qualification of or with any federal or New
York court or governmental agency or body or any Delaware
court or governmental agency or body acting pursuant to the
Delaware General Corporation Law is required for the issue and
sale of the Shares by the Company or the compliance by the
Company with all of the provisions of this Agreement and the
International Underwriting Agreement, except for (i) the
registration under the Act and the Exchange Act of the Shares;
(ii) the listing of the Shares on the Exchange; (iii) such
consents, approvals, authorizations, registrations or
qualifications as may be required under securities, insurance
securities or Blue Sky laws of any jurisdiction in connection
with the purchase and distribution of the Shares by the
Underwriters and the International Underwriters; and (iv) such
consents, approvals, authorizations, registrations,
qualifications or filings as may be required under federal or
state banking, insurance, consumer finance or other similar
laws, as to each of which such counsel need express no
opinion;
(vi) The statements made in the Prospectus under
the caption "Description of Capital Stock", insofar as they
purport to constitute summaries
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of the terms of the Stock (including the Shares), constitute
accurate summaries of the terms of such Stock in all material
respects;
(vii) The statements made in the Prospectus under
the caption "Certain United States Tax Consequences to
Non-United States Holders", insofar as they purport to
constitute summaries of matters of United States federal tax
law and regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein
in all material respects;
(viii) The Registration Statement has become
effective under the Act and, to such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or threatened by the Commission; and
[(ix) The Registration Statement (or, if
applicable, the Registration Statement as amended by any
post-effective amendment prior to such Time of Delivery) as of
its effective date and the Prospectus (or, if applicable, the
Prospectus as amended or supplemented prior to such Time of
Delivery) as of its date (other than the financial statements,
related schedules and other financial data contained therein
or omitted therefrom, as to which such counsel need express no
opinion) complied as to form in all material respects with the
requirements of the Act and the rules and regulations of the
Commission thereunder.]
[In passing on the form of the Registration Statement (or, if
applicable, the Registration Statement as amended by any
post-effective amendment prior to such Time of Delivery) and the
Prospectus (or, if applicable, the Prospectus as amended or
supplemented prior to such Time of Delivery), such counsel may state
that it has not independently verified the accuracy, completeness or
fairness of the statements made or included therein and takes no
responsibility therefor and that such opinion is based upon such
counsel's examination of the Registration Statement (or, if
applicable, the Registration Statement as amended by any
post-effective amendment prior to such Time of Delivery), the
Prospectus (or, if applicable, the Prospectus as amended or
supplemented prior to such Time of Delivery), its investigation made
in connection with the preparation of the Registration Statement (or,
if applicable, the Registration Statement as amended by any
post-effective amendment prior to such Time of Delivery) and the
Prospectus (or, if applicable, the Prospectus as amended or
supplemented prior to such Time of Delivery) and its participation in
conferences with certain officers and employees of the Company, with
representatives of Coopers & ▇▇▇▇▇▇▇ L.L.P., with counsel to the
Company and any others referred to in such opinion; subject to the
same qualifications, such counsel shall also state that they have
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no reason to believe that the Registration Statement (or, if
applicable, the Registration Statement as amended by any
post-effective amendment prior to such Time of Delivery) as of its
effective date contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading or
that the Prospectus (or, if applicable, the Prospectus as amended or
supplemented prior to such Time of Delivery) contains or, as of its
date, contained any untrue statement of a material fact or omits or,
as of its date, omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that in each case,
such counsel need not express a belief with respect to financial
statements, related schedules or other financial data.]
In rendering such opinion, such counsel may rely as to certain
matters of fact on certificates of officers of the Company and of
public officials and may state that they express no opinion as to the
laws of any jurisdiction other than the federal law of the United
States, the law of the State of New York and the Delaware General
Corporation Law.
(d) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq., Executive Vice
President and General Counsel of the Company, or such counsel
satisfactory to you in your reasonable judgment, shall have furnished
to you his written opinion, dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(ii) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued shares
of capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description of the Stock contained in the
Prospectus;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so
as to require such qualification, except to the extent that
the failure to so qualify or be in good standing would not
have a material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries,
considered as a whole (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel and in
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17
respect of matters of fact upon certificates of officers of the
Company, provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such opinions and certificates);
(iv) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation,
with power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification, except to the extent that the
failure to so qualify or be in good standing would not have a
material adverse effect on the financial condition or results
of operations of the Company and its subsidiaries, considered
as a whole; all of the issued shares of capital stock of each
such subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable (except with respect
to 12 U.S.C. Section 55 as it applies to national banks); and
the Company owns directly or indirectly all of the outstanding
shares of capital stock of each of the Principal Subsidiaries,
free and clear of all liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of the opinion
in this clause upon opinions of local counsel and in respect
to matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall
state that they believe that both you and they are justified
in relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and
other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject in which there is a reasonable possibility of
an adverse decision which, individually or in the aggregate,
could have a material adverse effect or prospective material
adverse effect, on the financial condition, or results of
operations of the Company and its subsidiaries, considered as
a whole; and, to such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by the Company;
(vii) The issue and sale of the Shares being
delivered at such Time of Delivery by the Company, the
compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement
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18
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under (in each case material to the Company and its
subsidiaries, considered as a whole), any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or
instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of
the Company or any of its subsidiaries, nor will such action
result in any violation (in each case material to the Company
and its subsidiaries, considered as a whole) of any applicable
statute or any applicable 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
subsidiaries or any of their properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement and the
International Underwriting Agreement, except (i) the
registration under the Act of the Shares; (ii) the
registration of the Shares under the Exchange Act; (iii) the
listing of the Shares on the Exchange; (iv) such consents,
approvals, authorizations, registrations or qualifications as
may be required under securities, insurance securities or Blue
Sky laws of any jurisdiction in connection with the purchase
and distribution of the Shares by the Underwriters and the
International Underwriters; and (v) such consents, approvals,
authorizations, registrations, qualifications or filings as
may be required under federal or state banking, insurance or
other similar laws, all of which have been obtained with
respect to this Clause (v);
(ix) Neither the Company nor any of its
subsidiaries is (i) in violation of its certificate of
incorporation or by-laws, (ii) in default in the performance
or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties
may be bound or (iii) in violation of any applicable statute
or any applicable order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties,
except, in the case of Clauses (ii) and (iii), where such
default or violation would not have a material adverse effect
on the
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financial condition or results of operations of the Company
and its subsidiaries, considered as a whole;
(x) The statements set forth in the Prospectus
under the caption "Description of Capital Stock", insofar as
they purport to constitute a summary of the terms of the Stock
are accurate in all material respects;
(xi) 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 threatened by the
Commission;
(xii) The Company is not an "investment company" or
an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act;
(xiii) The Company and its subsidiaries each owns or
possesses all Governmental Licenses necessary to carry on its
business as presently conducted, with such exceptions as do
not have a material adverse effect on the financial condition
or results of operations of the Company and its subsidiaries,
considered as a whole, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating
to revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding would have a
material adverse effect on the financial condition or results
of operations of the Company and its subsidiaries, considered
as a whole;
(xiv) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements, related schedules and other financial
data contained therein or omitted therefrom, as to which such
counsel need express no opinion), as of their respective
effective dates or issue dates, as the case may be, complied
as to form in all material respects with the requirements of
the Act and the applicable rules and regulations of the
Commission thereunder, although he does not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (x) of this Section 8(d); and
(xv) He has no reason to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of
Delivery (other than the financial statements,
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20
related schedules and other financial data contained therein
or omitted therefrom, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus or any further amendment
or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements, related
schedules and other financial data contained therein or
omitted therefrom, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of such Time
of Delivery, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements, related
schedules and other financial data contained therein or
omitted therefrom, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and he does not know of
any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described
as required.
With respect to paragraph (xv) above, such counsel may state
that such counsel's opinion and belief are based upon such counsel's
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof and such investigation as such counsel deems necessary or
appropriate.
(e) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., Secretary and Assistant
General Counsel of Ford, or such counsel satisfactory to you in your
reasonable judgment, shall have furnished to you his written opinion,
dated such Time of Delivery, in form and substance satisfactory to
you, to the effect that:
(i) Ford has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware;
(ii) FFSG has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware; all of the issued shares of
capital stock of FFSG have been duly and validly authorized
and issued and are fully paid and non-assessable; all of the
issued
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shares of capital stock of FFSG are owned directly or
indirectly by Ford, free and clear of all liens, encumbrances,
equities or claims; and all issued shares of capital stock of
the Company are owned directly by FFSG, free and clear of all
liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect to matters of fact
upon certificates of officers of Ford or FFSG, provided that
such counsel shall state that they believe that both you and
they are justified in relying upon such opinions and
certificates);
(iii) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by Ford;
(iv) The issue and sale of the Shares being
delivered at such Time of Delivery by the Company, the
compliance by the Company and Ford with all of the provisions
of this Agreement and the International Underwriting Agreement
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under (in each case material to Ford and its
subsidiaries, considered as a whole), any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or
instrument known to such counsel to which Ford or FFSG is a
party or by which Ford or FFSG is bound or to which any of the
property or assets of Ford or FFSG is subject, nor will such
action result in any violation of the provisions of the
certificate of incorporation or by-laws of Ford or FFSG, nor
will such action result in any violation (in each case
material to Ford and its subsidiaries, considered as a whole)
of any applicable statute or any applicable order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over Ford or FFSG or any of
their properties; and
(v) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required of Ford or FFSG or the
issue and sale of the Shares or the consummation by the
Company and Ford of the transactions contemplated by this
Agreement and the International Underwriting Agreement, except
(i) the registration under the Act of the Shares; (ii) the
registration of the Shares under the Exchange Act; (iii) the
listing of the Shares on the Exchange; (iv) such consents,
approvals, authorizations, registrations or qualifications as
may be required under securities, insurance securities or Blue
Sky laws of any jurisdiction in connection with the purchase
and distribution of the Shares by the Underwriters and the
International Underwriters; and (v) such consents, approvals,
authorizations, registrations, qualifications or filings as
may be
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required of Ford or FFSG under federal or state banking,
insurance or other similar laws, all of which have been
obtained with respect to this Clause (v).
In rendering such opinion, such counsel may state that he
expresses no opinion as to the laws of any jurisdiction outside
the United States.
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 10:00 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, Coopers & ▇▇▇▇▇▇▇ L.L.P. shall have furnished
to you a letter or letters, dated the respective date of delivery
thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto;
(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, considered 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, net worth or results of operations of
the Company and its subsidiaries, considered as a whole the effect of
which, in any such case, is in the reasonable judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in
the manner contemplated in the Prospectus;
(h) On or after the date hereof there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities
involving the United States which have resulted in the declaration by
the United States of a national emergency or war, if the effect of any
such event specified in Clauses (i) through (iv), in the reasonable
judgment of the Representatives, makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
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(i) The Shares to be sold by the Company at such Time of
Delivery shall have been duly listed, subject to notice of issuance,
on the Exchange; and
(j) The Company shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of
the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (g) of
this Section and as to such other matters as you may reasonably
request.
9. (a) The Company and Ford, jointly and severally,
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 Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, 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 for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company and Ford 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 in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through you expressly
for use therein 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 such loss, claim,
damage or liability of such Underwriter results from the fact that such
Underwriter sold Shares to a person as to whom it shall be established that
there was not sent or given, at or prior to written confirmation of such sale,
a copy of the Prospectus or of the Prospectus as then amended or supplemented
in any case where such delivery is required by the Act if the Company
previously furnished copies thereof in the quantity requested in accordance
with Section 5(c) 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 and Ford against any losses, claims, damages or liabilities to which
the Company or Ford may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or
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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 Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, 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 in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use therein; and will reimburse the Company and Ford for any legal fees or
other expenses reasonably incurred by the Company or Ford in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(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 therein 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 expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. If the
indemnifying party does not assume the defense of such action, it is understood
that the indemnifying party shall not, in connection with any one such action
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(in addition to one separate firm of local attorneys in each such jurisdiction)
at any time for all such indemnified parties, which firms shall be designated
in writing by you, if the indemnified parties under this Section consist of any
Underwriter or any of their respective controlling persons, or by the Company
or Ford, if the indemnified parties under this Section consist of the Company
or Ford or any of the Company's or Ford's directors, officers or controlling
persons. The indemnifying party shall not be liable for any settlement of an
action or claim for monetary damages which an indemnified party may effect
without the consent of the indemnifying party, which consent shall not be
unreasonably withheld.
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25
(d) If the indemnification provided for in this Section 9
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and Ford on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and Ford 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 (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and Ford 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 Shares purchased under this Agreement (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares purchased
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined (i) 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 Ford on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission
and (ii) with respect to any Underwriter, by reference to the extent (if any)
to which such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to any Preliminary Prospectus result from the fact that
such Underwriter sold Shares to a person as to whom it shall be established
that there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus or of the Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if the
Company previously furnished copies thereof in the quantity requested in
accordance with Section 5(c) hereof to such Underwriter and the loss, claim,
damage or liability or 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.
The Company, Ford and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were 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 above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal
26
26
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. 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 Shares 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 are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and Ford under this
Section 9 shall be in addition to any liability which the Company and Ford 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; and
the obligations of the Underwriters under this Section 9 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 officer and director of the
Company (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and of
Ford and to each person, if any, who controls the Company or Ford within the
meaning of the Act.
10. (a) If any Underwriter shall default in its
obligation to purchase the Shares which it has agreed to purchase hereunder at
a Time of Delivery, you may in your discretion arrange for you or another party
or other parties to purchase such Shares on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Shares, then the Company shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In
the event that, within the respective prescribed periods, you notify the
Company that you have so arranged for the purchase of such Shares, or the
Company notifies you that it has so arranged for the purchase of such Shares,
you or the Company shall have the right to postpone such Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, or
in any other documents or arrangements, and the Company agrees to file promptly
any amendments to the Registration Statement or the Prospectus which in the
opinion of Shearman & Sterling, counsel for the Underwriters, and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Company, may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
27
27
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number
of all the Shares to be purchased at such Time of Delivery, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or
Underwriters, then this Agreement (or, with respect to the Second Time of
Delivery, the obligations of the Underwriters to purchase and of the Company to
sell the Optional Shares) may thereupon be terminated either by the Company
or, through you, by such Underwriters as have agreed to purchase in the
aggregate 50% or more of the aggregate number of remaining Shares to be
purchased at such Time of Delivery (provided, however, that nothing herein
contained shall obligate any Underwriter to purchase additional Shares at such
Time of Delivery in excess of the amount required to be purchased by such
Underwriter pursuant to Section 10(b) hereof) without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 7 hereof and
the indemnity and contribution agreements in Section 9 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements,
representations, warranties and other statements of the Company, Ford and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company or Ford, or any officer or director or
controlling person of the Company or Ford, and shall survive delivery of and
payment for the Shares.
12. If this Agreement shall be terminated pursuant to
Section 10 hereof or as a result of the failure of any condition set forth in
Section 8(h) hereof, the Company and Ford shall not then be under any liability
to any Underwriter, except as provided in Sections 7 and 9 hereof; but, if for
any other reason, any Shares are not delivered by or on
28
28
behalf of the Company as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses, including reasonable
fees and disbursements of counsel, as approved in writing by you, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company and Ford shall then be
under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you jointly or by ▇▇▇▇▇▇▇, Sachs & Co. on behalf
of you as the representatives.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail or facsimile transmission to you as the representatives in care of
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Facsimile No.:
(212) 902-_______, Attention: Registration Department; if to the Company shall
be delivered or sent by mail or facsimile transmission to the Company at ▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: General Counsel; and if to Ford shall be delivered or sent by or
facsimile transmission to Ford at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered
or sent by mail or facsimile transmission directly to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company or Ford by
you upon request. Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof.
14. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company, Ford and, to the
extent provided in Sections 9 and 11 hereof, the officers and directors of the
Company and Ford and any person who controls the Company, Ford or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Time shall be of the essence of this Agreement. As
used herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
16. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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29
17. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us .... counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and Ford. It is understood that
30
30
your acceptance of this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in a form of Agreement among Underwriters
(U.S. Version), the form of which shall be submitted to the Company and Ford
for examination upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
ASSOCIATES FIRST CAPITAL
CORPORATION
By:
------------------------------
Name:
Title:
FORD MOTOR COMPANY
By:
------------------------------
Name:
Title:
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
CS First Boston Corporation
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇ Brothers Inc.
Salomon Brothers Inc
By:
--------------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
On behalf of each of the Underwriters
31
SCHEDULE I
TOTAL NUMBER NUMBER OF OPTIONAL
OF FIRM SHARES TO BE
SHARES PURCHASED IF
TO BE MAXIMUM OPTION
UNDERWRITER PURCHASED EXERCISED
----------- --------- ---------
▇▇▇▇▇▇▇, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . .
CS First Boston Corporation . . . . . . . . . . . . . . . . . . .
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated . . . . . . . .
▇.▇. ▇▇▇▇▇▇ Securities Inc. . . . . . . . . . . . . . . . . . . .
Bear, ▇▇▇▇▇▇▇ & Co. Inc. . . . . . . . . . . . . . . . . . . . .
▇▇▇▇▇▇ Brothers Inc. . . . . . . . . . . . . . . . . . . . . . .
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . .
[NAMES OF OTHER UNDERWRITERS] . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . .
-------------- -------------
============== =============
32
SCHEDULE II
LIST OF PRINCIPAL SUBSIDIARIES
33
ANNEX I
Pursuant to Section 8(f) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined
by them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished separately to the
representatives of the Underwriters (the "Representatives");
(iii) if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus as indicated in their reports
thereon copies of which have been separately furnished to the
Representatives and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
published rules and regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company as of December 31, 1995 and 1994 and for the
three years in the period ended December 31, 1995 included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements for
1995, 1994 and 1993;
34
▇▇▇. I - 2
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301 and 402 of Regulation S-K;
(vi) On the basis of limited procedures, not constituting
an examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(A) (i) the unaudited consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) the unaudited financial statements which were
not included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited consolidated financial statements
included in the Prospectus;
(D) if applicable, any unaudited pro forma
consolidated condensed financial statements included in the
Prospectus do not comply as to form in all
35
▇▇▇. I - 3
material respects with the applicable accounting requirements
of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five
days prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest financial
statements included in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (D) there were any
decreases in consolidated net revenues or consolidated net
income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Representatives, except in each case
for decreases or increases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus,
or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
36
ANNEX II
LIST OF MATERIAL AGREEMENTS
1. Indenture, dated as of June 15, 1995, between the Company and
First Interstate Bank of Texas, N.A.
2. Indenture, dated as of October 1, 1982, between the Company
and Continental Illinois Bank and Trust Company of Chicago;
First Supplemental Indenture, dated as of September 15, 1983,
between the Company and Continental Illinois Bank and Trust
Company of Chicago; Second Supplemental Indenture, dated as of
March 1, 1987, between the Company and Continental Illinois
Bank and Trust Company of Chicago.
3. Indenture, dated as of October 15, 1994, between Associates
Corporation of North America ("ACONA") and NationsBank of
Texas, N.A.
4. Indenture, dated as of October 15, 1994, between ACONA and
Citibank, N.A.
5. Indenture, dated as of July 15, 1993, between ACONA and First
Fidelity Bank, N.A., New Jersey.
6. Indenture, dated as of October 15, 1992, between ACONA and The
First National Bank of Chicago.
7. Indenture, dated as of October 15, 1992, between ACONA and
State Street Bank and Trust Co. (as successor to First
National Bank of Boston).
8. Indenture, dated as of December 1, 1985, between ACONA and The
Chase Manhattan Bank, N.A.
9. Indenture, dated as of November 1, 1995, between ACONA and The
Chase Manhattan Bank, N.A.
10. Indenture, dated as of December 1, 1985, between ACONA and
Bankers Trust Company; First Supplemental Indenture, dated as
of June 15, 1989, between ACONA and Bankers Trust Company.
11. Indenture, dated as of June 15, 1981, between ACONA and ▇▇▇▇▇▇
Trust and Savings Bank.
12. Indenture, dated as of September 15, 1987, between ACONA and
Chemical Bank (as successor to Manufacturers Hanover Trust
Company); First Supplemental Indenture, dated June 15, 1989,
between ACONA and Chemical
37
▇▇▇. II - 2
Bank (as successor to Manufacturers Hanover Trust Company);
Second Supplemental Indenture, dated August 15, 1991, between
ACONA and Chemical Bank (as successor to Manufacturers Hanover
Trust Company).
13. Indenture, dated as of July 15, 1989, between ACONA and
Chemical Bank; First Supplemental Indenture, dated August 15,
1991, between ACONA and Chemical Bank.
14. Corporate Agreement, dated ________, 1996, between the Company
and Ford Motor Company.