<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) - June 29, 1994
ARISTAR, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-3521 95-4128205
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
8900 GRAND OAK CIRCLE, TAMPA, FLORIDA 33637-1050
(Address of principal executive offices)
Registrant's telephone number, including area code -
(813) 632-4500
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ITEM 7. EXHIBITS.
(c) Exhibits
1(a) - Terms Agreement dated June 29, 1994 among
Aristar, Inc. and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
Goldman, Sachs & Co., and Lehman Brothers Inc.
and the Aristar, Inc. - Debt Securities -
Underwriting Agreement Basic Provisions dated
June 24, 1992 incorporated by reference therein.
4(a) - Resolutions adopted by the Pricing Committee of
the Board of Directors of the Company
establishing the terms of the Company's 7 3/4%
Senior Notes due June 15, 2001.
4(b) - Specimen Global 7 3/4% Senior Note due June 15,
2001.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
ARISTAR, INC.
By: /s/ James A. Bare
--------------------------------
James A. Bare
Senior Vice President and Chief
Financial Officer (Chief Accounting
Officer)
Date: July 7, 1994
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EXHIBIT INDEX
EXHIBITS PAGE
- - -------- ----
1(a) - Terms Agreement dated June 29, 1994 among
Aristar, Inc. and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
Goldman, Sachs & Co. and Lehman Brothers
Inc. and the Aristar, Inc. - Debt Securities -
Underwriting Agreement Basic Provisions dated June
24, 1992 incorporated by reference therein.
4(a) - Resolutions adopted by the Pricing Committee of
the Board of Directors of the Company establishing
the terms of the Company's 7 3/4% Senior Notes due
June 15, 2001.
4(b) - Specimen Global 7 3/4% Senior Note due June 15, 2001.
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EXHIBIT 1(a)
TERMS AGREEMENT
June 29, 1994
ARISTAR, INC.
9200 Oakdale Avenue
Chatsworth, California 91311
Dear Sirs:
We (the "Underwriters" and the "Representatives") understand
that Aristar, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell $150,000,000 aggregate principal amount of its 7 3/4% Senior Notes due
June 15, 2001 (the "Underwritten Securities"). Subject to the terms and
conditions set forth herein or incorporated by reference herein, the
Underwriters hereby offer to purchase, severally and not jointly, the principal
amount of Underwritten Securities set forth opposite their respective names
below at 99.383% of the principal amount thereof, together with accrued
interest thereon, if any, from July 7, 1994 to (but not including) the Delivery
Date.
<TABLE>
<CAPTION>
Principal
Underwriter Amount
----------- ---------
<S> <C>
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated. . . . . . . . . . . . . . . . $50,000,000
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . 50,000,000
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . 50,000,000
------------
Total . . . . . . . . . . . . . . . . . $150,000,000
===========
</TABLE>
The Underwritten Securities shall have the following terms:
<TABLE>
<S> <C>
Date of maturity: June 15, 2001
Interest rate: 7 3/4% per annum, payable semiannually
Initial public
offering price: 99.933%, plus accrued interest, if any, from July 7, 1994 to
(but not including) the Delivery Date
Interest payment
dates: June 15 and December 15, commencing December 15, 1994
Redemption provisions: The Underwritten Securities are not redeemable
</TABLE>
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<TABLE>
<S> <C>
Form: The Underwritten Securities are to be issued in the
form of one or more global securities registered in
the name of The Depository Trust Company or its nominee
(the "Depositary"); delivery of the Underwritten Securities
at closing will be made through the facilities of the Depositary
Specified funds for
payment of purchase
price: Wire transfer of immediately available funds
Specified address for
notices: Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Delivery Date: 10:00 A.M., New York City time, on July 7, 1994
Place of closing: Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
</TABLE>
The Underwriters hereby confirm that they have furnished to
the Company in writing the following information for inclusion in the Company's
Prospectus Supplement dated June 29, 1994 to the Company's Prospectus dated
June 29, 1994 relating to the Underwritten Securities (the "Prospectus
Supplement"): (i) the last paragraph at the bottom of the cover page of the
Prospectus Supplement concerning the terms of the offering by the Underwriters;
(ii) the first paragraph on page S-2 of the Prospectus Supplement concerning
over-allotment and stabilization by the Underwriters; (iii) the first paragraph
below the table on page S-6 of the Prospectus Supplement concerning the public
offering price, concession and discount; and (iv) the second sentence of the
second paragraph below the table on page S-6 of the Prospectus Supplement
concerning market-making by the Underwriters.
All of the provisions contained in the document entitled
"Aristar, Inc. -- Debt Securities -- Underwriting Agreement Basic Provisions"
and dated June 24, 1992, a copy of which you have previously furnished to us,
are herein incorporated by reference in their entirety and shall be deemed to
be a part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein; provided, however, that: (i) only one letter of
the type described in paragraph 9(g) of such provisions shall be delivered to
the Underwriters and such letter shall be delivered on the Delivery Date; (ii)
paragraph 1(l) of such provisions shall be replaced in its entirety by the
following: "All of the authorized, issued and outstanding capital stock of the
Company has been duly authorized and validly issued and is fully paid and
non-assessable and is owned, directly or indirectly, by Great
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3
Western Financial Corporation ("Great Western"); and (iii) the reference in
paragraph 9(b)(v) of such provisions to "Great Western Bank" shall be deemed to
refer to "Great Western." Terms defined in such Underwriting Agreement Basic
Provisions are used herein as therein defined.
Please accept this offer no later than 4:00 P.M., New York
City time, on June 29, 1994 by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us, or by sending us a
written acceptance in the following form:
"We hereby accept your offer, set forth in the Terms Agreement
dated June 29, 1994, to purchase the Underwritten Securities on the
terms set forth therein."
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Frank V. McMahon
--------------------------------
Frank V. McMahon,
Director
Accepted:
ARISTAR, INC.
By /s/ James A. Bare
-------------------------------
James A. Bare,
Senior Vice President
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ARISTAR, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
June 24, 1992
The basic provisions set forth herein are intended to be
incorporated by reference in a terms agreement (a "Terms Agreement") of the
type referred to in Paragraph 2 hereof. With respect to any particular Terms
Agreement, the Terms Agreement, together with the provisions hereof
incorporated therein by reference, is herein referred to as this "Agreement".
Terms defined in the Terms Agreement are used herein as therein defined.
The Company may issue and sell from time to time series of its
debt securities registered under the registration statement referred to in
Paragraph 1(a) hereof (the "Securities"). The Securities may have varying
designations, denominations, interest rates and payment dates, maturities,
redemption provisions and selling prices, with all such terms for any
particular series of Securities (together with any other terms relating to such
series) to be determined and set forth in the Terms Agreement relating to the
series.
1. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 33-46439)
with respect to the Securities has been prepared and filed by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has become
effective. The Indenture pursuant to which the Underwritten Securities will be
issued (the "Indenture") has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). As used in this Agreement, (i)
"Preliminary Prospectus" means each prospectus (including all documents
incorporated therein by reference) included in such registration statement, and
amendments or supplements thereof, before it became effective under the Act,
including any prospectus filed
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with the Commission pursuant to Rule 424(a) of the Rules and Regulations; (ii)
"Registration Statement" means such registration statement when it became
effective under the Act, and as from time to time amended or supplemented
thereafter at the time of effectiveness of such amendment or filing of such
supplement with the Commission (including all documents incorporated therein
by reference); (iii) "Basic Prospectus" means the prospectus (including all
documents incorporated therein by reference) included in the Registration
Statement; and (iv) "Prospectus" means the Basic Prospectus, together with any
amendments or supplements (including in each case all documents incorporated
therein by reference), as filed with, or transmitted by a means reasonably
calculated to result in filing with, the Commission pursuant to paragraph (b)
of Rule 424 of the Rules and Regulations. The Commission has not issued any
order preventing or suspending the use of the Prospectus.
(b) The Registration Statement did, as of the time it became
effective, and will, as of each filing of the Company's most recent annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the Prospectus did, as of its issue
date, comply as to form in all material respects with the Act, the Exchange
Act, the Trust Indenture Act, and the rules and regulations of the Commission
under such Acts; the Indenture, including any amendments and supplements
thereto, conforms, and will conform, in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations of the
Commission thereunder; the Registration Statement did not, as of the time it
became effective, and will not, as of each filing of the Company's most recent
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act, 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; and the Prospectus does not and will not as of the Delivery Date
(as hereinafter defined) contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, or to any statements in or
omissions from the statement of eligibility and qualification on Form T-l of
the Trustee under the Trust Indenture Act.
(c) Neither the Company nor any of its majority-owned
subsidiaries (as defined in Rule 405 of the Rules and Regulations, and
hereinafter called "Subsidiaries") is in violation of its corporate charter or
by-laws or in default in
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the observance or performance of any agreement, indenture or instrument, the
effect of which violation or default would be material to the Company and its
Subsidiaries taken as a whole; the execution, delivery and performance of this
Agreement and the Indenture and compliance by the Company with the provisions
of the Underwritten Securities and the Indenture have been duly authorized by
all necessary corporate action and will not conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of its Subsidiaries pursuant to the terms of, or
constitute a default in the observance or performance of, any agreement,
indenture or instrument, or result in a violation of the corporate charter or
by-laws of the Company or any of its Subsidiaries or any order, statute, rule
or regulation of any court or governmental agency having jurisdiction over the
Company, any of its Subsidiaries or their respective properties, the effect of
which conflict, lien, charge, encumbrance, default or violation would be
material to the Company and its Subsidiaries taken as a whole; and except as
required by the Act, the Trust Indenture Act, the Exchange Act and applicable
state securities laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement or the Indenture.
(d) From the dates as of which information is given in the
Registration Statement and the Prospectus, and except as described therein, (i)
there has not been any material adverse change in the financial condition or
results of operations of the Company and its Subsidiaries taken as a whole and
(ii) there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock. There is no financial
support agreement between the Company and Great Western Financial Corporation
or any affiliate thereof ("Great Western") respecting the business relationship
between the two parties.
(e) To the best knowledge of the Company, Price Waterhouse,
whose report appears in the Company's Annual Report on Form 10-K incorporated
by reference in the Prospectus, are independent public accountants as required
by the Act and the Rules and Regulations.
(f) (i) As of the Delivery Date, the Indenture will have been
duly executed and delivered and validly authorized by the Company and will
constitute the legally binding obligation of the Company enforceable in
accordance with its terms (except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting creditors' rights
generally or by general equity principles), (ii) the Underwritten Securities
have been validly authorized for issuance and sale pursuant to this Agreement
and, upon execution, authentication,
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delivery and payment therefor as provided in this Agreement and the Indenture,
will be validly issued and outstanding, and will constitute legally binding
obligations of the Company enforceable in accordance with their terms (except
as enforcement of the Underwritten Securities may be limited by bankruptcy,
insolvency or other laws relating to or affecting creditors' rights generally
or by general equity principles) and entitled to the benefits of the Indenture,
and (iii) the Underwritten Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Prospectus.
(g) The Company has been duly incorporated, is validly
existing and is in good standing under the laws of its jurisdiction of
incorporation; each of the Subsidiaries has been duly incorporated, is validly
existing and is in good standing under the laws of their respective
jurisdictions of incorporation (except where the failure to be so incorporated
or to be in good standing would not have a material adverse effect on the
Company and its Subsidiaries taken as a whole); to the best knowledge of the
Company, the Company and each of its Subsidiaries are duly qualified to do
business and in good standing as foreign corporations in each jurisdiction in
which their respective ownership or leasing of property or the conduct of their
respective businesses requires such qualification, and have the corporate power
and authority necessary to own, lease and operate their respective properties
and to conduct the businesses in which they are engaged, except where the
failure to so qualify or to have such power and authority would not have a
material adverse effect on the Company and its Subsidiaries taken as a whole;
and the capital stock of each Subsidiary is owned by the Company, directly or
through Subsidiaries, free and clear of any mortgage, pledge, lien, claim or
encumbrance.
(h) Except as described in the Prospectus, there is no
material litigation or governmental proceeding pending or, to the knowledge of
the Company, threatened against the Company or any of its Subsidiaries which
would result in any material adverse change in the financial condition or
results of operations of the Company and its Subsidiaries taken as a whole or
which is required to be disclosed in the Registration Statement.
(i) The financial statements filed as part of the
Registration Statement or included or incorporated in any Preliminary
Prospectus or the Prospectus present, and will present as of the Delivery Date,
fairly the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved; and the
supporting schedules included or incorporated in the Registration Statement
present fairly the information required to be stated therein.
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(j) The documents incorporated by reference into any
Preliminary Prospectus or the Prospectus have been, and any documents
subsequently incorporated by reference will be, as of the applicable filing
date, prepared by the Company in conformity with the applicable requirements of
the Act and the Rules and Regulations and the Exchange Act and the rules and
regulations of the Commission thereunder; and such documents have been or will
be as of the Delivery Date timely filed as required thereby.
(k) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the Act or by
the Rules and Regulations, or which were required to be filed as exhibits to
any document incorporated by reference in the Prospectus by the Exchange Act or
the rules and regulations of the Commission thereunder, which have not been
filed as exhibits to the Registration Statement or to such documents, or
incorporated therein by reference as permitted by the Rules and Regulations or
the rules and regulations of the Commission under the Exchange Act, as the case
may be.
(l) All of the authorized, issued and outstanding capital
stock of the Company has been duly authorized and validly issued and is fully
paid and non-assessable and is owned, directly or indirectly, by Great Western
Bank, a Federal Savings Bank ("Great Western Bank").
(m) The Company and each of its Subsidiaries have all
licenses, approvals and consents for the conduct of their respective
businesses, the failure of which to have would have a material adverse effect
on the business of the Company and the Subsidiaries taken as a whole.
2. The obligation of the Underwriters to purchase, and the
Company to sell, the Underwritten Securities is evidenced by a Terms Agreement
delivered at the time the Company determines to sell the Underwritten
Securities. The Terms Agreement specifies the firm or firms which will be
Underwriters, the principal amount of the Underwritten Securities to be
purchased by each Underwriter, the purchase price to be paid by the
Underwriters for the Underwritten Securities, the public offering price, if
any, of the Underwritten Securities, certain terms thereof and the
Underwriters' compensation therefor, any of the terms of the Underwritten
Securities not already specified in the Indenture (including, but not limited
to, designations, denominations, interest rate or rates (and method of
calculation thereof) and payment dates, maturity, redemption provisions and
sinking fund requirements) and the written information that has been furnished
to the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion in the Registration Statement or the Prospectus.
The Terms Agreement also specifies
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any details of the terms of the offering which should be reflected in a
post-effective amendment to the Registration Statement or the supplement to the
Prospectus relating to the offering of the Underwritten Securities.
3. The Company shall not be obligated to deliver any
Underwritten Securities except upon payment for all the Underwritten Securities
to be purchased pursuant to this Agreement as hereinafter provided.
4. If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non- defaulting Underwriters
shall be obligated to purchase the Underwritten Securities which the defaulting
Underwriter agreed but failed to purchase in the respective proportions which
the principal amount of Underwritten Securities set forth in the Terms
Agreement to be purchased by each remaining non-defaulting Underwriter set
forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining
non-defaulting Underwriters; PROVIDED, HOWEVER, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any Underwritten
Securities if the aggregate principal amount of Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase
exceeds 9.09% of the total principal amount of Underwritten Securities, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of Underwritten Securities set forth in the
Terms Agreement to be purchased by it. If the foregoing maximums are exceeded,
the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representatives who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Underwritten Securities. If the remaining Underwriters or
other underwriters satisfactory to the Representatives do not elect to purchase
the Underwritten Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter or the Company, except that the
Company will continue to be liable for the payment of expenses as set forth in
Paragraphs 6(k) and 10 hereof.
Nothing contained in this Paragraph shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Underwritten Securities of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
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5. Delivery of and payment for the Underwritten Securities
shall be made at the office of the Representatives at such address and time as
may be specified in the Terms Agreement. This date and time are sometimes
referred to as the "Delivery Date". On the Delivery Date the Company shall
deliver the Underwritten Securities to the Representatives for the account of
each Underwriter against payment to or upon the order of the Company of the
purchase price by (i) certified or official bank check or checks payable in New
York Clearing House funds or (ii) wire transfer of immediately available funds,
as shall be specified in the Terms Agreement. Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Underwritten Securities shall be in definitive fully registered
form and in such denominations and registered in such names as the
Representatives shall request in writing not less than two full business days
prior to the Delivery Date. For the purpose of expediting the checking and
packaging of the Underwritten Securities, the Company shall make the
Underwritten Securities available for inspection by the Representatives in New
York, New York (or such other place as may be specified by the Representatives)
not later than 2:00 P.M., New York City time, at least two business days prior
to the Delivery Date.
6. The Company covenants and agrees with the Representatives
as follows:
(a) To furnish promptly to the Representatives and to their
counsel a signed copy of the Registration Statement as originally filed and
each amendment thereto, and a copy of each Prospectus filed with the
Commission, including all supplements thereto and all documents incorporated
therein by reference and all consents and exhibits filed therewith;
(b) To deliver promptly to the Representatives such number of
the following documents as they may reasonably request: (i) conformed copies
of the Registration Statement (excluding exhibits other than the computation of
the ratio of earnings to fixed charges, the Indenture and this Agreement), (ii)
each Preliminary Prospectus, the Basic Prospectus and the Prospectus and any
supplement thereto and (iii) any documents incorporated by reference in the
Prospectus;
(c) If, during any period in which, in the opinion of counsel
for the Representatives, a prospectus relating to the Underwritten Securities
is required to be delivered under the Act, any event occurs as a result of
which the Prospectus would include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the
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Prospectus to comply with the Act, to immediately notify the Representatives
and to promptly prepare and file (subject to (e) below) with the Commission an
amendment or supplement which will effect such compliance (PROVIDED, HOWEVER,
that if such amendment or supplement of the Prospectus shall be filed after the
nine-month period commencing on the date hereof, the Representatives shall pay
the costs incurred in connection with the preparation of such amendment or
supplement);
(d) To timely file (subject to (e) below) with the Commission
during any period in which, in the opinion of counsel for the Representatives,
any Prospectus is required by law to be delivered in connection with sales of
the Underwritten Securities, all documents (and any amendments to previously
filed documents) required to be filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act;
(e) Prior to filing with the Commission any (i) amendment or
supplement to the Registration Statement, (ii) Prospectus or any amendment or
supplement thereto or (iii) document incorporated by reference in any of the
foregoing or any amendment of or supplement to any such incorporated document,
to furnish a copy thereof to the Representatives and their counsel and to
provide the Representatives an opportunity to comment thereon;
(f) To advise the Representatives immediately (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Underwritten Securities becomes effective, (ii) of any request or proposed
request by the Commission for an amendment or supplement to the Registration
Statement, to the Prospectus, to any document incorporated by reference in any
of the foregoing or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to the Prospectus or any document
incorporated therein by reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy of any document
incorporated by reference in the Prospectus, (iv) of receipt by the Company of
any notification with respect to the suspension of the qualification of the
Underwritten Securities for sale in any jurisdiction or the initiation or
threat of any proceeding for that purpose and (v) of the happening of any event
which makes untrue any statement of a material fact made in the Registration
Statement or the Prospectus or which requires the making of a change in the
Registration Statement or the Prospectus in order to make any statement of a
material fact therein not misleading;
(g) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to
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<PAGE> 12
make every reasonable effort to obtain the lifting of that order at the
earliest possible time;
(h) To make generally available to its security holders and
to deliver to the Representatives, in each case as soon as practicable, an
earnings statement (in form complying with the provisions of Section 11(a) of
the Act and Rule 158 thereunder and which need not be certified by independent
certified public accountants unless required by the Act or the Rules and
Regulations) covering the period beginning not later than the first day of the
fiscal quarter next following each date which (i) under Section 11(a) of the
Act and the Rules and Regulations is an "effective date" (as defined in Rule
158) of the Registration Statement for purposes of said Section 11(a), and (ii)
is not later than the Delivery Date;
(i) For one year after the Delivery Date, to furnish to the
Representatives, promptly after the time the Company makes the same available
to others, copies of all public reports or releases and all reports and
financial statements furnished by the Company to any securities exchange
pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(j) To endeavor, in cooperation with the Representatives, to
qualify the Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Representatives may reasonably designate, and to maintain such
qualifications in effect for as long as may be reasonably required for the
distribution of the Underwritten Securities. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Underwritten Securities have been qualified as above provided;
(k) To pay (i) the costs incident to the authorization,
issuance, sale and delivery of the Underwritten Securities and any taxes
payable in that connection, (ii) the costs incident to the preparation,
printing and filing under the Act of the Registration Statement and any
amendments, supplements and exhibits thereto, (iii) the costs incident to the
preparation, printing and filing of any document and any amendments and
exhibits thereto required to be filed by the Company under the Exchange Act,
(iv) the costs of distributing the Registration Statement, as originally filed,
and each amendment and post-effective amendment thereof (including exhibits),
any Preliminary Prospectus, the Basic Prospectus, the Prospectus, any
supplement or amendment to the Prospectus and any documents incorporated by
reference in any of the foregoing documents, (v) the costs of distributing the
terms of the agreement relating to the organization of the underwriting
syndicate to the Underwriters by
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mail, telex or other means of communication, (vi) the costs of typing this
Agreement, (vii) the costs and fees in connection with the listing of the
Securities on any securities exchange, (viii) the costs of any filings with the
National Association of Securities Dealers, Inc., (ix) the fees and
disbursements of counsel to the Company, (x) the fees paid to rating agencies
in connection with the rating of the Securities, including the Underwritten
Securities, (xi) the fees and expenses of qualifying the Securities, including
the Underwritten Securities, under the securities laws of the several
jurisdictions as provided in this Paragraph, and of preparing and printing a
Blue Sky Memorandum and a memorandum concerning the legality of the Securities,
including the Underwritten Securities, as an investment (including fees and
expenses of counsel to the Representatives in connection therewith), and (xii)
all other costs and expenses incident to the performance of the Company's
obligations under this Agreement; PROVIDED, THAT, except as provided in this
Paragraph and in Paragraph 10 hereof, the Underwriters shall pay their own
costs and expenses, including the fees and expenses of their counsel, any
transfer taxes on the Underwritten Securities which they may sell and the
expenses of advertising any offering of the Underwritten Securities made by the
Underwriters; and
(l) During the period beginning on the date of the Terms
Agreement and continuing to the Delivery Date, without the prior consent of the
Representatives, not to offer or sell, or enter into any agreement to sell, any
debt securities of the Company other than borrowings under the Company's
revolving credit agreements and lines of credit, the private placement of
securities, borrowings from Great Western and issuances in the ordinary course
of business of the Company's commercial paper.
7. (a) The Company shall indemnify and hold harmless each
Underwriter, each other person, if any, who is participating with the
Underwriters in the distribution of the Underwritten Securities who is an
"underwriter" within the meaning of Section 2(11) of the Act with respect to
the distribution of the Underwritten Securities (the "Participants") and each
person, if any, who controls any Underwriter or any Participant within the
meaning of Section 15 of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which such
Underwriter or such Participant or controlling person may become subject, under
the Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or arises out of, or
is 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 shall reimburse each
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<PAGE> 14
Underwriter, each Participant and each controlling person for any legal and
other expenses reasonably incurred, as incurred, by such Underwriter or such
Participant or controlling person in investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, (i) that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein; and (ii) that with respect to
any Preliminary Prospectus or Prospectus, the foregoing indemnification shall
not inure to the benefit of any Underwriter, any Participant or any person
controlling that Underwriter or Participant on account of any loss, claim,
damage, liability or action arising from the purchase of Securities by any
person from that Underwriter or Participant, if that Underwriter or Participant
in fact failed to send or give a copy of the Prospectus provided by the Company
in accordance with Paragraph 6(b) hereof (as such Prospectus may then be
amended or supplemented, in each case exclusive of the documents incorporated
therein by reference) to that person within the time required by the Act;
PROVIDED, HOWEVER, that subparagraph (ii) above shall not apply (X) where such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such Preliminary Prospectus or
Prospectus and such untrue statement, alleged untrue statement, omission or
alleged omission, was not corrected in the Prospectus (or the amendment or
supplement thereto) or (Y) where the failure to deliver such Prospectus (or the
amendment or supplement thereto) resulted from noncompliance by the Company
with Paragraph 6(b) hereof. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have to any Underwriter, any
Participant or controlling person.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement and any person who controls the
Company within the meaning of Section 15 of the Act from and against any loss,
claim, damage or liability, joint or several, and any action in respect
thereof, to which the Company or any such director, officer or controlling
person may become subject, under the Act, the Exchange Act or federal or state
statutory law or regulation, at common law or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the
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<PAGE> 15
Prospectus, or arises out of, or is 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, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on
behalf of that Underwriter specifically for inclusion therein, and shall
reimburse the Company or any such director, officer or controlling person for
any legal and other expenses reasonably incurred, as incurred, by the Company
or any such director, officer or controlling person in investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company or any of its
directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this
Paragraph of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Paragraph, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Paragraph except to the extent that it has been prejudiced in any material
respect by such failure or from any liability which it may have otherwise. If
any such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein, and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Paragraph 7 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; PROVIDED,
HOWEVER, any indemnified party shall have the right to employ separate counsel
in any such claim or action and to participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate
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<PAGE> 16
counsel or (iii) the indemnifying party has failed to assume the defense of
such claim or action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim or action on behalf of such
indemnified party, it being understood, however, that the indemnifying party
shall not, in connection with any one such claim or action or separate but
substantially similar or related claims or actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in
writing by the Representatives, if the indemnified parties under this Paragraph
consist of any Underwriter, any Participant or any of their respective
controlling persons, or by the Company, if the indemnified parties under this
Paragraph consist of the Company or any of its directors, officers or
controlling persons. Each indemnified party, as a condition of the indemnity
agreements contained in Paragraph 7(a) and 7(b) hereof, shall use its best
efforts to cooperate with the indemnifying party in the defense of any such
claim or action. The indemnifying party shall not be liable for any settlement
of any such claim or action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with its written consent or
if there be a final judgment in favor of the plaintiff in any such claim or
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Paragraph
shall for any reason be unavailable to an indemnified party under Paragraph
7(a) or 7(b) hereof in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters and the Participants on the other from the
offering of the Underwritten Securities, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters and the Participants on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations.
The relative benefits
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<PAGE> 17
received by the Company on the one hand and the Underwriters and the
Participants on the other with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Underwritten Securities (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters and the Participants with respect to such offering in each case as
set forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Paragraph 7(d) were to be determined by pro
rata allocation or by any other method of allocation (even if the Underwriters
and the Participants were treated as one entity for such purpose) which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Paragraph 7(d) shall be deemed to include, for purposes of this Paragraph 7(d),
any legal 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 Paragraph 7(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Paragraph 7(d) are several in proportion to
their respective underwriting obligations and not joint.
(e) The agreements contained in this Paragraph and the
representations, warranties and agreements of the Company contained elsewhere
in this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall survive the delivery of and payment for the
Underwritten Securities and shall remain operative and in full force and
effect, regardless of the termination of this Agreement or any investigation
made on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company.
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<PAGE> 18
8. The obligations of the Underwriters under this Agreement
may be terminated by the Representatives, in their absolute discretion, by
notice given to and received by the Company prior to the delivery of and
payment for the Underwritten Securities, if, during the period beginning on the
date of the Terms Agreement to and including the Delivery Date, (a) trading in
securities generally on the New York Stock Exchange is suspended or minimum
prices are established on that Exchange, or (b) a banking moratorium is
declared by either Federal or New York State authorities, or (c) the United
States is or becomes engaged in hostilities which have resulted in the
declaration of a national emergency, or (d) the rating of any of the Company's
debt securities shall have been lowered by either Moody's Investors Services,
Inc. or Standard & Poor's Corporation or either of such rating agencies shall
have publicly announced that it has placed any of the Company's debt securities
on what is commonly termed a "watch list" for possible downgrading.
9. The respective obligations of the Underwriters under this
Agreement with respect to the Underwritten Securities are subject to the
accuracy in all material respects, on the date of the Terms Agreement and on
the Delivery Date, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company in all material respects of all
covenants and agreements contained herein, and to each of the following
additional terms and conditions applicable to the Underwritten Securities:
(a) At or before the Delivery Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission, nor any order directed to any document incorporated by reference in
any Prospectus shall have been initiated or threatened by the Commission.
(b) Stephen F. Adams, General Counsel and Senior Vice
President of the Company, shall have furnished to the Representatives his
opinion addressed to the Underwriters and dated the Delivery Date, in form and
substance reasonably satisfactory to the Representatives and their counsel, 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;
(ii) The Company has the corporate power and authority
necessary to own, lease and operate its properties
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<PAGE> 19
and conduct its business as described in the Registration Statement;
(iii) To the best of his knowledge, the Company is duly
qualified to do business and in good standing as a foreign corporation
in each jurisdiction in which its conduct of business or its ownership
or leasing of properties requires such qualification and in which the
failure to be so qualified would have a material adverse effect on the
Company and its Subsidiaries taken as a whole;
(iv) All of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and validly issued and is
fully paid and non-assessable, and, except as described in the
Registration Statement, all of such capital stock is owned by the
Company, directly or through Subsidiaries, free and clear of any
mortgage, pledge, lien, claim or encumbrance;
(v) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus and the shares
of the Company's issued and outstanding Common Stock set forth therein
are owned, directly or indirectly, by Great Western Bank;
(vi) Such counsel does not know of any material
litigation or any governmental proceeding pending or threatened
against the Company or any of its Subsidiaries which (individually or
in the aggregate) is or would be required to be disclosed in the
Prospectus which is not disclosed;
(vii) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations, or
which are required to be filed by the Exchange Act or the rules and
regulations of the Commission thereunder as exhibits to any document
incorporated by reference in the Prospectus, which have not been filed
as exhibits to the Registration Statement or to such document, or
incorporated therein by reference as permitted by the Rules and
Regulations or the rules and regulations of the Commission under the
Exchange Act, as the case may be;
(viii) To the best of such counsel's knowledge, the Company
is not in violation of its corporate charter or by- laws, none of the
Subsidiaries are in violation of their corporate charters or by-laws,
and neither the Company nor any of its Subsidiaries are in default in
the observance or performance of any agreement, indenture or
instrument, the
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<PAGE> 20
effect of which violation or default would be material to the Company
and its Subsidiaries taken as a whole; and
(ix) To the best of his knowledge, the execution,
delivery and performance of this Agreement and compliance by the
Company with the provisions of the Underwritten Securities and the
Indenture will not conflict with, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets
of the Company or any of its Subsidiaries pursuant to the terms of, or
constitute a default in the observance or performance of, any material
agreement, indenture or instrument, or result in a violation of the
corporate charter or by-laws of the Company or any of its Subsidiaries
or any order, statute, rule or regulation of any court or governmental
agency having jurisdiction over the Company, any of its Subsidiaries
or their respective properties, the effect of which conflict, lien,
charge, encumbrance, default or violation would be material to the
Company and its Subsidiaries taken as a whole; and no consent,
authorization or order of, or filing or registration with, any court
or governmental agency is required for the execution, delivery and
performance by the Company of this Agreement except such as may be
required by the Act, the Trust Indenture Act, the Exchange Act and
state securities laws.
(c) Winthrop, Stimson, Putnam & Roberts, counsel to the
Company, shall have furnished to the Representatives their opinion addressed to
the Underwriters and dated the Delivery Date, in form and substance reasonably
satisfactory to the Representatives and their counsel, to the effect that:
(i) This Agreement has been duly authorized,
executed and delivered by the Company;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights
generally or by general equity principles;
(iii) The Underwritten Securities are in a form
contemplated by the Indenture and approved by the board of directors
of the Company and have been duly authorized by all necessary
corporate action and, when executed and authenticated as specified in
the Indenture and delivered against payment therefor in accordance
with this Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy,
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<PAGE> 21
insolvency, or other laws relating to or affecting creditors' rights
generally or by general equity principles;
(iv) The Underwritten Securities and the Indenture
conform in all material respects to the statements concerning them in
the Registration Statement and the Prospectus;
(v) The Indenture is qualified under, and complies
as to form in all material respects with, the Trust Indenture Act;
(vi) The Registration Statement is effective under the
Act; no stop order suspending its effectiveness has been issued, and,
to the knowledge of such counsel, no proceeding for that purpose is
pending or threatened by the Commission; and no order directed to any
document incorporated by reference in the Prospectus has been issued;
(vii) The Registration Statement, as of the time it became
effective, and the Prospectus, as of its issue date (except that, in
each case, no opinion need be expressed as to the financial statements
and schedules and other financial and statistical data contained or
incorporated by reference therein), complied as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission under
said Acts, and the documents incorporated by reference in the
Prospectus, when filed with the Commission (except that no opinion
need be expressed as to the financial statements and schedules and
other financial and statistical data contained or incorporated by
reference therein), complied as to form in all material respects with
the applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and (except that no opinion
need be expressed as to the financial statements and schedules and
other financial and statistical data contained or incorporated by
reference therein) nothing has come to the attention of such counsel
to lead them to believe that the Registration Statement, as of the
time it became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus, as of the Delivery Date, contained any untrue statement of
a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) All corporate proceedings and other legal matters
incident to the authorization and validity of this Agreement, and the
authorization, form and validity of the Underwritten
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<PAGE> 22
Securities, the Indenture, the Registration Statement, the Prospectus and any
supplement, amendment or incorporated document, other than financial statements
and other financial data, and all other legal matters and transactions
contemplated by this Agreement shall be reasonably satisfactory in all material
respects to Simpson Thacher & Bartlett, counsel for the Underwriters; the
Company shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters; and
Simpson Thacher & Bartlett shall have furnished to the Representatives on the
Delivery Date such opinions with respect to such matters as the Representatives
may reasonably request.
(e) (i) Neither the Company nor any of the Subsidiaries shall
be in default (nor shall an event have occurred which, with notice or lapse of
time, or both, would constitute a default) under any provision of any
instrument relating to any outstanding indebtedness of the Company or any of
the Subsidiaries (except where such default would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole) and (ii) no
material amount of the assets of the Company or of the Company and its
Subsidiaries taken as a whole shall have been pledged or mortgaged, except as
referred to in the Registration Statement and Prospectus, as amended or
supplemented.
(f) The Company shall have furnished to the Representatives
on the Delivery Date a certificate, dated the Delivery Date, of its President,
its Chief Financial Officer or its Treasurer to the effect that:
(i) The representations, warranties and agreements
of the Company in Paragraph 1 hereof are true and correct in all
material respects as of the Delivery Date; the Company has complied in
all material respects with all its agreements contained herein and
satisfied in all material respects all conditions on its part to be
performed and satisfied at or prior to the date of such certificate
(except that no certificate need be given in respect of the conditions
set forth in Paragraphs 9(d) and 9(g) hereof); and the conditions set
forth in Paragraph 9(a) hereof which are to be fulfilled at or prior
to the date of such certificate have been fulfilled in all material
respects; and
(ii) He has reviewed the Registration Statement and the
Prospectus and, in his opinion, (A) the Registration Statement, as of
the time it became effective, 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 not misleading,
(B) the Prospectus does not contain an untrue statement of a
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<PAGE> 23
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (C) since the time the
Registration Statement became effective there has not occurred any
event required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(g) The Company shall have furnished to the Representatives
on the Delivery Date a letter in form and substance reasonably satisfactory to
the Representatives in all respects from Price Waterhouse, addressed to the
Underwriters and dated as of the Delivery Date, of the type described in the
American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 49 and covering such specified financial statement items and
procedures as were covered by their letter delivered to the Representatives
concurrently with the execution of this Agreement and confirming in all
material respects the conclusions and findings set forth in such prior letter.
(h) No order suspending the sale of the Underwritten
Securities in any jurisdiction material to the distribution of the Underwritten
Securities as contemplated hereby and designated by the Representatives
pursuant to Paragraph 6(j) hereof shall have been issued or in existence, and
no proceeding for that purpose shall have been instituted or, to the knowledge
of the Underwriters or the Company, shall be contemplated.
(i) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement, the
Prospectus and any amendments or supplements thereto, taken as a whole, contain
an untrue statement of a fact which, in the opinion of counsel to the
Representatives, is material or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(j) During the period from the date of the Terms
Agreement to and including the Delivery Date, there shall have occurred no
material adverse change in the financial condition or results of operations of
the Company and its Subsidiaries taken as a whole.
10. If the Company shall fail to tender the Underwritten
Securities for delivery to the Underwriters for any reason permitted under this
Agreement, or if the Underwriters shall decline to purchase the Underwritten
Securities for any reason permitted under this Agreement, the Company shall
reimburse the Underwriters for the reasonable fees and expenses of their
counsel and for such other reasonable out-of-pocket expenses as shall have been
incurred by them in connection with
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<PAGE> 24
this Agreement and the proposed purchase of Underwritten Securities, and upon
demand the Company shall pay the full amount thereof to the Representatives.
If this Agreement is terminated pursuant to Paragraph 4 hereof by reason of the
default of one or more Underwriters, the Company shall not be obligated to
reimburse any defaulting Underwriter on account of those expenses.
11. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement on behalf of the Representatives. Any
notice by the Company to the Underwriters shall be sufficient if given in
writing or by telegraph addressed to the Representatives at such address and
time as may be specified in the Terms Agreement, and any notice by the
Underwriters to the Company shall be sufficient if given in writing or by
telegraph addressed to the Company at 9200 Oakdale Avenue, Chatsworth,
California 91311, Attention of Mr. Bruce F. Antenberg.
12. This Agreement shall be binding upon each Underwriter,
the Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the indemnity agreement of the Company contained in Paragraph 7 hereof
shall also be deemed to be for the benefit of any Participant and the person or
persons, if any, who control any Underwriter or Participant within the meaning
of Section 15 of the Act, and (b) the indemnity agreement of the Underwriters
contained in Paragraph 7 hereof shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person who controls the Company within the
meaning of Section 15 of the Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Paragraph, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
13. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange is open for trading.
14. All representations, warranties and agreements of the
Company contained in this Agreement, or contained in certificates of officers
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of the termination of this Agreement or any investigation made by or
on behalf of the Underwriters or any person controlling the Underwriters or by
or on behalf of the Company, and shall survive each delivery of and payment for
any of the Underwritten Securities.
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<PAGE> 25
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. The Terms Agreement may be
executed in one or more counterparts, and if executed in more than one
counterpart the executed counterparts shall together constitute a single
instrument.
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<PAGE> 1
EXHIBIT 4(a)
ACTION OF THE PRICING COMMITTEE
OF THE BOARD OF DIRECTORS OF
ARISTAR, INC.
The undersigned, being all of the members of the Pricing
Committee of the Board of Directors of Aristar, Inc. (the "Corporation"), do
hereby adopt the following resolutions and authorize the taking of the
following actions:
WHEREAS, that pursuant to resolutions of the Pricing
Committee of the Board of Directors adopted by unanimous consent as of June 24,
1992, the Corporation approved the form, terms and provisions of the Indenture
dated as of July 1, 1992 between the Corporation and The Chase Manhattan Bank,
N.A., as trustee, including the Standard Multiple-Series Indenture Provisions
dated as of July 1, 1992 attached thereto and incorporated by reference therein
(collectively the "Senior Indenture"), providing for the issue by the
Corporation of senior debt securities;
RESOLVED, that pursuant to resolutions of the Board of
Directors adopted by unanimous consent as of March 10, 1992, the Corporation
issue a series of unsecured and unsubordinated securities under and pursuant to
the Senior Indenture;
RESOLVED, that the title of the series shall be
"7 3/4% Senior Notes due June 15, 2001" (the "Notes");
RESOLVED, that the aggregate principal amount of the Notes
shall be $150,000,000 and the Notes shall, except as otherwise provided in the
Senior Indenture, mature on June 15, 2001, bear interest at a rate of 7 3/4%
per annum from July 7, 1994, payable semi- annually on June 15 and December 15,
commencing December 15, 1994, and the regular record dates for the payment of
interest on any interest payment date shall be the May 31 or November 30
(whether or not a business day), as the case may be, next preceding such
interest payment date and the Notes shall be payable as to principal and
interest at the office or agency of the Corporation in New York City, in such
coin or currency of the United States of America as at the time of payment
shall be legal tender for public and private debts, be issuable as fully
registered senior notes without coupons in denominations of $100,000 and any
larger amount that is an integral multiple of $1,000, and shall not be
redeemable prior to maturity, all upon conditions set forth and as more fully
provided in the Senior Indenture;
<PAGE> 2
RESOLVED, that the indebtedness represented by the Notes may
be satisfied and discharged by the Corporation at any time upon compliance with
the provisions of Section 403 of the Senior Indenture;
RESOLVED, that The Chase Manhattan Bank, N.A. be, and it
hereby is, appointed Paying Agent with respect to the Notes;
RESOLVED, that The Chase Manhattan Bank, N.A. is hereby
appointed agent of the Corporation for the registration of transfer and
exchange of the Notes; and that the corporate trust offices of The Chase
Manhattan Bank, N.A. in the City and State of New York are hereby designated as
the offices or agencies of the Corporation where the Notes may be presented for
payment or for transfer or exchange as in said Senior Indenture provided and
where notices and demands to or upon the Corporation in respect of the Notes or
said Senior Indenture may be served;
RESOLVED, that the Notes shall initially be issued in the form
of one or more global securities and deposited with or on behalf of The
Depository Trust Company; interests in Notes issued in global form may not be
exchanged, in whole or in part, for the individual securities represented
thereby, except as provided in the Senior Indenture and except that the
Corporation may at any time and in its sole discretion determine not to have
any of the Notes represented by one or more global securities and, in such
event, will issue individual certificated notes in exchange for such global
securities;
RESOLVED, that the form, terms and provisions of the Terms
Agreement (dated June 29, 1994) and Underwriting Agreement Basic Provisions
(dated June 24, 1992) incorporated therein (the "Terms Agreement") submitted
herewith be, and the same hereby is, approved; and the President or any Vice
President of the Corporation be, and each of them hereby is, authorized to
execute and deliver in the name and on behalf of the Corporation, such Terms
Agreement with the blanks therein filled with the applicable information as
approved by the Board of Directors or this Pricing Committee either with or
without meeting, and with such other changes therein as shall be approved by
said officers of the Corporation, such approval to be conclusively evidenced by
the execution and delivery of any such Terms Agreement;
RESOLVED, that it is desirable and appropriate that the
Corporation enter into the Terms Agreement with Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co. and Lehman
Brothers Inc. (the "Underwriters");
RESOLVED, that the price at which the Notes shall be sold by
the Corporation to the Underwriters shall be 99.383% of par, or an aggregate of
$149,074,500, plus interest, if any, accrued from July 7, 1994 to the Delivery
Date (as defined in the Terms Agreement), the initial public offering price at
which the
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<PAGE> 3
Notes shall be offered for sale by the Underwriters shall be 99.933% of par, or
an aggregate of $149,899,500, plus interest, if any, accrued from July 7, 1994,
and the underwriting discount applicable to the Notes shall be .55% of par as
set forth in the Terms Agreement;
RESOLVED, that the Notes shall initially be issued in the form
attached hereto as Exhibit A and shall contain such other terms as set forth in
such form; and
RESOLVED, that the officers of the Corporation and its counsel
be, and they hereby are, authorized to take all such further action and to
execute and deliver all such further instruments and documents, in the name and
on behalf of the Corporation, and under its corporate seal or otherwise, and to
pay all such expenses and taxes, as in their judgment shall be necessary,
proper or advisable in order fully to carry out the intent and accomplish the
purpose of the foregoing resolutions and each of them.
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<PAGE> 4
Dated: As of June 29, 1994
/s/ Michael M. Pappas
------------------------------
Michael M. Pappas
Director and Member of Pricing
Committee
/s/ James A. Bare
------------------------------
James A. Bare
Director and Member of Pricing
Committee
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<PAGE> 1
EXHIBIT 4(b)
UNLESS THIS SECURITY (AS DEFINED HEREIN) IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (THE "DEPOSITARY"), TO THE COMPANY (AS DEFINED HEREIN) OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE TO BE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY AMOUNT
PAYABLE THEREUNDER IS MADE PAYABLE TO CEDE & CO. OR TO SUCH OTHER NAME, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
UNLESS AND UNTIL THIS SECURITY IS EXCHANGED IN WHOLE OR IN
PART FOR CERTIFICATED SECURITIES REGISTERED IN THE NAMES OF THE VARIOUS
BENEFICIAL HOLDERS HEREOF AS THEN CERTIFIED TO THE COMPANY BY THE DEPOSITARY OR
A SUCCESSOR DEPOSITARY, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
ARISTAR, INC.
7 3/4% SENIOR NOTE DUE JUNE 15, 2001
No. 1 $150,000,000
CUSIP 040420 AT 8
ARISTAR, INC., a Delaware corporation (herein called the
"Company", which term shall refer to such Company until a successor corporation
shall have become such pursuant to the provisions of the Indenture referred to
herein and thereafter "Company" shall mean such successor corporation), for
value received, hereby promises to pay to Cede & Co. , or registered
assigns, the principal sum of ------ One Hundred Fifty Million---- Dollars
($150,000,000) on June 15, 2001, and to pay interest thereon from July 7, 1994
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on June 15 and December 15 in each year,
commencing December 15, 1994, at the rate of 7 3/4% per annum, until the
principal hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest,
<PAGE> 2
which shall be the May 31 or November 30 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any interest not
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any, on) and
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, in The City of New
York, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.
This security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of July 1, 1992 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., as
Trustee (herein called the "Trustee," which term includes any successor trustee
or trustees under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, limited in aggregate principal
amount to $150,000,000.
The Securities are not redeemable at the option of the Company
prior to Stated Maturity.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the
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<PAGE> 3
consent of the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding of all series to be affected (acting as one
class). The Indenture also provides that, regarding the Securities of any
series, the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding of such series may waive certain past
defaults and their consequences on behalf of the Holders of all Securities of
such series. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As provided in the Indenture, the Company shall be discharged
from its obligations with respect to the Securities of any series when (1) with
respect to all Outstanding Securities of such series, the Company has deposited
or caused to be deposited with the Trustee as a trust fund specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series (i) money in an amount as will, or (ii) U.S.
Government Obligations as will, together with the predetermined and certain
income to accrue thereon without consideration of any reinvestment thereof, or
(iii) a combination of (i) and (ii) as will (in a written opinion with respect
to (ii) or (iii) of independent public accountants delivered to the Trustee),
be sufficient to pay and discharge the entire indebtedness on all Outstanding
Securities of such series for principal (and premium, if any) and interest, if
any, to the Stated Maturity or any Redemption Date, as the case may be; and (2)
the Company has paid or caused to be paid all other sums payable with respect
to the Outstanding Securities of such series; and (3) the Company has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel stating that
all such conditions precedent have been complied with; and (4) the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
Holders of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result thereof and will be subject to
Federal income tax as if such option had not been exercised.
No reference herein to the Indenture and no provisions of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein and in the Indenture provided;
subject, however, to the provisions for the discharge of the Company from its
obligations under the Securities upon satisfaction of the conditions set forth
in the preceding paragraph or in the Indenture.
As provided in the Indenture, upon any consolidation or merger
or any conveyance, transfer or lease of the properties and
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<PAGE> 4
assets of the Company substantially as an entirety in accordance with the
provisions of the Indenture, the successor corporation formed by such
consolidation or into which the predecessor corporation is merged or to which
such conveyance, transfer or lease is made shall be substituted for the
predecessor corporation with the same effect as if such successor corporation
had been named as the Company. Thereafter the predecessor corporation shall be
relieved of the performance and observance of all obligations and covenants of
the Indenture and the Securities, including but not limited to the obligation
to make payment of the principal of (and premium, if any, on) and interest, if
any, on all the Securities then Outstanding, and, in the event of any such
conveyance, transfer or lease, may be liquidated and dissolved.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of (and premium, if any) and interest on this Security are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for a like
aggregate principal amount and tenor, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $100,000 and any larger amount that is
an integral multiple of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount and tenor of Securities of
this series of a different authorized denomination, upon surrender of the
Securities to be exchanged at any such office or agency.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
As provided in the Indenture, no recourse shall be had for the
payment of the principal of (or premium, if any, on) or the interest, if any,
on this Security, or any part hereof, or
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<PAGE> 5
for any claim based hereon or otherwise in respect hereof, or of the
indebtedness represented hereby, or upon any obligation, covenant or agreement
of the Company in the Indenture, against any incorporator, direct or indirect
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation (either directly or through the Company
or any such successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all liability, if any, of that character against every
such incorporator, stockholder, officer and director being by the acceptance
hereof, and as a condition of and as part of the consideration for the issue
hereof, expressly waived and released.
The Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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<PAGE> 6
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
ARISTAR, INC.
By: /s/ Michael M. Pappas
-------------------------
President
[SEAL]
Attest:
/s/ S.F. Adams
- - ------------------------
Secretary
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<PAGE> 7
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
issued under the within-mentioned Indenture.
Dated: July 7, 1994
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee
By: /s/ Timothy Burke
-----------------------------
Authorized Signatory
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<PAGE> 8
----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on
this Security, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -- as tenants in common UNIF GIFT MIN ACT --
TEN ENT -- as tenants by the
entireties with ------------ Custodian
with right of (Cust)
survivorship and not
as tenants in common ------------
JT TEN -- as joint tenants (Minor)
with right of Under Uniform Gifts
survivorship and not to Minors Act
as tenants in common
------------
(State)
Additional abbreviations may also be used though not in the above list.
--------------
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<PAGE> 9
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers to
INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF
ASSIGNEE
/----------/----------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- - ----------------------------------------------------------------
- - ----------------------------------------------------------------
the within Security of Aristar, Inc. and irrevocably constitutes
and appoints
- - ---------------------------------------------------------------
to transfer said Security on the books of the within-named
Company, with full power of substitution in the premises.
Dated:
-------------- ---------------------------------
---------------------------------
The signature to this assignment
must correspond with the name as
written upon the face of the
Security in every particular
without alteration or enlargement,
or any change whatsoever.
The signature(s) should be
guaranteed by a commercial bank or
trust company, or by a New York,
American, Boston, Midwest,
Philadelphia or Pacific stock
exchange member, a member of
National Association of Securities
Dealers, Inc. or firm whose
signature is known to the
Registrar.
-9-
