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) -
December 3, 1996
ARISTAR, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-3521 95-4128205
(State or other jurisdiction of (Commission File (I.R.S. Employer
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. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
(c) Exhibits
1(a) - Terms Agreement dated December 3, 1996 among Aristar, Inc.
and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Morgan Stanley & Co. Incorporated and BA Securities, Inc.
and the Aristar, Inc. - Debt Securities - Underwriting
Agreement Basic Provisions dated April 10, 1995
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 6 1/8% Senior Notes due December 1, 2000.
4(b) - Specimen Global 6 1/8% Senior Note due December 1,
2000.
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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
----------------------------
Executive Vice President and Chief
Financial Officer (Chief Accounting
Officer)
Date: December 5, 1996
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EXHIBIT INDEX
EXHIBITS
1(a) - Terms Agreement dated December 3, 1996 among Aristar, Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated and BA Securities, Inc. and the
Aristar, Inc. - Debt Securities - Underwriting Agreement Basic
Provisions dated April 10, 1995 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 6 1/8% Senior Notes due December 1, 2000.
4(b) - Specimen Global 6 1/8% Senior Note due December 1, 2000.
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EXHIBIT 1(A)
TERMS AGREEMENT
December 3, 1996
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 6-1/8% Senior Notes due
December 1, 2000 (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 99.336% of the principal amount thereof, together with accrued interest
thereon, if any, from December 6, 1996 to (but not including) the Delivery Date.
Principal
Underwriter Amount
Merrill Lynch, Pierce,
Fenner & Smith Incorporated....................................$50,000,000
Morgan Stanley & Co.
Incorporated...................................................$50,000,000
BA Securities,
Inc. ..........................................................$50,000,000
Total $150,000,000
The Underwritten Securities shall have the following terms:
Date of maturity: December 1, 2000
Interest rate: 6-1/8% per annum, payable semiannually
Initial public
offering price: 99.736%, plus accrued interest, if any, from
December 6, 1996 to (but not
including) the Delivery Date
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Interest payment
dates: June 1 and December 1, commencing June 1,
1997
Redemption
provisions: The Underwritten Securities are not
redeemable
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 & Co.
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
December 6, 1996
Place of closing: Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
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 December 3, 1996 to the Company's Prospectus dated
December 3, 1996 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.
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All of the provisions contained in the document entitled
"Aristar, Inc. -- Debt Securities -- Underwriting Agreement Basic Provisions"
and dated April 10, 1995, 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. Terms defined in such Underwriting Agreement Basic
Provisions are used herein as therein defined.
Please accept this offer no later than 6:00 P.M., New York
City time, on December 3, 1996 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 December 3, 1996, to purchase the Underwritten Securities on the
terms set forth therein."
Very truly yours,
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
Morgan Stanley & Co. Incorporated
BA Securities, Inc.
By: Merrill Lynch, Pierce, Fenner &
Smith Incorporated
By/s/ Frank V. McMahon
____________________________
Accepted:
Aristar, Inc.
By/s/ James A. Bare
______________________________
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ARISTAR, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
April 10, 1995
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- 58361)
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,
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and amendments or supplements thereof, before it became effective under the Act,
including any prospectus filed 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
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by-laws or in default in 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
("Great Western") or any affiliate thereof 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, fraudulent conveyance, reorganization, moratorium or
other laws relating to or affecting creditors' rights generally, by general
equity principles or by an implied covenant of good faith and fair dealing),
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(ii) the Underwritten Securities have been validly authorized for issuance and
sale pursuant to this Agreement and, upon execution, authentication, 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,
fraudulent conveyance, reorganization, moratorium or other laws relating to or
affecting creditors' rights generally, by general equity principles or by an
implied covenant of good faith and fair dealing) 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
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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.
(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.
(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
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Representatives by or on behalf of any Underwriter specifically for inclusion in
the Registration Statement or the Prospectus. The Terms Agreement also specifies
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
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for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
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 one business day 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
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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 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;
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(g) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to 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
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relating to the organization of the underwriting syndicate to the Underwriters
by 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 or any affiliate thereof 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,
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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 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,
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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, 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
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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 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 statement or omissions which
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resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
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
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behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company.
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;
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<PAGE>
(ii) The Company has the corporate power and authority
necessary to own, lease and operate its properties 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;
(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
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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; 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,
fraudulent conveyance, reorganization, moratorium or other laws
relating to or affecting creditors' rights generally, by general equity
principles or by an implied covenant of good faith and fair dealing;
(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
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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, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws relating to or
affecting creditors' rights generally, by general equity principles or
by an implied covenant of good faith and fair dealing;
(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 by
the Commission;
(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
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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 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
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(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 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 LLP, 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 the Representatives may reasonably request.
(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 Undersritten
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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 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
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or on behalf of the Company, and shall survive each delivery of and payment for
any of the Underwritten Securities.
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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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:
RESOLVED, that pursuant to resolutions of the Board of
Directors adopted by unanimous consent as of March 30, 1995, the Corporation
issue a series of unsecured and unsubordinated securities under and pursuant to
the Indenture dated as of July 1, 1995 between the Corporation and The Bank of
New York, as trustee, including the Standard Multiple-Series Indenture
Provisions dated as of July 1, 1995 attached thereto and incorporated by
reference therein (collectively, the "Senior Indenture");
RESOLVED, that the title of the series shall be "6 1/8% Senior
Notes due December 1, 2000" (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 December 1, 2000, bear interest at a rate of 6 1/8%
per annum from December 6, 1996 or from the most recent interest payment date to
which interest has been paid or duly provided for, payable semi-annually on June
1 and December 1, commencing June 1, 1997, and the regular record dates for the
payment of interest on any interest payment date shall be (in each case, whether
or not a business day) the May 15 or November 15, 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;
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 Bank of New York be, and it hereby is,
appointed Paying Agent with respect to the Notes;
RESOLVED, that The Bank of New York 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 Bank of New York in the City and
State of New York are hereby designated
<PAGE>
State of New York are here by 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 December 3, 1996) and Underwriting Agreement Basic Provisions
(dated April 10, 1995) incorporated therein (collectively, 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, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated and BA Securities, Inc.
(the "Underwriters");
RESOLVED, that the price at which the Notes shall be sold by
the Corporation to the Underwriters shall be 99.336% of par, or an aggregate of
$149,004,000, the initial public offering price at which the Notes shall be
offered for sale by the Underwriters shall be 99.736% of par, or an aggregate of
$149,604,000, plus interest, if any, accrued from December 6, 1996, and the
underwriting discount applicable to the Notes shall be 0.4% 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>
Dated: As of December 3, 1996
/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>
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.
6 1/8% SENIOR NOTE DUE DECEMBER 1, 2000
No. 1 $150,000,000
CUSIP 040420 AZ 4
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
December 1, 2000, and to pay interest thereon from December 6, 1996 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on June 1 and December 1 in each year, commencing
June 1, 1997, at the rate of 6 1/8% 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
<PAGE>
for such interest, which shall be (in each case whether or not a Business Day)
the May 15 or November 15, 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, 1995 (herein called the
"Indenture"), between the Company and The Bank of New York, 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 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
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<PAGE>
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 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
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<PAGE>
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 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>
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:--------------------------
Vice President
[SEAL]
Attest:
- --------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated and
issued under the within-mentioned Indenture.
Dated: December __, 1996
THE BANK OF NEW YORK, as Trustee
By:--------------------------------
Authorized Signatory
-5-
<PAGE>
---------------
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>
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.
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Security
Registrar, which requirements include
membership or participation in the
Security Transfer Agent Medallion Program
("STAMP") or such other "signature
guarantee program" as may be determined by
the Security Registrar in addition to, or
in substitution for, STAMP, all in
accordance with the Securities Exchange
Act of 1934, as amended.
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<PAGE>
