1
Exhibit 1(b)
DRAFT
6/12/97
$__________________
ARISTAR, INC.
Medium-Term Notes, Series __
AGENCY AGREEMENT
____________ __, 1997
[Name and Address of Agents]
Ladies and Gentlemen:
ARISTAR, INC., a Delaware corporation (the "Company"),
confirms its agreement with each of you (individually an "Agent" and
collectively the "Agents") with respect to the issue and sale by the Company of
up to $__________ aggregate principal amount of its Medium-Term Notes, Series
___ (the "Notes"). The Notes are to be issued from time to time pursuant to an
indenture, dated as of _________ __, 1997 (as it may be supplemented or amended
from time to time, the "Indenture"), between the Company and __________________,
as trustee (the "Trustee").
Subject to the terms and conditions stated herein, and subject
to the reservation by the Company of the right to sell Notes directly to
investors on its own behalf at any time, to sell Notes through other agents on
terms substantially equivalent hereto or to sell Notes to one or more
underwriters in accordance with the terms of an underwriting agreement
substantially in the form previously filed as an exhibit to the Registration
Statement (as hereinafter defined), the Company hereby appoints the Agents the
non-exclusive agents of the Company for the purpose of soliciting offers to
purchase the Notes from the Company by others. This Agreement shall only apply
to sales of the Notes and not to sales of any other securities or evidences of
indebtedness and only on the specific terms set forth herein.
2
SECTION 1. Representations and Warranties. The Company
represents and warrants to each Agent as of the date hereof, as of the Closing
Date hereinafter referred to and as of the times referred to in Section 6(a) and
6(b) hereof (each such time being hereinafter referred to as a "Representation
Date"), as follows:
(a) A registration statement on Form S-3 (File No.
333-_______) with respect to the Notes 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 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 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 applicable Representation Date
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 by or on behalf of
the Agents 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. Each Agent hereby confirms that the
information
-2-
3
as to it contained under "Plan of Distribution" in the Prospectus has been
supplied in writing by it to the Company for inclusion therein.
(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 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, the Indenture and each applicable
Purchase Agreement (as defined in Section 11), if any, and compliance by the
Company with the provisions of the Notes 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, each applicable Purchase
Agreement, if any, 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
LLP, 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) The Indenture has been duly executed and delivered and
validly authorized by the Company and constitutes 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), (ii) the Notes 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 Notes may be limited by bankruptcy,
insolvency,
-3-
4
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 Notes 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 applicable Representation 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, and will be as of the applicable Representation Date, 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.
(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 applicable Representation 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
-4-
5
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.
SECTION 2. Solicitations as Agents. (a) On the basis of the
representations and warranties contained herein, but subject to the terms and
conditions herein set forth, each Agent agrees, as a non-exclusive agent of the
Company, to use its best efforts to solicit offers to purchase the Notes upon
the terms and conditions set forth in the Prospectus. No Agent shall otherwise
employ, pay or compensate any other person to solicit offers to purchase the
Notes or to perform any of its functions as agent without the prior written
consent of the Company, which consent shall not be unreasonably withheld.
(b) The Company reserves the right, in its sole discretion, to
suspend solicitation of offers to purchase the Notes commencing at any time for
a period of time or permanently. Upon receipt of at least one business day's
notice from the Company, the Agents will forthwith suspend solicitation of
offers to purchase the Notes from the Company until such time as the Company has
advised the Agents that such solicitation may be resumed. For the purpose of the
foregoing sentence, "business day" shall mean any day which is not a Saturday or
Sunday and which in New York City is not a day on which banking institutions are
generally authorized or obligated by law to close.
(c) Promptly upon the closing of the sale of any Notes sold by
the Company as a result of a solicitation made by an Agent, the Company agrees
to pay such Agent a commission in accordance with the schedule relating to the
Notes set forth in Exhibit A hereto.
(d) The Agents are authorized to solicit offers to purchase
the Notes only in denominations of $100,000 or any amount in excess thereof
which is an integral multiple of $1,000, at a purchase price equal to 100% of
the principal amount thereof or such other purchase price as shall be specified
by the Company. Each Agent shall communicate to the Company, orally or in
writing, each reasonable offer to purchase Notes received by it as an Agent. The
Company shall have the sole right to accept offers to purchase the Notes and may
reject any such offer in whole or in part. Each Agent shall have the right, in
its discretion reasonably exercised, to reject any offer to purchase the Notes
received by it in whole or in part, and any such rejection shall not be deemed a
breach of its agreement contained herein.
(e) Administrative procedures respecting the sale of Notes
hereunder shall be agreed upon from time to time by the Agents and the Company
(the "Procedures"). The Procedures shall include those procedures for the Notes
set forth in Exhibit B hereto. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by each
of them herein and in the Procedures.
-5-
6
(f) The documents required to be delivered by Section 5 hereof
shall be delivered at the offices of Winthrop, Stimson, Xxxxxx & Xxxxxxx, Xxx
Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, not later than 10:00 A.M., New
York City time on the date hereof or at such other date or time as may be
mutually agreed upon by the Company and the Agents, which in no event shall be
later than the time at which the Agents initially commence solicitations of
offers to purchase Notes hereunder (the "Closing Date").
SECTION 3. Covenants of the Company. The Company covenants and
agrees with the Agents as follows:
(a) To furnish promptly to the Agents 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 Agents 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) the
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 Agents, a prospectus relating to the Notes 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 Prospectus to comply with the Act, to immediately notify the Agents to
suspend solicitation of purchases of the Notes; and, if an Agent holds Notes
which it purchased as principal pursuant to Section 11 hereof, 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 on which such Agent purchased such Notes, such
Agent shall pay the costs incurred in connection with the preparation of such
amendment or supplement); and, if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus to enable the Agents to
resume soliciting purchases of Notes to promptly advise the Agents by telephone
(with confirmation in writing) and as soon as is reasonably practicable, to
prepare and file (subject to (e) below) with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance;
(d) To timely file (subject to (e) below) with the Commission
during any period in which, in the opinion of the Agents' counsel, any
Prospectus is required by law to be delivered in connection with sales of Notes,
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;
-6-
7
(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 Agents and counsel for the Agents and to
provide the Agents an opportunity to comment thereon;
(f) To advise the Agents immediately (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Notes 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 Notes 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 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, 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 last sale
hereunder;
(i) Until the later of (i) the expiration or termination of
this Agreement and (ii) such time as the Agents may no longer own as principal
any of the Notes purchased hereunder, to furnish to the Agents 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; and
(j) To endeavor, in cooperation with the Agents, to qualify
the Notes for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Agents may reasonably
designate, and to maintain such qualifications in effect for as long as may be
reasonably required for the distribution of the Notes. The Company
-7-
8
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided.
SECTION 4. Payment of Expenses. (a) The Company will pay (i)
the costs incident to the authorization, issuance, sale and delivery of the
Notes 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 and fees in connection with the
listing of the Notes on any securities exchange, (vi) the costs of any filings
with the National Association of Securities Dealers, Inc., (vii) the fees and
disbursements of counsel to the Company, (viii) the fees paid to rating agencies
in connection with the rating of the Notes, (ix) the fees and expenses of
qualifying the Notes under the securities laws of the several jurisdictions as
provided in Section 3(j) hereof and of preparing and printing a Blue Sky
Memorandum and a memorandum concerning the legality of the Notes as an
investment (including fees and expenses of counsel to the Agents in connection
therewith), (x) the costs of typing this Agreement, and (xi) all other costs and
expenses incident to the performance of the Company's obligations under this
Agreement.
(b) In addition, the Company shall reimburse the Agents for
their reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel to the Agents) incurred hereunder (other than
out-of-pocket expenses incurred by an Agent in connection with a purchase of
Notes pursuant to Section 11 hereof, which expenses shall be borne by the
Agent).
SECTION 5. Conditions of Obligations. The obligation of the
Agents, as agents of the Company, under this Agreement to solicit offers to
purchase the Notes, as well as the obligation of any Agent to purchase Notes
pursuant to any Purchase Agreement, is subject to the accuracy in all material
respects, on each Representation 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 the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
shall have been 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) On the Closing Date, the Agents shall have received the
opinion, dated as of such date, of Xxxxxxx X. Xxxxx, Senior Vice President,
Secretary and General Counsel of the Company, in form and substance reasonably
satisfactory to the Agents and their counsel, to the effect that:
-8-
9
(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 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, $1.00 par value,
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 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 the Subsidiaries are 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 the Subsidiaries taken as a whole; and
(ix) To the best of his knowledge, the execution,
delivery and performance of this Agreement and the applicable Purchase
Agreement, if any, and compliance by the Company with the provisions of
the Notes and the Indenture will not
-9-
10
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
the 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 the Subsidiaries or their
respective properties, the effect of which conflict, lien, charge,
encumbrance, default or violation would be material to the Company and
the 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 and the Purchase Agreement, if any, except
such as may be required by the Act, the Trust Indenture Act, the
Exchange Act and state securities laws.
(c) On the Closing Date, the Agents shall have received the
opinion, dated as of such date, of Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel
to the Company, in form and substance reasonably satisfactory to the Agents and
their counsel, to the effect that:
(i) This Agreement and the Purchase Agreement, if
any, have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally, by general equity principles
(regardless of whether enforceability is considered in a proceeding in
equity or at law) and by an implied covenant of good faith and fair
dealing;
(iii) The Notes 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 and any
related Purchase Agreement, will be valid and binding obligations of
the Company, enforceable in accordance with their terms, except as may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally, by general equity principles (regardless
of whether enforceability is considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair dealing;
(iv) The Notes 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
-10-
11
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 Representation 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 any related Purchase
Agreements, the Notes, 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 and any related Purchase Agreement
shall be reasonably satisfactory in all material respects to Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel to the Agents, and 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.
(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) On the Closing Date the Agents shall have received a
certificate of the President, the Chief Financial Officer or the Treasurer of
the Company to the effect that:
-11-
12
(i) The representations, warranties and agreements of
the Company in Section 1 hereof are true and correct in all material
respects as of the Closing 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 Sections 5(d) and 5(g) herein); and the conditions set
forth in Section 5(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 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) On the Closing Date the Agents shall have received a
letter addressed to them and in form and substance reasonably satisfactory to
them in all respects from Price Waterhouse LLP, dated as of such date, of the
type described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 72 and covering such specified financial
statement items and procedures as the Agents may reasonably request.
(h) No order suspending the sale of the Notes in any
jurisdiction material to the distribution of Notes as contemplated hereby and
designated by the Agents pursuant to Section 3(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 Agents or the Company, shall be contemplated.
SECTION 6. Additional Covenants of the Company. The Company
covenants and agrees that:
(a) Each acceptance by it of an offer for the purchase of
Notes shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate
theretofore given to the Agents pursuant hereto are true and correct in all
material respects at the time of such acceptance, and an undertaking that such
representations and warranties will be true and correct in all material respects
at the time of delivery to the purchaser or his agent of the Notes relating to
such acceptance as though made at and as of each such time (and it is understood
that such representations and warranties shall relate to the Registration
Statement and the Prospectus as amended or supplemented to each such time);
(b) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates or maturities of
the Notes or a change in the principal amount of
-12-
13
Notes remaining to be sold or similar changes) or the Company files with the
Commission any document incorporated by reference into the Prospectus, the
Company shall, concurrently with such amendment, supplement or filing, furnish
the Agents with a certificate of the President, the Chief Financial Officer or
the Treasurer of the Company in form reasonably satisfactory to the Agents to
the effect that the statements contained in the certificate referred to in
Section 5(f) hereof which was last furnished to the Agents are true and correct
at the time of such amendment, supplement or filing, as the case may be, as
though made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(f), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate;
(c) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates or maturities of
the Notes or a change in the principal amount of Notes remaining to be sold or
similar changes) or the Company files with the Commission any document
incorporated by reference into the Prospectus, the Company shall, concurrently
with such amendment, supplement or filing, furnish the Agents and their counsel
with the written opinions of Xxxxxxx X. Xxxxx and Winthrop, Stimson, Xxxxxx &
Xxxxxxx, dated the date of delivery thereof, in form reasonably satisfactory to
the Agents, of the same tenor as the opinions referred to in Sections 5(b) and
5(c) hereof, but modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended or supplemented to the time of delivery of such
opinions or, in lieu of such opinions, counsel shall furnish the Agents with
letters to the effect that they may rely on such prior opinion to the same
extent as though it were dated the date of such letters authorizing reliance
(except that statements in such last opinions shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to the time
of delivery of such letters authorizing reliance); and
(d) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to include additional financial
information or the Company files with the Commission any document incorporated
by reference into the Prospectus which contains additional financial
information, the Company shall cause Price Waterhouse LLP to furnish to the
Agents, concurrently with such amendment, supplement or filing, a letter, dated
the date of delivery of such letter, in form reasonably satisfactory to the
Agents, of the same tenor as the letter referred to in Section 5(g) hereof but
modified to relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company; provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented solely to
include financial information as of and for a fiscal quarter, Price Waterhouse
LLP may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement unless there is contained therein any
other accounting, financial or statistical information that, in the reasonable
judgment of the Agents, should be covered by such letter in which event such
letter shall also cover such other information.
-13-
14
SECTION 7. Indemnification and Contribution. (a) The Company
shall indemnify and hold harmless each Agent, each other person, if any, who at
the written request of the Agents and with the consent of the Company is
participating with such Agent in the distribution of the Notes who is an
"underwriter" within the meaning of Section 2(11) of the Act with respect to the
distribution of the Notes (the "Participants") and each person, if any, who
controls any Agent 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 Agent 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 Agent, each
Participant and each controlling person for any legal and other expenses
reasonably incurred, as incurred, by such Agent 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) 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 any Prospectus in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Agents 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 Agent, any
Participant or any person controlling that Agent or Participant on account of
any loss, claim, damage, liability or action arising from the sale of Notes to
any person, if the Agent or Participant that solicited such sale in fact failed
to send or give a copy of the Prospectus provided by the Company in accordance
with Section 3(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 Section
3(b) hereof. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Agent, any Participant or
controlling person.
(b) Each Agent, 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
-14-
15
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 by or on behalf of such Agent 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 Agent otherwise has to the Company or any of its directors, officers
or controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 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 Section, 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 Section
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 Section 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 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 Agents, if the indemnified parties under this
Section consist of any Agent, any Participant or any of their respective
controlling persons, or by the Company, if the indemnified parties under this
Section consist of the Company or any of its directors, officers or controlling
persons.
-15-
16
Each indemnified party, as a condition of the indemnity agreements contained in
Section 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 Section shall
for any reason be unavailable to an indemnified party under Section 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 Agents and the Participants on the other from the offering of the
Notes, 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 Agents 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 received by the Company on the
one hand and the Agents 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 Notes (before deducting expenses) received by the
Company bear to the total commissions received by the Agents and the
Participants with respect to such offering. 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 Agents, 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 Agents agree that it
would not be just and equitable if contributions pursuant to this Section 7(d)
were to be determined by pro rata allocation or by any other method of
allocation (even if the Agents 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 Section 7(d) shall be deemed to include, for purposes
of this Section 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 Section 7(d), no Agent shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes sold through such Agent and distributed to the public
were offered to the public exceeds the amount of any damages which such Agent
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.
-16-
17
SECTION 8. Status of Each Agent. In soliciting offers to
purchase the Notes from the Company pursuant to this Agreement (other than
offers to purchase pursuant to Section 11 hereof), each Agent is acting solely
as agent for the Company and not as principal. Each Agent will make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes from the Company has been solicited by such Agent and
accepted by the Company but such Agent shall have no liability to the Company in
the event any such purchase is not consummated for any reason. If the Company
shall default in its obligation to deliver Notes to a purchaser whose offer it
has accepted, the Company shall hold the Agents harmless against any loss,
claim, or damage arising from or as a result of such default by the Company, and
shall pay to the Agents any commission to which they would have been entitled in
connection with such sale.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements of the Company
contained in this Agreement, or contained in certificates of officers of the
Company 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 any Agent or any person controlling such Agent or by or
on behalf of the Company, and shall survive each delivery of and payment for any
of the Notes.
SECTION 10. Termination. This Agreement may be terminated
(except with respect to offers to purchase Notes which have been accepted by the
Company) for any reason, at any time, by either party hereto upon the giving of
one day's written notice of such termination to the other party hereto. The
provisions of Sections 3(c), 3(h), 3(i), 3(j), 4, 7, 8, 9, 13 and 14 hereof
shall survive any such termination.
SECTION 11. Purchases as Principal. From time to time any
Agent may agree with the Company to purchase Notes from the Company as
principal, in which case such purchase shall be made in accordance with the
terms of a separate agreement (a "Purchase Agreement") to be entered into
between such Agent and the Company in the form attached hereto as Exhibit C. A
Purchase Agreement, to the extent set forth therein, may incorporate by
reference specified provisions of this Agreement.
SECTION 12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Agents shall be directed to them as follows:
notices to the Company shall be directed to it as follows: Aristar, Inc., 0000
Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxx X. Xxxxxxxxx.
SECTION 13. Binding Effect; Benefits. This Agreement shall be
binding upon each Agent, 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 Section 7 hereof shall also be deemed to be for the benefit of any
Participant and the person or persons, if any, who control any Agent or any
Participant within the meaning of Section 15 of the Act, and (b) the indemnity
agreement of the Agents contained in Section 7 hereof shall be deemed to be for
the benefit of directors of the
-17-
18
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 Section, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
SECTION 14. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in counterparts and the executed counterparts shall
together constitute a single instrument.
-18-
19
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
ARISTAR, INC.
By______________________________________
Title
CONFIRMED AND ACCEPTED,
as of the date first
above written:
By______________________________
Title
By______________________________
Title
-19-
20
EXHIBIT A
Aristar, Inc.
Medium-Term Notes, Series ____
Schedule of Payments
The Company agrees to pay each Agent a commission equal to the
following percentage of the aggregate dollar equivalent of the principal amount
of Notes:
Term Commission Rate
---- ---------------
21
EXHIBIT B
Administrative Procedures
22
EXHIBIT C
PURCHASE AGREEMENT
---------- --, ----
Aristar, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Senior Vice President - Finance
The undersigned agrees to purchase the following principal
amount of the Notes described in the Agency Agreement dated __________ __, 1997
(as it may be supplemented or amended from time to time, the "Agency
Agreement"):
Principal Amount: $______________________
Maturity Date: _______________________
Interest Rate: ___%
Discount: ___% of Principal Amount
Aggregate price to be
paid to Company
(in immediately
available funds): $______________________
Settlement Date: _______________________
Other Terms: _______________________
Unless otherwise defined herein, terms used in this Purchase Agreement with
initial capital letters which are defined in the Agency Agreement are used
herein as so defined.
Our obligation to purchase Notes hereunder is subject to the
continued accuracy in all material respects of your representations and
warranties contained in the Agency Agreement and to your performance and
observance in all material respects of all applicable covenants and agreements
contained therein, including, without limitation, your obligations pursuant to
Section 7 thereof. Our obligation hereunder is subject to the further conditions
that (i) we shall receive (a) the opinions required to be delivered pursuant to
Section 5(b) and 5(c) of the Agency Agreement, (b) the certificate required to
be delivered pursuant to Section 5(f) thereof, and (c) the letter of Price
Waterhouse LLP required to be delivered pursuant to Section 5(g) thereof, in
each case dated as of the above Settlement Date, and (ii) between the date
hereof and the Settlement Date, none of the following events shall have
occurred: (a) trading in
23
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 Standard & Poor's Corporation or Xxxxx'x Investors
Services, Inc. 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, or (e) any material adverse
change in the financial condition or results of operations of the Company and
its Subsidiaries taken as a whole. In the event our obligations hereunder are
terminated because of any of the foregoing, no party shall have any liability
hereunder to the other party hereto, except as provided in Sections 4, 7 and 13
of the Agency Agreement. You agree that we may select Participants to
participate in the distribution of the Notes which are the subject of this
Purchase Agreement without your consent and without giving you prior notice
thereof.
In further consideration of our agreement hereunder, you agree
that between the date hereof and the above Settlement Date, without our prior
written consent, you will not offer or sell, or enter into any agreement to
sell, any debt securities of the Company, other than borrowings under your
revolving credit agreements and lines of credit, the private placement of
securities, issuances of your commercial paper and borrowings from Great Western
Financial Corporation or any affiliate thereof.
-2-
24
This Agreement shall be governed by and construed in
accordance with the laws of New York.
_______________________
By_____________________
Title:
_______________________
By_____________________
Title:
Accepted: ____________
ARISTAR, INC.
By_____________________
Title:
-3-
