Exhibit 1
AMERICAN GENERAL FINANCE CORPORATION
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
UNDERWRITING AGREEMENT
American General Finance Corporation, an Indiana corporation (the
"Company"), proposes to issue and sell from time to time certain of its
unsecured, unsubordinated debt securities (the "Debt Securities") and/or
Warrants (the "Warrants") to purchase Debt Securities registered under the
registration statements referred to in Section 1(a) below (the Debt Securities
and Warrants shall be referred to herein, individually or together, as the
"Registered Securities"). The Debt Securities will be issued under an indenture,
dated as of May 1, 1997 (the "Indenture"), between the Company and The First
National Bank of Chicago, as Trustee (the "Trustee"). The Warrants will be
issued under one or more warrant agreements (the warrant agreement relating to
any issue of Warrants to be sold pursuant to this Underwriting Agreement (this
"Agreement") will be identified in the applicable Pricing Agreement (as
hereinafter defined) and is referred to herein as the "Warrant Agreement")
between the Company and the warrant agent identified in such Warrant Agreement
(the "Warrant Agent"). The Registered Securities will be issued in one or more
series which may vary as to aggregate principal amounts, interest rates,
maturities, sinking fund requirements, redemption provisions, selling prices,
exercise provisions and any other terms which the Indenture or any Warrant
Agreement, as the case may be, contemplates may be contained in the Registered
Securities as issued from time to time. Particular series of the Registered
Securities may be sold pursuant to a Pricing Agreement substantially in the form
set forth in Annex I hereto (the "Pricing Agreement"), subject to the terms and
conditions set forth therein and herein. The Pricing Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein. The Debt Securities and the Warrants may be offered either together or
separately.
The Registered Securities that are the subject of a particular Pricing
Agreement are referred to herein as the "Securities"; provided that the Debt
Securities issuable upon exercise of Warrants are referred to herein as "Warrant
Securities." The firm or firms named in Schedule I to the Pricing Agreement are
referred to herein as the "Underwriters," and the representative or
representatives of the Underwriters, if any, specified in the Pricing Agreement
are referred to herein as the "Representatives"; provided, however, that if the
Pricing Agreement does not specify any representative of the Underwriters, the
term "Representatives" shall mean the Underwriters.
As provided in Section 2 below, the Pricing Agreement may authorize the
Underwriters to solicit offers from certain investors to purchase Securities
from the Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"). Securities to be purchased pursuant to Delayed Delivery Contracts
are sometimes referred to herein as "Contract Securities," and Securities to be
purchased by the Underwriters (after giving effect to the deduction, if any, for
Contract Securities) are sometimes referred to herein as "Underwriters'
Securities."
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
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(a) Registration statements (No. 33-57910 and No. 333- ) on Form
S-3 relating to the Registered Securities, including the Securities, and
all post-effective amendments thereto required to the date of the
Pricing Agreement, have been filed with the Securities and Exchange
Commission (the "Commission") in the form heretofore delivered or to be
delivered to the Representatives (and, excluding exhibits to such
registration statements, but including all documents incorporated by
reference in the prospectus contained therein on or prior to the date of
the Pricing Agreement, to the Representatives for each of the other
Underwriters) and such registration statements and each such amendment
thereto, if any, have been declared effective by the Commission and no
stop order suspending the effectiveness thereof has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission. For purposes of this Agreement, (i) until such time as $50
million aggregate principal amount of Registered Securities has been
issued and sold (or designated for issuance and sale under a medium-term
note program) by the Company pursuant to the foregoing registration
statements, the term "Registration Statement" shall mean the foregoing
registration statements, including all exhibits thereto and all
documents incorporated by reference therein as of the applicable
effective date thereof, and after such time, the term "Registration
Statement" shall mean Registration Statement No. 333- , including all
exhibits thereto and all documents incorporated by reference therein as
of the effective date thereof; and any reference to the Registration
Statement as amended (or similar wording) shall mean the Registration
Statement, including all post-effective amendments thereto and all
documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the applicable effective date of the
Registration Statement and that are deemed to be incorporated by
reference in the Registration Statement upon the filing of such
documents with the Commission and the information, if any, deemed to be
a part thereof pursuant to Rule 434 under the Securities Act of 1933, as
amended (the "Act"); (ii) the term "Prospectus" shall mean the
prospectus, including all documents incorporated by reference therein as
of the date thereof, relating to the Registered Securities in the form
included in Registration Statement No. 333- as of the effective date
thereof or, if different, in the form in which it has most recently been
filed or transmitted for filing with the Commission on or prior to the
date of the Pricing Agreement, as amended or supplemented to reflect the
terms of the offering of the Securities by (A) if the Company elects not
to rely on Rule 434 under the Act, the Prospectus Supplement
contemplated by Section 3(a) hereof, in the form in which such
Prospectus Supplement is filed with the Commission pursuant to Rule
424(b) under the Act, in accordance with Section 3(a) hereof or (B) if
the Company elects to rely on Rule 434 under the Act, the Term Sheet
contemplated by Section 3(a) hereof, in the form in which such Term
Sheet is filed with the Commission pursuant to Rule 424(b) (7) under the
Act in accordance with Section 3(a) hereof (and, in such case, the term
"Prospectus" shall include such Term Sheet and the Rule 434(c) (2)
Prospectus referred to in Section 3(a), if any, each individually and
taken together); any reference to the date of the Prospectus shall be
deemed to refer to the date of such Prospectus Supplement or Term Sheet,
as the case may be, and any reference to the Prospectus as amended or
supplemented (or similar wording) shall mean the Prospectus, including
all supplements thereto and all documents filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the date of the Prospectus and that are deemed to be
incorporated by reference in the Prospectus upon the filing of such
documents with the Commission; and (iii) the term
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"Preliminary Prospectus" shall mean any preliminary prospectus,
including all documents incorporated by reference therein as of the date
thereof, included in Registration Statement No. 333- prior to the
effectiveness thereof or filed with the Commission pursuant to Rule
424(a) under the Act; and any reference to any Preliminary Prospectus as
amended or supplemented (or similar wording) shall mean such Preliminary
Prospectus, including all documents filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the date of such Preliminary Prospectus and that are deemed to
be incorporated by reference in the Preliminary Prospectus upon the
filing of such documents with the Commission. If the Company files a
registration statement to register a portion of the Securities and
relies on Rule 462(b) under the Act for such registration statement to
become effective upon filing with the Commission (the "Rule 462(b)
Registration Statement"), then any reference to "Registration Statement"
herein shall be deemed to be to both Registration Statement No. 333-
(the "original Registration Statement") and the Rule 462(b) Registration
Statement, as each such registration statement may be amended pursuant
to the Act;
(b) The documents incorporated by reference in the Prospectus, as
amended or supplemented, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange
Act and the rules and regulations of the Commission thereunder, and,
when read together with the other information included or incorporated
by reference in the Prospectus at the time the Registration Statement
became effective, at the time any post-effective amendment thereto
became effective and at the time any annual report on Form 10-K was
filed by the Company and incorporated by reference into the Prospectus,
none of such documents 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; and any further
documents so filed during the period during which delivery of a
prospectus is required in connection with the offering or sale of the
Securities, and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and, when read together with
the other information included or incorporated by reference in the
Prospectus at the time such documents are filed with the Commission,
none of such documents will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of an
Underwriter through the Representatives expressly for use in the
Prospectus;
(c) The Registration Statement, as amended, and the Prospectus,
as amended, conform, and any amendments or supplements thereto filed
during the period during which delivery of a prospectus is required in
connection with the offering or sale of the Securities will conform, in
all material respects to the applicable requirements of the Act, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder. The Registration
Statement, as amended, and the Prospectus, as amended or supplemented,
each as of the effective date of the Registration Statement, as of the
effective date of each post-effective amendment to the Registration
Statement, if any, and at the time any annual report on Form 10-K was
filed by the Company and incorporated
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by reference into the Prospectus, did not, as of the date of the Pricing
Agreement do not, and as of the Time of Delivery (as hereinafter
defined) and during the period during which delivery of a prospectus is
required in connection with the offering and sale of the Securities,
will 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; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of an Underwriter
through the Representatives expressly for use in the Prospectus, or to
the Statement of Eligibility on Form T-1 (the "Form T-1"), except as to
statements or omissions in such Form T-1 made in reliance upon
information furnished in writing to the Trustee by or on behalf of the
Company for use therein;
(d) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the business, financial
condition, or results of operations of the Company and its subsidiaries
taken as a whole, other than as set forth or contemplated in the
Prospectus as amended or supplemented, whether or not arising in the
ordinary course of business;
(e) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Indiana with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases substantial properties, or conducts business, and where the
failure so to qualify and be in good standing would have a material
adverse effect on the business of the Company and its subsidiaries taken
as a whole; each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, has corporate power
and authority to own or lease its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
substantial properties, or conducts business, and where the failure so
to qualify and be in good standing would have a material adverse effect
on the business of the Company and its subsidiaries taken as a whole;
and the Company and each of its subsidiaries have all required
authorizations, approvals, orders, licenses, certificates and permits of
and from all governmental regulatory officials and bodies (including,
without limitation, each insurance regulatory authority having
jurisdiction over the Company or any insurance subsidiary of the
Company) to own or lease its properties and conduct its business as
described in the Prospectus, except such authorizations, approvals,
orders, licenses, certificates and permits which, if not obtained, would
not have a material adverse effect on the business of the Company and
its subsidiaries taken as a whole, and neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such authorization, approval, order,
license, certificate or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially
adversely affect the business of the Company and its subsidiaries taken
as a whole;
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(f) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable, and (except for any directors' qualifying
shares) are owned, directly or indirectly, by the Company, free and
clear of all liens and encumbrances;
(g) The Securities have been duly authorized (or will have been
so authorized prior to their issuance) and, when executed and
authenticated pursuant to the Indenture or Warrant Agreement, as the
case may be, pursuant to which the Securities are being issued, and
issued and delivered against payment therefor pursuant to this Agreement
and the Pricing Agreement (or, in the case of any Contract Securities,
pursuant to the Delayed Delivery Contracts with respect thereto), will
be duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture or Warrant Agreement, as the
case may be, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Indenture or Warrant Agreement, as the case may be,
pursuant to which the Securities are being issued, has been duly
authorized, executed and delivered by the Company, and constitutes a
valid and legally binding instrument of the Company, enforceable against
the Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; the Indenture has been duly qualified
under the Trust Indenture Act; and the Securities and the Indenture or
Warrant Agreement, as the case may be, conform in all material respects
with the descriptions thereof in the Prospectus;
(h) The Warrant Securities, if any, have been duly authorized (or
will have been so authorized prior to issuance of the Warrants relating
thereto) for issuance and sale upon the exercise of the Warrants, and,
when executed and authenticated pursuant to the terms and provisions of
the Indenture and issued and delivered against payment of the exercise
price in accordance with the terms of the Warrant Agreement, will be
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company enforceable against
the Company in accordance with their terms and entitled to the benefits
of the Indenture, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Warrant Securities, if any, will conform in
all material respects with the description thereof in the Prospectus;
(i) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been (or will be prior to the Time of Delivery) duly authorized by the
Company and, when executed and delivered by the Company and the
purchaser named therein, will constitute a valid and legally binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and such Delayed Delivery Contracts will conform in all
material respects to the description thereof in the Prospectus;
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(j) The issue and sale of the Securities and Warrant Securities,
if any, the compliance by the Company with all of the provisions of the
Securities and Warrant Securities, if any, the Indenture, the Warrant
Agreement, if any, each of the Delayed Delivery Contracts, if any, this
Agreement and the Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not (i) conflict with
or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument for money borrowed to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
or (ii) result in any violation of (x) the provisions of the Restated
Articles of Incorporation, as amended, or the Amended and Restated
By-Laws of the Company or (y) to the best knowledge of the Company, any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, in any manner which, in the
case of clauses (i) and (ii)(y), would have a material adverse effect on
the business of the Company and its subsidiaries taken as a whole; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities or Warrant
Securities, if any, or the consummation by the Company of the other
transactions contemplated by this Agreement, the Pricing Agreement, the
Indenture, the Warrant Agreement, if any, or any Delayed Delivery
Contract, except such as have been, or will have been prior to the Time
of Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under "blue sky" or state securities laws or insurance
laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(k) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is subject which, individually
or in the aggregate, are expected to have a material adverse effect on
the business, financial condition, or results of operations of the
Company and its subsidiaries taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others; and
(l) The Company is not, and, after giving effect to the issue and
sale of the Securities and Warrant Securities, if any, will not be, an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act").
SECTION 2. PURCHASE AND OFFERING OF SECURITIES. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Securities specified therein. The Pricing
Agreement shall specify the aggregate principal amount (in the case of Debt
Securities) or the number (in the case of Warrants) of the Securities, the
initial public offering price of such Securities, the purchase price to the
Underwriters of such Securities, the names of the Underwriters of such
Securities (subject to substitution as provided by Section 7 herein), the names
of the Representatives of such Underwriters, the principal amount or number of
such Securities to be purchased by each Underwriter and whether any of such
Securities shall be covered by Delayed
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Delivery Contracts and the commission payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such
Securities and payment therefor. The Pricing Agreement shall also specify (to
the extent not set forth in the Indenture or Warrant Agreement, as the case may
be, pursuant to which the Securities are being issued, and the Registration
Statement and Prospectus) the terms of such Securities. The Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and the
Pricing Agreement shall be several and not joint. Upon the execution of the
Pricing Agreement and authorization by the Representatives of the release of the
Underwriters' Securities, the several Underwriters propose to offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus.
Underwriters' Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement, in definitive form to the extent practicable, and in such
authorized denominations and registered in such names as the Representatives may
request upon at least twenty-four hours prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor, by certified or official bank check or checks, payable
to the order of the Company or by wire transfer to a bank account specified by
the Company, in the funds specified in the Pricing Agreement, all at the place
and time and date specified in the Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for the
Underwriters' Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement in the amount of any compensation payable by the Company to
the Underwriters in respect of any Delayed Delivery Contracts as provided in
this Section and in the Pricing Agreement.
The Company may specify in Schedule II to the Pricing Agreement that the
Underwriters are authorized to solicit offers to purchase Securities from the
Company pursuant to Delayed Delivery Contracts, substantially in the form of
Annex III attached hereto but with such changes therein as the Representatives
and the Company may authorize or approve. If so specified, the Underwriters will
endeavor to make such arrangements, and as compensation therefor the Company
will pay to the Representatives, for the accounts of the Underwriters, at the
Time of Delivery such commission, if any, as may be set forth in the Pricing
Agreement. Delayed Delivery Contracts, if any, are to be with investors of the
types described in the Prospectus and subject to other conditions therein set
forth. The Underwriters will not have any responsibility in respect of the
validity or performance of any Delayed Delivery Contracts.
The principal amount (in the case of Debt Securities) or number (in the
case of Warrants) of Contract Securities to be deducted from the principal
amount or number of Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement shall be equal to the principal amount or
number of Contract Securities which the Company has been advised by the
Representatives have been attributed to such Underwriter, provided that, if the
Company has not been so advised, the amount or number of Contract Securities to
be so deducted shall be, in each case, that
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proportion of Contract Securities which the principal amount or number of
Securities to be purchased by such Underwriter under the Pricing Agreement bears
to the total principal amount or number of the Securities (rounded as the
Representatives may determine). The total principal amount or number of
Underwriters' Securities to be purchased by all the Underwriters pursuant to the
Pricing Agreement shall be the total principal amount or number of Securities
set forth in Schedule I to the Pricing Agreement less the principal amount or
number of the Contract Securities. The Company will deliver to the
Representatives not later than 3:30 p.m., New York City time, on the second
business day preceding the Time of Delivery (or such other time and date as the
Representatives and the Company may agree upon in writing) a written notice
setting forth the names of the investors with which the making of Delayed
Delivery Contracts has been approved by the Company and the principal amount or
number of Contract Securities to be covered by each such Delayed Delivery
Contract.
SECTION 3. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with
each of the Underwriters:
(a) Immediately following the execution of the Pricing Agreement,
to prepare (i) if the Company elects not to rely on Rule 434 under the
Act, an amendment or supplement to the prospectus related to the
Registered Securities to reflect the terms of the offering of the
Securities (the "Prospectus Supplement") in a form reasonably approved
by the Representatives, and to file the Prospectus Supplement pursuant
to Rule 424(b) (2) or (5) under the Act by 3:00 p.m., New York City
time, on the business day immediately succeeding the date of the Pricing
Agreement (or such other time as shall be specified in the Pricing
Agreement), or (ii) if the Company elects to rely on Rule 434 under the
Act, (A) an abbreviated term sheet relating to the Securities (the "Term
Sheet") that complies with the requirements of Rule 434(c) (3) and (e)
under the Act in a form reasonably approved by the Representatives, and
(B) if required by Rule 434(c) (2) under the Act, a form of Prospectus
relating to the Securities (the "Rule 434(c) (2) Prospectus") complying
with Rule 434(c) (2) under the Act in a form reasonably approved by the
Representatives, and to file such Term Sheet pursuant to Rule 424(b) (7)
under the Act, and any such Rule 434(c) (2) Prospectus pursuant to Rule
424(b) under the Act, in each case by 3:00 p.m., New York City time, on
the business day immediately succeeding the date of the Pricing
Agreement (or such other time as shall be specified in the Pricing
Agreement); except as otherwise required by law, to make no amendment or
supplement to the Registration Statement or Prospectus after the date of
the Pricing Agreement and prior to the Time of Delivery which shall be
reasonably disapproved by the Representatives promptly after reasonable
notice thereof; for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities, to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, and to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus (other than any supplement or amendment to the Prospectus
relating exclusively to a series of Registered Securities other than the
Securities) has been filed or transmitted for filing with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any request
by the
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Commission for the amending or supplementing of the Registration
Statement or Prospectus (other than any supplement or amendment to the
Prospectus relating exclusively to a series of Registered Securities
other than the Securities) or for additional information; and, in the
event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities and any
Warrant Securities for offering and sale under the securities and
insurance laws of such jurisdictions as the Representatives may
reasonably request and to comply with such laws to the extent necessary
to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities; provided, however, that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to file a general consent to service of process
in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in
such quantities as the Representatives may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities and if at such
time any event shall have occurred or condition exist as a result of
which the Prospectus, as it may then be amended or supplemented, would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period, in the opinion of the
Representatives or the Company, to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives of such event,
condition, filing, amendment or supplement and upon the Representatives'
request to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon
as practicable, but in any event not later than 90 days following the
close of the period covered thereby, an earnings statement, covering a
twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined
in Rule 158 under the Act) of the Registration Statement, of the Company
and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement and continuing to and including the Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company (except for any debt securities issued upon
exercise of outstanding warrants, if any, and except that the Company
shall have the
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right to close during such period the sale of any debt securities under
its medium-term note programs that it had agreed to sell on or before
the date of the Pricing Agreement and of which it had informed the
Representatives prior to their execution of the Pricing Agreement)
having an original maturity of more than one year after such Time of
Delivery, or any warrants for the purchase of any such debt securities
of the Company, without the prior consent of the Representatives; and
(f) The Company shall file in a timely manner all documents
required to be filed with the Commission pursuant to Sections 13 and 14
of the Exchange Act.
SECTION 4. PAYMENT OF EXPENSES. The Company agrees to pay or cause to be
paid the following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Registered
Securities and any Warrant Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Pricing Agreement, the Indenture, any
Warrant Agreement, any Delayed Delivery Contracts, any Blue Sky and Legal
Investment Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Registered Securities and any Warrant
Securities; (iii) all expenses in connection with the qualification of the
Registered Securities and any Warrant Securities for offering and sale under
state securities laws as provided in Section 3(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities and any Warrant Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities and any Warrant Securities; (vi) the cost of
preparing the Securities and any Warrant Securities; (vii) the fees and expenses
of the Trustee and any agent of the Trustee and of any Warrant Agent and any
agent of any Warrant Agent; and (viii) all other costs and expenses incident to
the performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this Section 4.
It is understood, however, that, except as provided in this Section 4, Section 6
and Section 8 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees and disbursements of their own counsel, transfer
taxes on resale of any of the Securities or Warrant Securities by them, and any
advertising expenses connected with any offers they may make.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters under the Pricing Agreement shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties of the Company in or incorporated by reference in the Pricing
Agreement are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus Supplement or, if the Company shall have
elected to rely on Rule 434 under the Act, the Term Sheet and any Rule
434 (c) (2) Prospectus required by Rule 434 (c) (2) under the Act, shall
have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed therefor by Section 3(a) hereof; no
stop order
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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; and all requests for additional
information on the part of the Commission shall have been complied with
to the Representatives' reasonable satisfaction;
(b) ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters (or such other
counsel as shall be indicated in the Pricing Agreement), shall have
furnished to the Representatives such opinion or opinions, dated the
Time of Delivery, with respect to the due and valid authorization,
execution and delivery of the Indenture, the Warrant Agreement, if any,
the Securities and the Delayed Delivery Contracts, if any, and the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters (in rendering such opinion or
opinions, ▇▇▇▇▇ & Wood LLP may rely as to matters of Indiana Law upon
the opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or other counsel licensed to practice
in the State of Indiana) and of the General Counsel (or Associate
General Counsel) of the Company referred to in subsections 5(c) and
5(d), respectively);
(c) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company (or such other
counsel as shall be indicated in the Pricing Agreement), shall have
furnished to the Representatives their written opinion, dated the Time
of Delivery, in form and substance satisfactory to the Representatives,
to the effect that:
(i) The Company is a corporation duly incorporated and
validly existing under the laws of the State of Indiana, with
corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) The Pricing Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
(iii) The Indenture or Warrant Agreement, as the case may
be, pursuant to which the Securities are being issued has been
duly authorized, executed and delivered by the Company and
(assuming the Indenture or Warrant Agreement, as the case may be,
has been duly authorized, executed and delivered by the Trustee
or Warrant Agent, as applicable) constitutes a valid and legally
binding instrument of the Company, enforceable against the
Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Indenture
has been duly qualified under the Trust Indenture Act; and the
Indenture or Warrant Agreement, as the case may be, conforms in
all material respects to the description thereof in the
Prospectus;
(iv) The Securities have been duly authorized and, when
executed and authenticated pursuant to the Indenture or Warrant
Agreement, as the case may be, pursuant to which the Securities
are being issued, and issued and delivered against payment
therefor pursuant to this Agreement and the Pricing Agreement
(or, in the
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case of any Contract Securities, pursuant to the Delayed Delivery
Contracts with respect thereto), will be duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company enforceable against
the Company in accordance with their terms and entitled to the
benefits of the Indenture or Warrant Agreement, as the case may
be, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Securities are in the form
authorized in or pursuant to the Indenture or Warrant Agreement,
as the case may be, pursuant to which the Securities are being
issued and conform in all material respects to the description
thereof in the Prospectus;
(v) The Warrant Securities, if any, have been duly
authorized for issuance and sale upon the exercise of the
Warrants, and, when executed and authenticated pursuant to the
terms and provisions of the Indenture and issued and delivered
against payment of the exercise price in accordance with the
terms of the Warrant Agreement, will be duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company enforceable against
the Company in accordance with their terms and entitled to the
benefits of the Indenture, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights
and to general equity principles; and the form of Warrant
Securities, if any, conforms in all material respects to the
description thereof in the Prospectus;
(vi) The Registration Statement is effective under the Act
and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been
instituted or threatened by the Commission;
(vii) The Registration Statement, at the time it became
effective, and as amended or supplemented as of the date of the
Pricing Agreement (or, if the Company shall have elected to rely
on Rule 434 under the Act, as of the time the Term Sheet was
filed with the Commission pursuant to Rule 424(b) (7) under the
Act) (other than the financial statements and other financial
information included therein or the Form T-1, as to which no
opinion or belief need be expressed), appeared on its face to be
appropriately responsive in all material respects to the
applicable requirements of the Act, the Trust Indenture Act and
the respective rules and regulations of the Commission
thereunder; and
(viii) The Company is not, and, after giving effect to the
issue and sale of the Securities and Warrant Securities, if any,
will not be, an "investment company" as such term is defined in
the Investment Company Act.
In addition, such opinion shall also contain a statement
that no facts have come to such counsel's attention that lead
them to believe that the Registration Statement, at the time it
became effective, or if an amendment to the Registration
Statement or an annual report on Form 10-K has been filed by the
Company with the
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Commission subsequent to the effectiveness of the Registration
Statement, then at the time the most recent such amendment became
effective or the most recent such Form 10-K was filed, as the
case may be, and as of the date of the Pricing Agreement,
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 amended or supplemented to reflect the terms of the
offering of the Securities by the Prospectus Supplement or Term
Sheet, as the case may be, and as amended or supplemented at the
Time of Delivery, contains an untrue statement of a material fact
or omits 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) The General Counsel of the Company or, in his absence, the
Associate General Counsel of the Company, shall have furnished to the
Representatives his written opinion, dated the Time of Delivery, in form
and substance satisfactory to the Representatives, to the effect that:
(i) Each of the subsidiaries of the Company has been duly
incorporated and is validly existing as a business corporation or
an insurer, as the case may be, in good standing under the laws
of its jurisdiction of incorporation, provided, however, that
"good standing" means with respect to any corporation
incorporated under the laws of the State of Indiana that such
corporation has filed its most recent annual report required by
the laws of the State of Indiana and Articles of Dissolution have
not been filed in the State of Indiana with respect to such
corporation; to the knowledge of such counsel, the Company and
each of its subsidiaries has been duly qualified as a foreign
corporation for the transaction of business or licensed to
transact business as an insurance company, as the case may be,
and is in good standing under the laws of each other jurisdiction
in which it owns or leases substantial properties, or conducts
business, and where the failure so to qualify would have a
material adverse effect on the business of the Company and its
subsidiaries taken as a whole; all of the outstanding shares of
capital stock of each such subsidiary have been duly authorized
and validly issued, are fully paid and non-assessable, and
(except for any directors' qualifying shares) are owned, directly
or indirectly, by the Company, free and clear of all liens and
encumbrances; and, to the knowledge of such counsel, the Company
and each of its subsidiaries has all required authorizations,
approvals, orders, licenses, certificates and permits of and from
all governmental regulatory officials and bodies (including,
without limitation, each insurance regulatory authority having
jurisdiction over the Company or any insurance subsidiary of the
Company) to own or lease its properties and to conduct its
business as described in the Prospectus, except such
authorizations, approvals, orders, licenses, certificates and
permits which, if not obtained, would not have a material adverse
effect on the business of the Company and its subsidiaries taken
as a whole (such counsel being entitled to rely in respect of the
opinion in this clause (i) upon opinions (in form and substance
reasonably satisfactory to the Representatives) of local counsel
and of counsel for the subsidiaries, such counsel being
acceptable to counsel for the Underwriters, copies of which shall
be furnished to the Representatives; and in respect of matters of
fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel
-13-
shall state that he believes that he is justified in relying
upon such opinions and certificates);
(ii) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened of a character
that are required to be disclosed in the Registration Statement
and Prospectus, other than as disclosed therein; to the knowledge
of such counsel, there are no contracts, indentures, mortgages,
deeds of trust, loan agreements or other documents of a character
required to be described in the Registration Statement or
Prospectus (or required to be filed under the Exchange Act if
upon such filing they would be incorporated by reference therein)
or to be filed as exhibits to the Registration Statement that are
not described and filed as required;
(iii) The issue and sale of the Securities and Warrant
Securities, if any, the compliance by the Company with all of the
provisions of the Securities, the Warrant Securities, if any, the
Indenture, the Warrant Agreement, if any, each of the Delayed
Delivery Contracts, if any, this Agreement and the Pricing
Agreement, and the consummation of the transactions herein and
therein contemplated will not (A) conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument for money borrowed to
which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its
subsidiaries is subject, or (B) result in any violation of (x)
the provisions of the Restated Articles of Incorporation, as
amended, or the Amended and Restated By-Laws of the Company or
(y) any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any
of their properties, in any manner which, in the case of clauses
(A) and (B)(y), would have a material adverse effect on the
business of the Company and its subsidiaries taken as a whole
(such counsel being entitled to rely in respect of the opinion in
this clause (iii) with respect to subsidiaries upon opinions (in
form and substance reasonably satisfactory to the
Representatives) of counsel for the subsidiaries, such counsel
being acceptable to counsel for the Underwriters, copies of which
shall be furnished to the Representatives, provided that such
counsel shall state that he believes that he is justified in
relying upon such opinions); and
(iv) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the Warrant Securities, if any, or the
consummation by the Company of the other transactions
contemplated by this Agreement, the Pricing Agreement, the
Indenture, the Warrant Agreement, if any, or any Delayed Delivery
Contract, except such as may be required under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under "blue
sky" or state securities laws or insurance laws in connection
with the purchase and distribution of the Securities by the
Underwriters.
(e) At the Time of Delivery, the independent certified public
accountants who have audited the consolidated financial statements of
the Company and its subsidiaries
-14-
included or incorporated by reference in the Registration Statement
shall have furnished to the Representatives a letter or letters dated
such Time of Delivery, with respect to such consolidated financial
statements, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex II hereto;
(f) Since the date of the Pricing Agreement and since the
respective dates as of which information is given in the Prospectus,
there shall have been no material adverse change, nor any development or
event involving a prospective material adverse change, in the business,
financial condition, or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, the effect of which is, in the reasonable judgment
of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Underwriters' Securities on the terms and in the manner
contemplated in the Prospectus;
(g) Subsequent to the date of the Pricing Agreement, no
downgrading shall have occurred in the rating accorded the Company's
long-term debt securities by either ▇▇▇▇▇'▇ Investors Service, Inc. or
Standard & Poor's Ratings Services;
(h) Subsequent to the date of the Pricing Agreement, there shall
not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange or any other exchange on which application shall have been made
to list the Securities; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities; or (iii) the engagement by the United States in hostilities
which have resulted in the declaration of a national emergency or war on
or after the date of such Pricing Agreement, if the effect of any such
event specified in this subsection 5(h), in the reasonable judgment of
the Representatives, makes it impracticable to proceed with the public
offering or the delivery of the Underwriters' Securities on the terms
and in the manner contemplated in the Prospectus; and
(i) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery, a certificate or
certificates of the Company signed by the Chairman, the President or a
Vice President as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, and as to the matters
set forth in the first two clauses of subsection 5(a) and in subsection
5(f).
SECTION 6. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, as
incurred, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and
-15-
will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating, preparing for or defending against any such action or
claim, commenced or threatened; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives expressly for use
therein; and provided, further, that the Company shall not be liable to
any Underwriter under the indemnity agreement in this subsection (a)
with respect to any Preliminary Prospectus to the extent that any such
loss, claim, damage or liability of such Underwriter results from the
fact that such Underwriter sold Underwriters' Securities to a person to
whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference therein) in
any case where such delivery is required by the Act if the Company has
previously furnished copies thereof to such Underwriter and the loss,
claim, damage or liability of such Underwriter results from an untrue
statement or omission or alleged untrue statement or omission of a
material fact contained in the Preliminary Prospectus which was
corrected in the Prospectus (or the Prospectus as amended or
supplemented).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities, as incurred, to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating,
preparing for or defending against any such action or claim, commenced
or threatened.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement or threat of
any action, such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement or threat
thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be
commenced or threatened against any indemnified party and it shall
notify the indemnifying party of the commencement or threat thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish and so elect within a reasonable time
-16-
after receipt of such notification, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party
and it being understood that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (provided that
local counsel may be retained to the extent necessary) for all such
indemnified parties (treating the indemnified party and the persons
referred to in subsection (e) below to which the provisions of this
Section 6 shall extend as a single indemnified party for such purpose)),
and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection for
any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. Whether or
not the indemnifying party elects to assume the defense of any action
commenced or threatened in accordance with this subsection (c), the
indemnifying party shall not be liable for any settlement of such action
effected by the indemnified party unless such settlement is effected
with the prior written consent of the indemnifying party.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other hand
from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above or is not entitled to receive the
indemnification provided for in subsection (a) above because of the
second proviso thereof, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters
on the other hand in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters
on the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission, including, with respect to any Underwriter, the extent to
which such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to any Preliminary Prospectus result from the fact
that such Underwriter sold Underwriters' Securities to a person to whom
there was not sent or given, at or prior to the written
-17-
confirmation of such sale, a copy of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) in any case
where such delivery is required by the Act, if the Company has
previously furnished copies thereof to such Underwriter and the loss,
claim, damage or liability results from an untrue statement or omission
or alleged untrue statement or omission of a material fact contained in
the Preliminary Prospectus which was corrected in the Prospectus (or the
Prospectus as amended or supplemented). The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating, preparing for or defending against any such action
or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the 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 been required
to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to the Securities and
not joint.
(e) The obligations of the Company under this Section 6 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 6 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
SECTION 7. DEFAULT OF UNDERWRITERS.
(a) If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase
under the Pricing Agreement, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase
such Underwriters' Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters'
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Underwriters'
Securities on such terms. In the event that, within the respective
prescribed periods, the Representatives notify the Company that they
have so arranged for the purchase of such Underwriters' Securities, or
the Company notifies the Representatives that it has so arranged for the
purchase of such Underwriters' Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for
-18-
such Underwriters' Securities for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement and the Pricing Agreement shall
include any person substituted under this Section with like effect as if
such person had originally been a party to the Pricing Agreement.
(b) If, after giving effect to any arrangements for the purchase
of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate amount of such Underwriters'
Securities which remains unpurchased does not exceed ten percent of the
aggregate amount of the Securities, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the amount
of Underwriters' Securities which such Underwriter agreed to purchase
under the Pricing Agreement and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
amount of the Securities which such Underwriter agreed to purchase under
the Pricing Agreement) of the Underwriters' Securities of such
defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default. The respective commitments of the
Underwriters for purposes of this Section shall be determined without
regard to reduction in the respective Underwriters' obligations to
purchase the amounts of the Securities set forth opposite their names in
Schedule I to the Pricing Agreement as a result of Delayed Delivery
Contracts, if any, entered into by the Company.
(c) If, after giving effect to any arrangements for the purchase
of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate amount of Underwriters' Securities
which remains unpurchased exceeds ten percent of the aggregate amount of
the Securities as determined as set forth in subsection (b) above, or if
the Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Underwriters'
Securities of a defaulting Underwriter or Underwriters, then the Pricing
Agreement shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section 4
hereof and the indemnity and contribution agreements in Section 6
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(d) As used in this Section 7 only, "aggregate amount" refers to
the aggregate principal amount of any Debt Securities and the public
offering price of any Warrants.
SECTION 8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person
-19-
of any Underwriter, or the Company, or any officer or director or controlling
person of the Company, and shall survive delivery of and payment for the
Securities. If the Pricing Agreement shall be terminated pursuant to Section 7
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Section 4 and Section 6 hereof; but, if for any other
reason Underwriters' Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Underwriters'
Securities, but the Company shall then be under no further liability to any
Underwriter with respect to the Securities except as provided in Section 4 and
Section 6 hereof.
SECTION 9. PARTIES AND NOTICES.
(a) In all dealings hereunder, the Representatives shall act on behalf
of each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement; and
(b) All statements, requests, notices and agreements hereunder shall be
in writing, or by telegram or facsimile transmission if promptly confirmed in
writing, and if to the Underwriters shall be sufficient in all respects if
delivered or sent by registered mail to the Representatives, as such, at the
address of the Representatives designated for such purpose as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Company set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 6(c) hereof shall be delivered or
sent by registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request.
SECTION 10. SUCCESSORS. This Agreement and the Pricing Agreement shall
be binding upon, and inure solely to the benefit of the Underwriters, the
Company and, to the extent provided in Section 6 and Section 8 hereof, the
officers and directors of the Company and each person who controls the Company
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or the Pricing Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
SECTION 11. GOVERNING LAW. This Agreement and the Pricing Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York applicable to agreements made and to be performed in such State.
SECTION 12. COUNTERPARTS. The Pricing Agreement may be executed by any
one or more of the parties thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
-20-
ANNEX I
PRICING AGREEMENT
[Name of Representatives]
[Name of Co-Representative(s)]
As representatives of the several
Underwriters named in Schedule I hereto
[c/o Representatives]
[Address of Representative]
............, 19...
Dear Sirs:
American General Finance Corporation, an Indiana corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (No. 333-_____) and attached hereto (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the [debt securities (the "Debt Securities")] [and]
[warrants to purchase debt securities (the "Warrants")] specified in Schedule II
hereto ([such Debt Securities and Warrants being collectively referred to as]
the "Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Pricing Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of each of the Underwriters pursuant to Section 9 of
the Underwriting Agreement and the address of the Representatives referred to in
such Section 9 are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the [principal amount of Debt Securities] [and] [number of Warrants] set forth
opposite the name of such Underwriter in Schedule I hereto, [less the [principal
amount of Debt Securities] [and] [number of Warrants] covered by Delayed
Delivery Contracts, if any, as may be specified in such Schedule II].
If the foregoing is in accordance with your understanding, please sign
and return to us _____________ counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting
-1-
Agreement incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Company.
Very truly yours,
AMERICAN GENERAL FINANCE CORPORATION
By: ________________________________
(Title)
Accepted as of the date hereof:
[Name of Representative Corporation
By: _________________________________]
(Title)
[Name of Representative Partnership
______________________________________
(Name of Representative Partnership)]
On behalf of each of the Underwriters
-2-
SCHEDULE I
[Principal Amount of [Number of
Debt Securities to be Warrants to
Underwriter Purchased Be Purchased
----------- --------- ------------
[Name of Representatives] ......... $
[Names of other Underwriters] .....
Total ....................... $ ] ]
======== =======
-3-
SCHEDULE II
[IF SECURITIES INCLUDE DEBT SECURITIES, INSERT --
TITLE OF DEBT
SECURITIES: [_____%] [Floating Rate] [Zero Coupon]
[Notes] [Debentures] due
FORM OF DEBT SECURITIES: [Global Security-Book Entry] [Certificated]
[Bearer]
AGGREGATE PRINCIPAL
AMOUNT: $________________
PRICE TO PUBLIC: _____% of the principal amount of the Debt
Securities, plus accrued interest[, if
any,] from ________ to ___________ [and
accrued amortization, if any, from
__________ to _________]
PURCHASE PRICE BY ____% of the principal amount of the Debt
UNDERWRITERS: Securities plus accrued interest[, if any,]
from __________ to ____________ [and
accrued amortization, if any, from
___________ to __________]
METHOD OF AND SPECIFIED [By certified or official bank check or
FUNDS FOR PAYMENT OF checks, payable to the order of the Company
PURCHASE PRICE: in [New York] Clearing House funds]
[By wire transfer to a bank account
specified by the Company in next day funds]
INDENTURE: Indenture dated as of May 1, 1997 between
the Company and The First National Bank of
Chicago, as Trustee.
TIME OF DELIVERY: [Time and date], 19__.
CLOSING LOCATION:
-4-
NAMES AND ADDRESSES OF Designated Representatives:
REPRESENTATIVES:
Address for Notices, etc.:
[SECURITIES EXCHANGE: Debt Securities to be listed on the [New
York] Stock Exchange]
[FILING DATE: Time and date Prospectus Supplement and/or
Term Sheet to be filed pursuant to Rule 424
(b) [if different than provided in Section
3(a)]]
DELAYED DELIVERY: [None] [Underwriters' commission shall be
____% of the principal amount of Debt
Securities for which Delayed Delivery
Contracts have been entered into. Such
commission shall be payable to the order of
______________________________.]
MATURITY:
INTEREST RATE: [_____%] [Zero Coupon] [See Floating Rate
Provisions]
INTEREST PAYMENT DATES: [months and dates]
REDEMPTION PROVISIONS: [No provisions for redemption]
[The Debt Securities may be redeemed,
[otherwise than through the sinking fund,]
in whole or in part at the option of the
Company, in the amount of $__________ or an
integral multiple thereof, ___________]
[on or after ______________________,
_______ at the following redemption prices
(expressed in percentages of principal
amount). If [redeemed on or before
__________________, _____%, and if]
redeemed during the 12-month period
beginning ______________,
Year Redemption Price
---- ----------------
-5-
and thereafter at 100% of their principal
amount, together in each case with accrued
interest to the redemption date.]
[on any interest payment date falling on or
after _________________, ___________, at
the election of the Company, at a
redemption price equal to the principal
amount thereof, plus accrued interest to
the date of redemption.]
[Other possible redemption provisions, such
as mandatory redemption upon occurrence of
certain events or redemption for changes in
tax law]
[Restriction on refunding]
REPAYMENT PROVISIONS: [None] [Debt Securities are repayable on
________, ___ [insert date and year[s]], at
the option of the holder, at their
principal amount with accrued interest.]
SINKING FUND PROVISIONS: [No sinking fund provisions]
[The Debt Securities are entitled to the
benefit of a sinking fund to retire
$_________ principal amount of Debt
Securities on ___________ in each of the
years _____ through _____ at 100% of their
principal amount plus accrued interest] [,
together with [cumulative] [non-cumulative]
redemptions at the option of the Company to
retire an additional $_________ principal
amount of Debt Securities in the years
_____ through _____ at 100% of the
principal amount plus accrued interest.]
[IF DEBT SECURITIES ARE EXTENDIBLE SECURITIES, INSERT --
EXTENDIBLE PROVISIONS: Debt Securities are repayable on
______________, ____________ [insert date
and years], at the option of the holder at
their principal amount with accrued
interest. Initial annual interest rate will
be _____%, and thereafter annual interest
rate will be adjusted on ___________,
__________________ and _______ to a rate
not less than _____% of the effective
annual interest rate on U.S. Treasury
obligations with ___-year maturities as of
the [insert date 15 days prior to maturity
date] prior to such [insert maturity
date].]
-6-
[IF DEBT SECURITIES ARE FLOATING RATE SECURITIES, INSERT --
FLOATING RATE PROVISIONS: Initial annual interest rate will be _____%
through ______________ [and thereafter will
be adjusted [monthly] [on each
_____________, ______________,
______________ and __________] [to an
annual rate of _____% above the average
rate for _____-year [month] [securities]
[certificates of deposit] by ______________
and ______________ [insert names of
banks].] [and the annual interest rate
[thereafter] [from ____________ through
_____________] will be the interest yield
equivalent of the weekly average per annum
market discount rate for _____-month
Treasury bills plus _____% of Interest
Differential (the excess, if any, of (i)
then current weekly average per annum
secondary market yield for _____-month
certificates of deposit over (ii) then
current interest yield equivalent of the
weekly average per annum market discount
rate of _____-month Treasury bills); [from
_____________ and thereafter the rate will
be the then current interest yield
equivalent plus _____% of Interest
Differential].]
[OTHER TERMS]*:]
[IF SECURITIES INCLUDE WARRANTS, INSERT --
NUMBER OF WARRANTS TO BE ISSUED:
WARRANT AGENT:
WARRANT AGREEMENT:
-------------------------
* A description of particular tax, accounting or other unusual features
of the Debt Securities should be set forth, or referenced to an ATTACHED AND
ACCOMPANYING description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the form
in which such features will be described in the Prospectus Supplement for the
offering.
-7-
ISSUABLE JOINTLY WITH [Yes] [No]
DEBT SECURITIES:
[Number of Warrants issued with each $
principal amount of Debt Securities:]
[Detachable Date:]
DATE FROM WHICH WARRANTS
ARE EXERCISABLE:
DATE ON WHICH WARRANTS
EXPIRE:
EXERCISE PRICE:
PRICE TO PUBLIC:
PURCHASE PRICE BY
UNDERWRITERS:
METHOD OF AND SPECIFIED
FUNDS FOR PAYMENT OF
PURCHASE PRICE:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF
REPRESENTATIVES:
[SECURITIES EXCHANGE:]
DELAYED DELIVERY:
TITLE OF WARRANT SECURITIES: Principal amount of Warrant Securities
purchasable upon exercise of one Warrant:
Indenture: Indenture dated as of May 1,
1997 between the Company and The First
National Bank of Chicago as Trustee.
Maturity:
Interest Rate:
-8-
Interest Payment Dates:
Redemption Provisions:
Repayment Provisions:
Sinking Fund Provisions:
[Other Provisions:]]
-9-
ANNEX II
Pursuant to subsection 5(e) of the Underwriting Agreement, the
Underwriters shall have received from the independent certified public
accountants who have audited the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and Prospectus, one or more letters, dated as of the Time of Delivery, each of
which shall be to the effect that they are independent auditors with respect to
the Company within the meaning of the Act and the applicable published rules and
regulations thereunder and which, when read together, shall be to the further
effect that:
(i) In their opinion the consolidated financial statements audited
by them and included or incorporated by reference in the Registration
Statement and Prospectus, comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act
and the related published rules and regulations thereunder;
(ii) On the basis of performing the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement on Auditing
Standards No. 71, INTERIM FINANCIAL INFORMATION, on any unaudited
financial statements included or incorporated by reference in the
Registration Statement and Prospectus, a reading of any other unaudited
financial statement data included or incorporated by reference in the
Registration Statement and Prospectus, a reading of the latest available
interim unaudited financial statements of the Company and its
subsidiaries ("Interim Financials"), if any, a reading of any unaudited
pro forma financial statements included or incorporated by reference in
the Registration Statement and Prospectus and a reading of the minutes of
the Company's shareholder's meetings, the meetings of the Board of
Directors, the Executive Committee of the Board of Directors and the
Terms and Pricing Committee of the Board of Directors since the end of
the most recent fiscal year with respect to which an audit report has
been issued and inquiries of and discussions with certain officials of
the Company who have responsibility for financial and accounting matters
with respect to the unaudited financial statements and any other
unaudited financial statement data included or incorporated by reference
in the Registration Statement and Prospectus, any Interim Financials, and
any unaudited pro forma financial statements included or incorporated by
reference in the Registration Statement and Prospectus, and as to whether
(1) as of a specified date not more than three days prior to the date of
the letter, there was any change in the consolidated capital stock or any
increase in consolidated long-term debt of the Company and its
subsidiaries (except for increases due to accretion of discount on
original issue discount securities, if any) or any decrease in the
consolidated net assets of the Company and its subsidiaries (before
considering the effect of unrealized gains and losses on debt and equity
securities classified as "available for sale" under Statement of
Financial Accounting Standards (SFAS) No. 115) as compared with the
amounts shown on the most recent consolidated balance sheet of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus (the "Recent Balance Sheet") or (2)
during the period, if any, from the date of the Recent Balance Sheet to
the date of the most recent balance sheet included in the Interim
Financials (the "Interim Period") there was any decrease, as compared
with the corresponding period in the preceding year, in consolidated
total revenues or in consolidated net income of the Company and its
subsidiaries, or (3) during the period from the date of the Interim
Financials or, if there are no Interim Financials, from the date of the
Recent Balance
-1-
Sheet to a specified date not more than three days prior to the date of
the letter there was any decrease, as compared with the corresponding
period in the preceding year, in consolidated total revenues or in
consolidated net income of the Company and its subsidiaries, which
reading, inquiries and discussions would not necessarily reveal changes
in the financial position or results of operations or inconsistencies in
the application of generally accepted accounting principles or other
matters of significance with respect to the following, nothing came to
their attention that caused them to believe that (A) any material
modifications should be made to the unaudited financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus for them to be in conformity with
generally accepted accounting principles or that such unaudited financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the related
published rules and regulations thereunder, (B) the Interim Financials,
if any, are not stated on a basis substantially consistent with that of
the audited consolidated financial statements included or incorporated by
reference in the Registration Statement and Prospectus, (C) any other
unaudited financial statement data included or incorporated by reference
in the Registration Statement and Prospectus do not agree with the
corresponding items in the unaudited financial statements from which such
data were derived or any such unaudited financial statement data were not
determined on a basis substantially consistent with the corresponding
amounts in the audited financial statements included or incorporated by
reference in the Registration Statement and Prospectus, (D) any unaudited
pro forma financial statements included or incorporated by reference in
the Registration Statement and Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements, (E)(1) as of the date of the Interim Financials, if any, and
as of a specified date not more than three days prior to the date of the
letter, there was any change in the consolidated capital stock or any
increase in consolidated long-term debt of the Company and its
subsidiaries (except for increases due to accretion of discount on
original issue discount securities, if any) or any decrease in the
consolidated net assets of the Company and its subsidiaries (before
considering the effect of unrealized gains and losses on debt and equity
securities classified as "available for sale" under Statement of
Financial Accounting Standards (SFAS) No. 115) as compared with the
amounts shown on the Recent Balance Sheet or (2) during any Interim
Period, there was any decrease, as compared with the corresponding period
in the preceding year, in consolidated total revenues or in consolidated
net income of the Company and its subsidiaries, or (3) during the period
from the date of the Interim Financials or, if there are no Interim
Financials, from the date of the Recent Balance Sheet to a specified date
not more than three days prior to the date of the letter there was any
decrease, as compared with the corresponding period in the preceding
year, in consolidated total revenues or in consolidated net income of the
Company and its subsidiaries except in each such case for (1), (2) and
(3) as set forth in or contemplated by the Registration Statement and
Prospectus or except for such exceptions as may be enumerated in such
letter; and
(iii) In addition to the limited procedures referred to in clause (ii)
above, they have carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are derived from the general financial and
accounting records of the Company and its subsidiaries, which are
included or incorporated by reference in the Registration Statement and
Prospectus and which are specified
-2-
by the Representatives and have compared such amounts, percentages and
financial information with the financial and accounting records of the
Company and its subsidiaries and have found them to be in agreement.
-3-
ANNEX III
DELAYED DELIVERY CONTRACT
___________________, 19__
AMERICAN GENERAL FINANCE CORPORATION, c/o [Name and address of appropriate
Representatives] Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from American General Finance
Corporation (hereinafter called the "Company"), and the Company agrees to sell
to the undersigned,
[$______________________________________
principal amount] [(insert number of Warrants)] of the Company's [Title of
Securities] (the "Securities"), offered by the Company's Prospectus dated ,
19__, as amended or supplemented by the Prospectus Supplement dated
_______________, 19__, receipt of a copy of which is hereby acknowledged, at a
purchase price of [ % of the principal amount thereof] [, plus accrued interest,
if any, from the date from which interest accrues as set forth below,] [and
accrued amortization, if any, from [ ] [the date from which interest accrues as
set forth below][ to the Delivery Date] [and]] [_____ per Warrant] and on the
further terms and conditions set forth in this contract.
[The undersigned will purchase the Securities from the Company on , 19__
(the "Delivery Date") and interest on the Securities so purchased will accrue
from _________, 19__.]
[The undersigned will purchase the Securities from the Company on the
delivery date or dates and in the [principal amount or amounts] [number or
numbers] set forth below:
[Principal [Date from Which
Delivery Date Amount Interest Accrues [Number
_______, 19__ $ __________, 19__
_______, 19__ $ ] __________, 19__] ]
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".]
-1-
Payment for the Securities which the undersigned has agreed to purchase
on [the] [each] Delivery Date shall be made to the Company or its order by
certified or official bank check in _______________ Clearing House funds at the
office of _________________ or by wire transfer to a bank account specified by
the Company, on [the] [such] Delivery Date upon delivery to the undersigned of
the Securities then to be purchased by the undersigned in definitive form and in
such denominations and registered in such names as the undersigned may designate
by written or telegraphic communication addressed to the Company not less than
[three] full business days prior to [the] [such] Delivery Date.
The obligation of the Company to make delivery of and accept payment for,
and the obligation of the undersigned to take delivery of and make payment for,
Securities on [the] [each] Delivery Date shall be subject only to the conditions
that (1) the purchase of the Securities to be made by the undersigned shall not
on [the] [such] Delivery Date be prohibited under the laws of any jurisdiction
to which the undersigned is subject, and (2) the Company shall have sold to the
Underwriters the total [principal amount] [number] of the Securities less the
[principal amount] [number] thereof covered by this and other similar contracts.
The obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants that, as of the date
of this contract, the undersigned is not prohibited from purchasing the
Securities hereby agreed to be purchased by it under the laws of any
jurisdiction to which the undersigned is subject.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinions of counsel for the Company
delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original but all
such counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
-2-
This contract shall be governed by, and construed in accordance with, the
laws of the State of New York applicable to agreements made and to be performed
in such state.
Yours very truly,
___________________________________
(Name of Purchaser)
By ________________________________
(Signature)
________________________________
(Name and Title)
________________________________
(Address)
Accepted _______________________, 19__
AMERICAN GENERAL FINANCE CORPORATION
By _________________________________
[Title]
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print)
Telephone No.
Name (Including Area Code)
---- ---------------------
-3-
