EXHIBIT 1
AMERICAN GENERAL FINANCE CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
[ ], 20[ ]
To the Representatives Named
in Schedule I hereto of the
Underwriters named in Schedule II hereto
Ladies and Gentlemen:
1. INTRODUCTORY. American General Finance Corporation, an Indiana
corporation (the "COMPANY"), proposes to issue and sell to the underwriters
named in Schedule II hereto (the "UNDERWRITERS"), for whom you are acting as
representatives (the "Representatives"), its debt securities (the "OFFERED DEBT
SECURITIES") identified in Schedule I hereto, to be issued under the indenture
specified in Schedule I hereto (the "INDENTURE") between the Company and the
Trustee identified in such Schedule (the "Trustee"). In the absence of
Representatives, any reference herein to the "Representatives" shall be deemed
to be a reference to the "Underwriters".
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3 relating to certain of its debt securities (the "SHELF SECURITIES"),
including the Offered Debt Securities (the "INITIAL REGISTRATION Statement").
The Company also has filed with, or proposes to file with, the Commission
pursuant to Rule 424 under the Securities Act (and at such time as may be
required by Rule 430A(a)(3) under the Securities Act) a prospectus supplement
specifically relating to the Offered Debt Securities. The various parts of the
Initial Registration Statement and any post-effective amendment thereto,
including all exhibits thereto, the documents incorporated by reference in the
prospectus contained therein and any information deemed by virtue of Rule 430A
or Rule 430B under the Securities Act to be part of the registration statement
at the applicable time of effectiveness or deemed effectiveness, but excluding
the Form T-1 (as defined below), each as amended at the time such part of the
Initial Registration Statement became or hereafter is deemed to become effective
or such part of any post-effective amendment thereto became or hereafter becomes
effective are hereinafter collectively referred to as the "REGISTRATION
STATEMENT". The related prospectus covering the Shelf Securities, dated [ ], 20[
], in the form included in the Registration Statement on the date hereof is
hereinafter referred to as the "BASIC PROSPECTUS". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the Offered
Debt Securities in the form first used to confirm sales of the Offered Debt
Securities (or in the form first made available to the Underwriters by the
Company to meet requests of purchasers pursuant to Rule 173 under the Securities
Act) is hereinafter referred to as the "PROSPECTUS", and the term "PRELIMINARY
PROSPECTUS" means any preliminary form of the Prospectus. For purposes of this
Agreement, "APPLICABLE TIME" shall mean [ ]:[ ] [a/p]m (Eastern Time) on [ ],
20[ ] or such other time as agreed by the Company and the Representatives, "FREE
WRITING PROSPECTUS" has the meaning set forth in Rule 405 under the Securities
Act and "TIME OF SALE PROSPECTUS" means the Basic Prospectus, as amended and
supplemented as of the Applicable Time, [including, without limitation, by the
preliminary prospectus,] together with the free writing prospectuses, if any,
and other information, if any, identified in Schedule I hereto. Any reference in
this Agreement to the Basic Prospectus, any preliminary prospectus, the Time of
Sale Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "EXCHANGE ACT") on or before the date of the Basic
Prospectus, such preliminary prospectus, the Time of Sale Prospectus or the
Prospectus, as the case may be; any reference to "amend", "amendment" or
"supplement" with respect to the Registration Statement shall be deemed to refer
to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the initial effective date of
the Initial Registration Statement that is incorporated by reference in the
prospectus contained in the Registration Statement; and any reference to
"amend", "amendment" or "supplement" with respect to the Basic Prospectus, any
preliminary prospectus, the Time of Sale Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed under the Exchange Act after
the date of the Basic Prospectus, such preliminary prospectus, the Time of Sale
Prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) The Initial Registration Statement has become effective; no stop
order suspending the effectiveness of the Initial Registration Statement or any
post-effective amendment thereto is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission. The Company is a
"well-known seasoned issuer" as defined in Rule 405 under the Securities Act
eligible to use the Registration Statement as an automatic shelf registration
statement, and the Company has not received notice that the Commission objects
to use of the Registration Statement as an automatic shelf registration
statement.
(b) (i) The Registration Statement (as amended) and the Prospectus
(as amended or supplemented) conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "TRUST INDENTURE ACT"), and did not and will not, as of the
applicable effective date, the date any Annual Report on Form 10-K of the
Company has been filed with the Commission after such effective date (and before
the Closing Date referred to in Section 3), the date of this Agreement and the
Closing Date as to the Registration Statement and any amendment thereto, and as
of its date, the date of this Agreement and the Closing Date as to the
Prospectus and any amendment or supplement thereto, contain an untrue statement
of a material fact or, in the case of the Registration Statement, omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or, in the case of the Prospectus, omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, and (ii)
the Time of Sale Prospectus does not, as of the Applicable Time, and at the
Closing Date, the Time of Sale Prospectus, as then amended or supplemented by
the Company, if applicable, will not, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; except that the foregoing representations and warranties in this
Section 2(b) shall not apply to
(1) that part of the Registration Statement which constitutes
the Statement of Eligibility ("FORM T-1") under the Trust Indenture Act of
the Trustee,
(2) statements or omissions in the Registration Statement, the
Time of Sale Prospectus or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter provided in
writing to the Company by or through the Representatives expressly for use
therein, or
(3) any statement which does not constitute part of the
Registration Statement, the Time of Sale Prospectus or the Prospectus
pursuant to Rule 412 under the Securities Act.
(c) The documents incorporated by reference in the Time of Sale
Prospectus or in the Prospectus when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act, and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by reference and
constituting an amendment or supplement thereto, when they are filed with the
Commission, will conform in all material respects to the requirements of the
Exchange Act and will not
2
contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information relating to any
Underwriter provided in writing to the Company by or through the Representatives
expressly for use therein or to any statement in any such document which does
not constitute part of the Time of Sale Prospectus or Prospectus pursuant to
Rule 412 under the Securities Act.
(d) The Company was not, or will not be, as the case may be, an
"ineligible issuer", as defined in Rule 405 under the Securities Act, on the
eligibility determination date for the offering of the Offered Debt Securities,
as determined pursuant to Rule 164 under the Securities Act. The Company has not
prepared, used or referred to any free writing prospectus, except for the free
writing prospectuses, if any, identified in Schedule I hereto and any additional
free writing prospectuses (including electronic road shows) previously or
hereafter furnished by the Company to the Representatives for approval prior to
use (such approval not to be unreasonably withheld). Any free writing prospectus
that the Company has or hereafter uses in connection with the offering of the
Offered Debt Securities has complied and will comply with the filing and other
requirements of Rules 164 and 433 applicable to any such free writing
prospectus.
(e) The Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Indiana, and has full corporate
power and authority to own its properties and to conduct its business as
described in the Time of Sale Prospectus.
(f) The Offered Debt Securities have been duly authorized and when
issued and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture and enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles and any Contract Offered Debt Securities (as defined in
Section 3), when executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed Delivery Contracts (as
defined in Section 3), will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture and enforceable
in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(g) The Indenture has been duly authorized, executed and delivered,
and has been, or upon effectiveness of the Registration Statement will be, duly
qualified under the Trust Indenture Act and constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Offered Debt
Securities and the Indenture will conform in all material respects to the
descriptions thereof in the Time of Sale Prospectus and the Prospectus as
amended or supplemented.
(h) The issue and sale of the Offered Debt Securities and the
compliance by the Company with all of the provisions of the Offered Debt
Securities, the Indenture, this Agreement and any Delayed Delivery Contract, and
the consummation of the transactions herein and therein contemplated, will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the property or
assets of the Company is subject, or result in any violation of 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 properties, except, in each case,
for such conflicts, breaches, defaults and violations that would not have a
material adverse effect on the business, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken as a
whole (a "MATERIAL ADVERSE EFFECT") or affect the validity of the Offered Debt
Securities, nor will such action result in any violation of the provisions of
the Restated Articles of Incorporation, as amended, or the Amended and Restated
By-Laws of the Company; and no
3
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body is required by the Company for the
issue and sale of the Offered Debt Securities or the consummation by the Company
of the other transactions contemplated by this Agreement, any Delayed Delivery
Contract or the Indenture, except for such consents, approvals, authorizations,
orders, registrations or qualifications which, if not obtained or made, would
not have a Material Adverse Effect or affect the validity of the Offered Debt
Securities, and such consents, approvals, authorizations, orders, registrations
or qualifications as have been, prior to the date of this Agreement, obtained
under the Securities Act or the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations or qualifications as may be
required under state securities or "Blue Sky" or insurance laws in connection
with the purchase and distribution of the Offered Debt Securities by the
Underwriters.
(i) There is no action, suit or proceeding pending or, to the
knowledge of the executive officers of the Company, threatened against the
Company or any of its subsidiaries, which has, or may reasonably be expected in
the future to have, a Material Adverse Effect, except as set forth or
contemplated in the Time of Sale Prospectus and the Prospectus.
(j) Since the date of the latest audited financial statements
included or incorporated by reference in the Time of Sale Prospectus, there has
not been any material change in the capital stock or any material increase in
the consolidated long-term debt of the Company or any material adverse change in
or affecting the consolidated financial position, shareholders' equity or
results of operations of the Company and its consolidated subsidiaries (a
"MATERIAL ADVERSE CHANGE") otherwise than as set forth or contemplated in such
Time of Sale Prospectus.
3. PURCHASE, OFFERING AND DELIVERY. The Company agrees to issue and sell
the Offered Debt Securities to the several Underwriters as hereinafter provided,
and each Underwriter, on the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the respective principal amount of
Offered Debt Securities set forth opposite such Underwriter's name in Schedule
II hereto at the purchase price set forth in Schedule I hereto.
Payment for the Offered Debt Securities shall be made to the Company by
wire transfer of immediately available funds on the date and at the time and
place set forth in Schedule I hereto (or at such time and on the same or such
other date, not later than the third Business Day thereafter, as the
Representatives and the Company may agree in writing). Such payment will be made
upon delivery to, or to the Representatives for the respective accounts of, such
Underwriters of the Offered Debt Securities registered in such names and in such
denominations as the Representatives shall request not less than two full
Business Days prior to the date of delivery. As used herein, the term "BUSINESS
DAY" means any day other than a day on which banks are permitted or required to
be closed in New York City. The time and date of such payment and delivery with
respect to the Offered Debt Securities are referred to herein as the Closing
Date. The certificates, if any, for the Offered Debt Securities will be made
available for inspection and packaging by the Representatives by 1:00 P.M. on
the Business Day prior to the Closing Date at such place in New York City as the
Representatives and the Company shall agree.
If the Time of Sale Prospectus provides for sales of Offered Debt
Securities pursuant to delayed delivery contracts, the Company authorizes the
Underwriters to solicit offers to purchase Offered Debt Securities pursuant to
delayed delivery contracts substantially in the form of Schedule III attached
hereto ("DELAYED DELIVERY CONTRACTS") with such changes therein as the Company
may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors of the types set forth in the Time of Sale Prospectus.
On the Closing Date, the Company will pay the Representatives as compensation,
for the accounts of the Underwriters, the fee set forth in Schedule I in respect
of the principal amount of Offered Debt Securities covered by Delayed Delivery
Contracts (the "CONTRACT OFFERED DEBT SECURITIES") by wire transfer of
immediately available funds to a bank account specified by the Representatives.
The Underwriters will not have any responsibility in respect of the validity or
the performance of Delayed Delivery Contracts. If the Company executes and
delivers Delayed Delivery Contracts, the Contract Offered Debt Securities shall
be deducted from the total Offered Debt Securities to which Schedule II pertains
and the balance shall be "Underwriters' Offered Debt Securities"; and the
aggregate principal
4
amount of Offered Debt Securities to be purchased by each Underwriter shall be
reduced commensurately so that the principal amount of Offered Debt Securities
(rounded to the nearest $1,000 principal amount) set forth opposite each
Underwriter's name in such Schedule II is in the same proportion to the total
Underwriters' Offered Debt Securities as the unreduced amounts of each such
Underwriter bear to the total Offered Debt Securities including Contract Offered
Debt Securities. Such reductions shall be revised to the extent the
Representatives determine such reductions should be otherwise and so advise the
Company.
4. OFFERING BY UNDERWRITERS.
(a) It is understood that the several Underwriters propose to offer
the Offered Debt Securities for sale to the public as set forth in the Time of
Sale Prospectus.
(b) The Underwriters represent and covenant that any offer or sale
of the Offered Debt Securities through an electronic medium has been and will be
made in compliance with the Securities Act.
(c) Without the prior written consent of the Company, each of the
several Underwriters represents and agrees with the Company that it will not
distribute to any person a free writing prospectus, whether or not required to
be filed with the Commission, other than an "issuer free writing prospectus", as
such term is defined in Rule 433(h) under the Securities Act.
[(d) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "RELEVANT MEMBER
STATE"), each of the several Underwriters represents and agrees with the Company
that with effect from and including the date on which the Prospectus Directive
is implemented in that Relevant Member State (the "RELEVANT IMPLEMENTATION
DATE") it has not made and will not make an offer of Offered Debt Securities to
the public in that Relevant Member State prior to the publication of a
prospectus in relation to the Offered Debt Securities which has been approved by
the competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Offered Debt Securities to the public in
that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year; (2) a
total balance sheet of more than E43,000,000 and (3) an annual net
turnover of more than E50,000,000, as shown in its last annual or
consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by the Company of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For purposes of this provision, the expression an "offer of Offered Debt
Securities to the public" in relation to any Offered Debt Securities in any
Relevant Member State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Offered Debt Securities
so as to enable an investor to decide to purchase or subscribe the Offered Debt
Securities, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and the term
"Prospectus Directive" means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.](1)
[(e)] Each of the several Underwriters represents and agrees with
the Company that it will comply with or observe any [other] restrictions or
limitations set forth in the Prospectus on persons to
----------
(1) This subsection to be deleted if the minimum Authorized Denomination of the
Offered Debt Securities is equal to or in excess of E50,000 (or equivalent).
5
whom, or the jurisdictions in which, or the manner in which, the Offered Debt
Securities may be offered, sold, resold or delivered.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
several Underwriters that:
(a) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement, the Time of Sale
Prospectus or the Prospectus and prior to the completion of the distribution of
the Offered Debt Securities provide the Representatives with a reasonable
opportunity to review such proposed amendment or supplement prior to any filing
thereof (other than any filing required to be made pursuant to the Exchange Act)
and will not make any such amendment or supplement between the date hereof and
the Closing Date which shall be reasonably disapproved by the Representatives
promptly after reasonable notice thereof; prior to the completion of the
distribution of the Offered Debt Securities, the Company will 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, 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 Time of Sale
Prospectus, the Prospectus or any amended Time of Sale Prospectus or Prospectus
has been filed with, or transmitted for filing to, the Commission (other than
any filing required to be made pursuant to the Exchange Act ), 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 Offered Debt Securities, of the suspension
of the qualification of the Offered Debt 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 Commission for the amendment or supplement of
the Registration Statement or Prospectus or for additional information; in the
event of the issuance of any such stop order or of any such order preventing or
suspending the use of any such prospectus or suspending any such qualification,
the Company will use promptly its best efforts to obtain its withdrawal; the
Company will furnish to the Representatives, prior to any use thereof, a copy of
each free writing prospectus prepared by or on behalf of the Company or proposed
to be used or referred to by the Company, and the Company will not use or refer
to any free writing prospectus which shall be reasonably disapproved by the
Representatives promptly after reasonable notice thereof.
(b) If at any time when a prospectus relating to any Offered Debt
Securities (or in lieu thereof the notice referred to in Rule 173(a) under the
Securities Act) is required to be delivered under the Securities Act any event
occurs as a result of which the Time of Sale Prospectus, as then amended or
supplemented, or the Prospectus, as then amended or supplemented, as the case
may be, 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 (or
in lieu thereof the notice referred to in Rule 173(a) under the Securities Act)
is delivered, not misleading, or if it is necessary at any time to amend or
supplement the Registration Statement, the Time of Sale Prospectus or the
Prospectus to comply with the Securities Act or the Trust Indenture Act or to
ensure that the information included in the Time of Sale Prospectus then being
used to solicit offers to purchase Offered Debt Securities does not conflict
with the information contained in the Registration Statement, the Company
promptly will prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement, the Time of Sale
Prospectus or the Prospectus, as the case may be, that will correct such
statement or omission or conflict or effect such compliance. The expense of
complying with the requirements of this Section 5(b) shall be borne
(i) during the period of six months after the first date of
the public offering of the Offered Debt Securities, by the Company, and
(ii) after the expiration of such six-month period, by those
Underwriters on whose behalf the Representatives may request copies of the
Prospectus or of an amendment or amendments of or a supplement or
supplements to the Prospectus.
(c) The Company will timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to its
security holders as soon as practicable an earnings
6
statement or statements of the Company and its subsidiaries (which need not be
audited) for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the Securities Act.
(d) The Company will furnish to the Representatives copies of the
Registration Statement (one of which will include all exhibits), each related
preliminary prospectus, the Time of Sale Prospectus, the Prospectus, and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representatives reasonably request.
(e) The Company will arrange for the qualification of the Offered
Debt Securities for offering and sale and the determination of their eligibility
for investment under the applicable securities and insurance laws of such
jurisdictions as the Representatives reasonably designate and will continue such
qualifications in effect so long as required for the distribution; provided,
however, that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction.
(f) The Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Offered
Debt Securities under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus
(including each component thereof) and the Prospectus and amendments and
supplements to any of the foregoing and the mailing and delivering of
copies thereof to the Underwriters and dealers;
(ii) the cost of printing, word processing or reproducing this
Agreement, the Indenture, 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 Offered Debt Securities;
(iii) all expenses in connection with the qualification of the
Offered Debt Securities for offering and sale under state securities or
insurance laws as provided in Section 5(e) hereof, including fees and
disbursements of the Representatives' counsel in connection with such
qualification and in connection with any Blue Sky and Legal Investment
Memoranda;
(iv) any fees charged by securities rating services for rating
the Offered Debt Securities;
(v) any filing fees incident to any required review by the
Corporate Financing Department of NASD Regulation, Inc. (NASDR) of the
terms of the sale of the Offered Debt Securities;
(vi) the cost of preparing the Offered Debt Securities,
including any fees and expenses relating to the use of book-entry
securities;
(vii) the fees and expenses of any Trustee and any agent of
any Trustee and the fees and disbursements of counsel for any Trustee in
connection with the Indenture and the Offered Debt Securities; 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. It is understood, however, that, except as provided in this
Section, Section 7 and Section 13 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Offered Debt Securities by them,
and any advertising expenses connected with any offers they may make.
7
(g) During the period beginning on the date hereof and continuing to
and including the earlier of (i) the termination of the trading restrictions for
the Offered Debt Securities, as notified to the Company by the Representatives,
and (ii) the Closing Date, the Company will not, without the prior written
consent of the Representatives, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company that mature more than nine (9)
months after the Closing Date and that are substantially similar to the Offered
Debt Securities. The foregoing restriction shall not apply to an issue of debt
securities denominated in a currency other than U.S. dollars or to an issue of
debt securities at least 90% of which is offered and sold outside the United
States.
(h) The Company will advise the Representatives in writing not later
than 3:30 p.m., New York City time, on the second Business Day prior to the
Closing Date of the names of any investors with which the making of Delayed
Delivery Contracts has been approved by the Company and the principal amount of
any Contract Offered Debt Securities to be covered by each such Delayed Delivery
Contract.
(i) If it appears that all of the Offered Debt Securities will not
have been sold by the Underwriters before July 26, 2009, prior to such date the
Company will file a new shelf registration statement and take any other action
necessary to permit the public offering of the Offered Debt Securities to
continue without interruption; references in this Agreement to the Registration
Statement shall include the new registration statement after it has become
effective.
(j) If the Representatives so request, the Company will prepare a
final term sheet relating to the offering of the Offered Debt Securities
containing information that describes the final terms of the Offered Debt
Securities and the offering, in a form consented to by the Representatives, and
will file such final term sheet within the period required by Rule 433(d)(5)(ii)
under the Securities Act following the date the final terms have been
established.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Offered Debt Securities
will be subject to the accuracy, at and as of the Closing Date, in all material
respects, of the representations and warranties on the part of the Company
herein, to the accuracy, in all material respects, of the statements of Company
officers made pursuant to the provisions hereof, to the performance, in all
material respects, by the Company of its obligations hereunder and to the
following additional conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the
Commission or, to the knowledge of the executive officers of the Company, shall
be contemplated by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the reasonable
satisfaction of the Representatives.
(b) Since the respective dates as of which information is given in
the Time of Sale Prospectus, there shall not have occurred any material change
in or affecting the business, properties or financial condition of the Company
or its material subsidiaries which, in the judgment of the Representatives,
materially impairs the investment quality of the Offered Debt Securities.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, 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, if the effect of any
such event, in the reasonable judgment of the Representatives, is to make
it impracticable or inadvisable to market the Offered Debt Securities on
the terms and in the manner contemplated in the Time of Sale Prospectus as
amended or supplemented or the Prospectus as amended or supplemented;
(ii) a general moratorium on commercial banking activities in
New York declared by either Federal or New York State authorities;
8
(iii) any downgrading in the rating accorded the Company's
senior debt securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act;
(iv) the suspension in trading in the securities of the
Company on any national securities exchange or quotation system on which
they are listed or quoted, if the effect of such event in the reasonable
judgment of the Representatives is to make it impracticable or inadvisable
to market the Offered Debt Securities on the terms and in the manner
contemplated in the Time of Sale Prospectus as amended or supplemented or
the Prospectus as amended or supplemented; or
(v) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war, other than any such outbreak, escalation or declaration
that does not represent a significant departure from the conditions that
exist on the date hereof, if the effect of any such event in the
reasonable judgment of the Representatives is to make it impracticable or
inadvisable to market the Offered Debt Securities on the terms and in the
manner contemplated in the Time of Sale Prospectus as amended or
supplemented or the Prospectus as amended or supplemented.
(d) The Representatives shall have received an opinion or opinions
of Xxxx X. Xxxxxxx, Esq., Deputy General Counsel of the Company, or such other
counsel as shall be acceptable to the Representatives, dated the Closing Date,
to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing under the laws of the State of Indiana, and has the corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Time of Sale Prospectus and the
Prospectus as amended or supplemented and to enter into and perform its
obligations under, or as contemplated under, this Agreement;
(ii) 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, and is in good standing under the laws of its
jurisdiction of incorporation, with corporate power and authority to own,
lease and operate its properties and conduct its business as described in
the Time of Sale Prospectus and the Prospectus as amended or supplemented;
provided, however, that "good standing" means with respect to any
subsidiary incorporated under the laws of the State of Indiana, that such
subsidiary has filed its most recent biennial 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 subsidiary; 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 and be in good standing 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, lease and operate its
properties and to conduct its business as described in the Time of Sale
Prospectus and the Prospectus as amended or supplemented, 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
(ii) upon opinions (in form and substance satisfactory to the
Representatives) of local counsel and of counsel for the subsidiaries,
such counsel being
9
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 public officials or officers of the Company or its
subsidiaries, provided that such counsel shall state that he or she
believes that he or she is justified in relying upon such opinions);
(iii) There are no legal or governmental proceedings pending
or, to the knowledge of such counsel, threatened, of a character that are
required to be disclosed in the Registration Statement, the Time of Sale
Prospectus or the Prospectus, each as amended or supplemented, 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, the Time of Sale Prospectus or the Prospectus, each as amended
or supplemented (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 and all descriptions in the Time of Sale Prospectus and
the Prospectus, each as amended or supplemented, of such documents to
which the Company or its subsidiaries are a party are accurate in all
material respects;
(iv) Neither the Company nor any of its subsidiaries is in
violation of its articles of incorporation, charter or by-laws or in
default in the performance or observance of any contractual obligation
known to such counsel, the violation of or default under which has or will
have a material adverse effect on the business of the Company and its
subsidiaries taken as a whole. The issue and sale of the Offered Debt
Securities, the compliance by the Company with all of the provisions of
the Offered Debt Securities, the Indenture, each of the Delayed Delivery
Contracts, if any, and this Agreement, and the consummation of the
transactions herein and therein contemplated will not (A) conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any contract, 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, order, rule, regulation, judgement,
writ or decree 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 (iv) with respect to
subsidiaries upon opinions (in form and substance 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 or she believes that he or she is justified in relying upon such
opinions);
(v) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of
their properties is required for the issue and sale of the Offered Debt
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, the Indenture, or any Delayed Delivery
Contract, except such as may be required under the Securities Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or "Blue Sky" or insurance laws in connection with the public offering of
the Offered Debt Securities by the Underwriters;
(vi) This Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company;
(vii) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a valid and
binding agreement of the Company, enforceable against the
10
Company in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(viii) The Offered Debt Securities have been duly authorized
and, when executed and authenticated pursuant to the Indenture and issued
and delivered against payment therefor pursuant to this Agreement (or, in
the case of any Contract Offered Debt Securities, pursuant to the Delayed
Delivery Contracts with respect thereto), (A) the Offered Debt Securities
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, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles, are in the form
authorized in or pursuant to the Indenture, and conform in all material
respects to the description thereof in the Time of Sale Prospectus and the
Prospectus as amended or supplemented and (B) each holder of Offered Debt
Securities will be entitled to the benefits of the Indenture;
(ix) The information in the Time of Sale Prospectus and the
Prospectus as amended or supplemented under the captions "Description of
Debt Securities", "Certain United States Federal Income Tax
Considerations", and "Description of Offered Debt Securities", or any
caption purporting to cover such matters, to the extent that such
information constitutes matters of law, summaries of legal matters, or
legal conclusions, has been reviewed by such counsel and is correct in all
material respects;
(x) The Indenture is qualified under the Trust Indenture Act;
(xi) The Registration Statement is effective under the
Securities Act and, to such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under the
Securities Act and no proceeding for that purpose has been initiated or
threatened by the Commission;
(xii) Each part of the Registration Statement (other than the
financial statements and supporting schedules included therein and the
Statement of Eligibility under the Trust Indenture Act filed as an exhibit
thereto, as to which no opinion need be expressed), at the time it became
effective, appeared on its face to be appropriately responsive in all
material respects to the applicable requirements of the Securities Act,
the Trust Indenture Act and the respective rules and regulations of the
Commission thereunder;
(xiii) The Company is not, and after giving effect to the
issue and sale of the Offered Debt Securities, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended;
(xiv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial statements
and supporting schedules included therein, as to which no opinion need be
expressed), when they were filed with the Commission, complied as to form
in all material respects with the requirements of the Exchange Act and the
rules and regulations thereunder; and
(xv) Nothing has come to such counsel's attention that would
lead such counsel to believe that (A) any part of the Registration
Statement (other than the financial statements and supporting schedules
contained or incorporated by reference therein or omitted therefrom and
the Statement of Eligibility under the Trust Indenture Act filed as an
exhibit thereto, as to which such counsel need not comment), when such
part became effective or is deemed to have become effective, and if an
amendment to the Registration Statement under the Securities Act or an
Annual Report on Form 10-K under the Exchange Act has been filed by the
Company with the Commission subsequent to the effectiveness of the Initial
Registration Statement, then at
11
the time each such amendment became effective and the most recent such
Form 10-K was filed, 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, (B) the Time of
Sale Prospectus as of the Applicable Time or the Prospectus as of its date
(other than the financial statements and supporting schedules included or
incorporated by reference therein or omitted therefrom, as to which such
counsel need not comment) included an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or (C) the Time of Sale Prospectus or the
Prospectus (other than the financial statements and supporting schedules
included or incorporated by reference therein or omitted therefrom, as to
which such counsel need not comment), each as amended or supplemented, if
applicable, as of the Closing Date includes 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.
In giving such opinion, such counsel may rely as to matters of New York
law upon the opinion of Sidley Austin LLP referred to in Section 6(e).
(e) The Representatives shall have received from Sidley Austin LLP,
counsel for the Underwriters, such opinion, dated the Closing Date, with respect
to the incorporation of the Company, the validity of the Offered Debt
Securities, the Registration Statement, the Time of Sale Prospectus, the
Prospectus, and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters. In giving such opinion, Sidley Austin LLP may rely as to matters of
Indiana law upon the opinion of Xxxx X. Xxxxxxx, Esq., Deputy General Counsel of
the Company (or other counsel licensed to practice in the State of Indiana)
referred to in Section 6(d).
(f) The Representatives shall have received a certificate of the
Chairman, the President, or a Vice President and the Treasurer or Assistant
Treasurer of the Company, dated the Closing Date, in which such officers, to the
best of their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, in all material respects, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied, in all material respects, at or prior to the Closing Date, that no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or threatened by
the Commission, and that, since the respective dates as of which information is
given in the Time of Sale Prospectus and the Prospectus as amended or
supplemented there has not been any Material Adverse Change, otherwise than as
set forth or contemplated in the Time of Sale Prospectus or the Prospectus as
amended or supplemented.
(g) The Representatives shall have received letters of the
independent registered public accounting firm(s) which certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement, the Time of Sale Prospectus or any
amendment or supplement thereto and the Prospectus as amended or supplemented
and/or of such other independent registered public accounting firm(s) as the
Company shall have engaged for such purpose, dated the date hereof and the
Closing Date, to the effect set forth in Schedule IV hereto. The Company will
furnish the Representatives with such confirmed copies of such opinions,
certificates, letters and documents as the Representatives reasonably request.
7. INDEMNIFICATION. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Securities 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 any material fact contained in any preliminary
prospectus, the Time of Sale Prospectus (including each component thereof) or
any amendment or supplement thereto, any "issuer free writing prospectus" as
defined in Rule 433(h) under the Securities Act, the Registration Statement or
any amendment thereto or the Prospectus or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
12
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as incurred; 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 Time of Sale Prospectus or any amendment
or supplement thereto, any "issuer free writing prospectus" as defined in Rule
433(h) under the Securities Act, the Registration Statement or any amendment
thereto, the Prospectus or any amendment or supplement thereto or any other
prospectus relating to the Offered Debt Securities or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by any Underwriter expressly for use therein; and provided
further, that the foregoing indemnity agreement with respect to any preliminary
prospectus relating to the Offered Debt Securities shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Offered Debt Securities or any person
controlling such Underwriter where (i) prior to the Applicable Time the Company
shall have notified such Underwriter in writing that such preliminary prospectus
contains an untrue statement of a material fact or omits to state therein a
material fact necessary to make the statements therein not misleading, (ii) such
untrue statement or omission of a material fact was corrected in an amended or
supplemented preliminary prospectus relating to the Offered Debt Securities
which is a component of the Time of Sale Prospectus and such amended or
supplemented preliminary prospectus was provided to such Underwriter by the
Company within a reasonable period of time in advance of the Applicable Time,
(iii) the Underwriter did not convey such amended or supplemented preliminary
prospectus to such person at or prior to the time of sale (including, without
limitation, a contract of sale) of Offered Debt Securities to such person, and
(iv) such losses, claims, damages or liabilities would not have occurred had the
Underwriter conveyed such amended or supplemented preliminary prospectus to such
person prior to such time of sale.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Time of Sale Prospectus (including each component thereof)
or any amendment or supplement thereto, any "issuer free writing prospectus" as
defined in Rule 433(h) under the Securities Act, the Registration Statement or
any amendment thereto or the Prospectus or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Time of Sale Prospectus or any amendment or
supplement thereto, any "issuer free writing prospectus" as defined in Rule
433(h) under the Securities Act, the Registration Statement or any amendment
thereto, the Prospectus or any amendment or supplement thereto or any other
prospectus relating to the Offered Debt Securities or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such Underwriter expressly for use therein; and will reimburse
the Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim as
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action is brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other
13
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 7 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 from the offering of the Offered Debt Securities to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the sale of Offered
Debt Securities (before deducting expenses) received by the Company bear to the
total commissions or discounts received by the Underwriters in respect thereof.
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 required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation 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
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Debt
Securities purchased by or through such Underwriter were sold 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 7 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 Securities Act; and the obligations of
each Underwriter under this Section 7 shall be in addition to any liability
which such Underwriter 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 Securities Act.
8. DEFAULTS OF UNDERWRITERS. (a) If any Underwriter shall default in its
obligation to purchase Underwriters' Offered Debt Securities which it has agreed
to purchase hereunder, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Underwriters'
Offered Debt Securities on the terms contained herein. If within twenty-four
hours after such default by any Underwriter the Representatives do not arrange
for the purchase of such Underwriters' Offered Debt Securities, then the Company
shall be entitled to a further period of twenty-four hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Underwriters' Offered Debt 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
14
such Underwriters' Offered Debt Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Underwriters'
Offered Debt Securities, the Representatives or the Company shall have the right
to postpone the Closing Date for the Underwriters' Offered Debt 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, the Time of Sale
Prospectus 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, the Time of Sale Prospectus or the Prospectus which in
the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section 8 with like effect as if such person had originally been a
party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Offered Debt Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of such Underwriters' Offered Debt
Securities which remains unpurchased does not exceed ten percent of the
aggregate principal amount of the Offered Debt Securities, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Underwriters' Offered Debt Securities which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of the
Offered Debt Securities which such Underwriter agreed to purchase hereunder) of
the Underwriters' Offered Debt 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 8 shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amounts of the Offered Debt Securities set
forth opposite their names in Schedule II hereto 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' Offered Debt Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of Underwriters' Offered Debt
Securities which remains unpurchased exceeds ten percent of the aggregate
principal amount of the Offered Debt 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' Offered Debt Securities of a defaulting Underwriter or
Underwriters, then this 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
5(f) hereof and the indemnity and contribution agreements in Section 7 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties, and other statements of
the Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter or any controlling person of any Underwriter or the Company
or any of its officers or directors or any controlling person, and will survive
delivery of and payment for the Offered Debt Securities.
10. NOTICES. All communications hereunder will be in writing, and, if sent
to the Underwriters, will be mailed or delivered and confirmed to the
Representatives at the address set forth in Schedule I or, if sent to the
Company, will be mailed or delivered and confirmed to it at 000 X.X. Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Facsimile Transmission No. (000) 000-0000,
Attention: Treasurer; provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed or delivered to such Underwriter at its
address furnished to the Company by such Underwriter.
11. SUCCESSORS. This Underwriting Agreement will inure solely to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 7 hereof, and no other person will have any right or obligation
15
hereunder. No purchaser of the Offered Debt Securities from any Underwriter
shall be deemed a successor or assign merely by reason of such purchase.
12. REPRESENTATION. 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 the Representatives.
13. TERMINATION. If for any reason, other than the occurrence of an event
described in Section 6(c), Underwriters' Offered Debt 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 out-of-pocket
expenses (including reasonable fees and disbursements of counsel) approved in
writing by the Representatives reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Offered Debt
Securities, but the Company shall then be under no further liability to any
Underwriter with respect to such Offered Debt Securities except as provided in
Section 5(f) and Section 7 hereof.
14. ADDITIONAL ACKNOWLEDGEMENTS. The Company acknowledges that in
connection with the offering and sale of the Offered Debt Securities: (a) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary
duties to, the Company or any other person, (b) the Underwriters owe the Company
only those duties and obligations set forth in this Agreement and prior written
agreements (to the extent not superseded by this Agreement), if any, and (c) the
Underwriters may have interests that differ from those of the Company. The
Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty
in connection with the offering of the Offered Debt Securities.
15. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
16. COUNTERPARTS. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
16
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us four counterparts hereof, whereupon this
letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
AMERICAN GENERAL FINANCE CORPORATION
By:
--------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
[NAME[S]]
By:
--------------------------------
Name:
Title:
17
SCHEDULE I
Title of Offered Debt [--%] [Floating Rate] [Zero Coupon] Senior
Securities: [Notes] due
Form: [Global Security-Book
Entry][Certificated][Bearer]
Aggregate Principal Amount: [$] --
Registration Statement No.: --
Price to Public: --% of the principal amount of the Offered
Debt Securities, plus accrued interest [,
if any,] from -- to the date of payment
and delivery [and accrued amortization, if
any, from -- to the date of payment and
delivery]
Purchase Price by --% of the principal amount of the Offered
Underwriters: Debt Securities, plus accrued interest [,
if any,] from -- to the date of payment
and delivery [and accrued amortization, if
any, from -- to the date of payment and
delivery]
Specified Funds for Payment
of Purchase Price: [New York] Clearing House funds
Indenture: Indenture dated as of May 1, 1999 between
the Company and Wilmington Trust Company
(successor trustee to Citibank, N.A.), as
Trustee
Maturity: --
Interest Rate: [--%] [Zero Coupon] [See Floating Rate
Provisions]
Interest Payment Dates: [months and dates]
Interest Record Dates: --
Redemption Provisions: [No provisions for redemption]
[The Offered 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
-- --
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][Offered Debt Securities are
repayable on --, at the option of the
holder, at their principal amount with
accrued interest.]
Schedule I-1
Sinking Fund Provisions: [No sinking fund provisions]
[The Offered Debt Securities are entitled
to the benefit of a sinking fund to retire
$-- principal amount of Offered 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 Offered Debt Securities in the
years -- through -- at 100% of their
principal amount plus accrued interest].
[If Securities are Extendable The Offered Debt Securities are repayable
Debt Securities, insert on --, [insert date and years], at the
Extendable Provisions: 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]].
[If Securities are Floating Initial annual interest rate will be --%
Rate Debt Securities, insert through -- [and thereafter will be
Floating Rate Provisions: adjusted [MONTHLY][QUARTERLY][SEMI-ANNUALLY]
[on each --, -- and --] [to an annual rate of
--% above the average rate for ---year
[month] [securities] [certificates of
deposit] issued 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 for ---month Treasury
bills); [from -- and thereafter the rate
will be the then current interest yield
equivalent plus --% of Interest
Differential].]
Authorized Denominations: --
Time of Sale Prospectus: Prospectus, dated --, 20--
[Preliminary Prospectus Supplement, dated
--, 20--, relating to the Offered Debt
Securities]
[Final Term Sheet, dated --, 20--,
containing a description of the final
terms of the Offered Debt Securities]
[Any free writing prospectuses containing
a description of terms that does not
reflect final terms, if the Time of Sale
Prospectus does not include a Final Term
Sheet]
[Any other free writing prospectuses filed
by the Company under Rule 433(d) of the
Securities Act]
[Any orally communicated pricing
information, if a Final Term Sheet is not
used]
Original Issue Date: --
Time of Delivery: --
Closing Location: --
Schedule I-2
Names and Addresses of Designated Representatives:
Representatives: Address for Notices, etc.:
Delayed Delivery: [None][Underwriters' commissions 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 --.]
[Other Terms] --
Schedule I-3
SCHEDULE II
PRINCIPAL
AMOUNT OF
OFFERED DEBT
SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ ---------
[Name(s) of Representative(s)]..................................................
[Name(s) of Underwriter(s)].....................................................
---------------------
Total........................................................................... $
=====================
Schedule II-1
SCHEDULE III
DELAYED DELIVERY CONTRACT
(Three copies of this Delayed Delivery Contract should
be signed and returned to the address shown below
so as to arrive not later than 9:00 A.M.,
New York Time, on , 20--.)
--, 20--
AMERICAN GENERAL FINANCE CORPORATION
c/o [Name and Address of Representatives]
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from
American General Finance
Corporation (hereinafter called the "COMPANY"), and the Company agrees to sell
to the undersigned, [if one delayed closing, insert - as of the date hereof, for
delivery on --, 20-- (the "DELIVERY DATE")] $-- principal amount of the
Company's [state title of Offered Debt Securities] (hereinafter called "DEBT
SECURITIES"), offered by the Company's Time of Sale Prospectus relating thereto,
receipt of a copy of which is hereby acknowledged, at --% of the principal
amount of the Debt Securities so purchased plus accrued interest, if any, from
--, 20--, [and accrued amortization, if any, from ?, 20?] to the Delivery Date
and on the further terms and conditions set forth in this Delayed Delivery
Contract ("CONTRACT").
[If two or more delayed Closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Debt Securities in the principal amounts
set forth below
DELIVERY DATE PRINCIPAL AMOUNT
------------- ----------------
Each of such delivery dates is hereinafter referred to as a "DELIVERY
DATE".]
Payment for Debt Securities which the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to the Company by wire
transfer of immediately available funds to a bank account specified by the
Company, on [the] [such] Delivery Date upon delivery to the undersigned of the
Debt Securities to be purchased by the undersigned - for delivery on such
Delivery Date - in definitive form and in such denominations and registered in
such names as the undersigned may designate by written communication addressed
to the Company not less than three full business days prior to [the] [such]
Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Debt Securities is to be regarded in all respects as a purchase as
of the date of this Contract; that 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, Debt Securities on [the] [each] Delivery
Date shall be subject only to the conditions that (A) investment in the Debt
Securities shall not at [the] [such] Delivery Date be prohibited under the laws
of any jurisdiction [in the United States] to which the undersigned is subject
and which governs such investment and (B) the
Schedule III-1
Company shall have sold to the Underwriters the total principal amount of the
Debt Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the Debt
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment. 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.
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 shall be
governed by and construed in accordance with the laws of the State of New York.
The obligation of the undersigned to take delivery of and make payment for
Debt Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Debt Securities pursuant to other contracts
similar to this Contract.
It is understood that the acceptance of any Delayed Delivery Contract
(including this Contract) is in the Company's sole discretion and, without
limiting the foregoing, 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.
Very truly yours,
[Name of Purchaser]
By:
-----------------------------------------
Title:
Address:
Telephone No.:
Accepted, as of the above date.
AMERICAN GENERAL FINANCE CORPORATION
By:
-------------------------------
Name:
Title:
Schedule III-2
SCHEDULE IV
Pursuant to Section 6(g) of the
Underwriting Agreement, the accountants
shall provide comfort letters to the effect that:
(i) They are an independent registered public accounting firm with respect
to the Company and its subsidiaries within the meaning of the Securities Act and
the applicable rules and regulations thereunder adopted by the Commission;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) audited by them and included or
incorporated by reference in the Registration Statement as amended, the Time of
Sale Prospectus and the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Securities Act or the
Exchange Act, as applicable, and the related rules and regulations thereunder;
and, if applicable, they have made a review in accordance with standards
established by the Public Company Accounting Oversight Board ("PCAOB") of the
consolidated interim financial statements, selected financial data, pro forma
financial information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letters, as indicated in their reports thereon, copies of
which have been separately furnished to the representative or representatives of
the Underwriters (the "REPRESENTATIVES"), such term to include an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives;
(iii) They have made a review in accordance with standards established by
the PCAOB of the unaudited condensed consolidated statements of income,
consolidated balance sheets, consolidated statements of cash flows and
consolidated statements of comprehensive income included in the Time of Sale
Prospectus and the Prospectus and/or included in the Company's Quarterly Reports
on Form 10-Q incorporated by reference into the Time of Sale Prospectus and the
Prospectus; and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (v)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act and the Exchange Act and the related rules and regulations, nothing came to
their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Securities Act and
the Exchange Act and the related rules and regulations adopted by the
Commission;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Time of Sale Prospectus and the
Prospectus and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years included or
incorporated by reference in the Company's Annual Reports on Form 10-K for such
fiscal years;
(v) On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Time of Sale Prospectus and the Prospectus,
inquiries of officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and procedures as may
be specified in such letters, nothing came to their attention that caused them
to believe that:
A. (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets, consolidated statements of cash flows and
consolidated statements of comprehensive income included and/or incorporated by
reference in the Time of Sale Prospectus and the Prospectus and included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in the Time
of Sale
Schedule IV-1
Prospectus and the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Securities Act and the
Exchange Act and the rules and regulations adopted by the Commission, or (ii)
any material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets, consolidated
statements of cash flows and consolidated statements of comprehensive income
included in the Time of Sale Prospectus and the Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in the Time
of Sale Prospectus and the Prospectus for them to be in conformity with
generally accepted accounting principles;
B. any other unaudited income statement data and balance sheet items
included in the Time of Sale Prospectus and the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements from
which such data and items were derived, and any such unaudited data and items
were not determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year;
C. the unaudited financial statements which were not included in the Time
of Sale Prospectus and the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the Time of Sale
Prospectus and the Prospectus and referred to in clause (B) were not determined
on a basis substantially consistent with the basis for the audited financial
statements included or incorporated by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
D. any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Time of Sale Prospectus and the
Prospectus do not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the rules and regulations
adopted by the Commission thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
E. as of a specified date not more than five days prior to the date of the
letter, there have been any changes in the consolidated capital stock or any
increase in the consolidated long-term debt of the Company and its subsidiaries,
or as of the end of the latest period for which financial statements are
available, any decreases in consolidated net assets, in each case as compared
with amounts shown in the latest balance sheet included or incorporated by
reference in the Time of Sale Prospectus and the Prospectus, except in each case
for changes, increases or decreases which the Time of Sale Prospectus and the
Prospectus discloses have occurred or may occur or which are described in such
letter; and
F. for the period from the date of the latest financial statements
included or incorporated by reference in the Time of Sale Prospectus and the
Prospectus to the end of the last period for which financial statements are
available there were any decreases in consolidated total revenues or the total
amount of consolidated income before extraordinary items or consolidated net
income of the Company and its subsidiaries in each case as compared with the
comparable period of the preceding year, except in each case for increases or
decreases which the Time of Sale Prospectus and Prospectus discloses have
occurred or may occur or which are described in such letters; and
(vi) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Time of Sale Prospectus and the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (v) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives which are
derived from the general accounting records of the Company and its subsidiaries,
which appear in the Time of Sale Prospectus and the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement as amended specified by the
Representatives or in documents incorporated by reference in the Time of Sale
Prospectus and the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and
Schedule IV-2
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Schedule IV to the Prospectus shall be deemed to
refer to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) as defined in the
Underwriting Agreement. All
references in this Schedule IV to the Time of Sale Prospectus shall be deemed to
refer to the Time of Sale Prospectus and any amendment or supplement thereto
(including the documents incorporated by reference therein) as defined in the
Underwriting Agreement.
Schedule IV-3