EXHIBIT 1.B
AMERICAN GENERAL FINANCE CORPORATION
MEDIUM-TERM NOTES, SERIES F
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
November 1, 1999
First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Xxxxxx Brothers Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx, 34 th Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
AMERICAN GENERAL FINANCE CORPORATION, an Indiana corporation (the
"Company"), confirms its agreement with each of you (each an "Agent" and
together the "Agents") with respect to the issue and sale by the Company of its
Medium-Term Notes, Series F described herein (the "Notes"). The Notes are to be
issued pursuant to an Indenture, dated as of May 1, 1999 (as amended or modified
from time to time, the "Indenture"), between the Company and Citibank, N.A. (the
"Trustee"). As of the date hereof, the Company has authorized the issuance and
sale of up to $3,000,000,000 aggregate principal amount of Notes pursuant to the
terms of this Agreement or a Distribution Agreement dated November 1, 1999 (the
"Affiliated Agent Distribution Agreement") between the Company and American
General Securities Incorporated ("AGSI"), an affiliate of the Company registered
with the Securities and Exchange Commission (the "Commission") as a
broker-dealer pursuant to Section 15(b) of the Securities Exchange Act of 1934
(the "1934 Act"). It is understood, however, that the Company may from time to
time authorize the issuance of additional Notes and that such additional Notes
may be sold through or to the Agents pursuant to the terms of this Agreement or
through AGSI
pursuant to the Affiliated Agent Distribution Agreement, all as though the
issuance of such Notes were authorized as of the date hereof. If the Company
sells debt securities other than the Notes pursuant to the Registration
Statement (as defined below), the aggregate principal amount of Notes that may
be sold pursuant to the Registration Statement will be reduced.
This Agreement provides both for the sale of Notes by the Company to one
or more Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Company directly to investors (as may from time to time
be agreed to by the Company and the applicable Agent), in which case the
applicable Agent will act as an agent of the Company in soliciting offers for
the purchase of Notes.
The Company has filed with the Commission a registration statement on Form
S-3 (Registration No. 333-83449) for the registration of $3,000,000,000
aggregate principal amount of debt securities, including the Notes, under the
Securities Act of 1933 (the "1933 Act") and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"). Such registration statement has
been declared effective by the Commission and the Indenture has been qualified
under the Trust Indenture Act of 1939 (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit) and
the prospectus constituting a part thereof, together with any prospectus
supplements or pricing supplements relating to the Notes, including all
documents incorporated therein by reference, as from time to time amended or
supplemented by the filing of documents pursuant to the 1934 Act or the 1933 Act
or otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus shall be
provided to the Agents by the Company for use in connection with the offering of
the Notes which is not required to be filed by the Company pursuant to Rule
424(b) of the 1933 Act Regulations, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the Agents
for such use. The term "Prospectus" shall not, however, include any prospectus
supplement which relates solely to an offering of debt securities of the Company
other than the Notes. If the Company files a registration statement with the
Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to the
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. For purposes of this Agreement, all references to the
Registration Statement and Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "disclosed", "contained", "included" or "stated" (or
other references of like import) in the Registration Statement or Prospectus
shall be deemed to include all such financial statements and schedules and other
information which is incorporated by reference in the Registration Statement or
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or Prospectus shall be
deemed to include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement or Prospectus, as the
case may be.
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SECTION 1. APPOINTMENT AS AGENT.
(a) APPOINTMENT OF AGENT; PURCHASES AS PRINCIPAL. Subject to the terms and
conditions stated herein and subject to the reservation by the Company of the
right to sell Notes directly on its own behalf and through or to other dealers
or agents (including, without limitation, AGSI), the Company hereby (i) appoints
each Agent as a nonexclusive agent for the purpose of soliciting purchases of
the Notes from the Company by others and (ii) agrees that whenever the Company
determines to sell Notes directly to one or more of the Agents as principal for
resale to others, it will enter into a Terms Agreement (hereafter defined)
relating to such sale in accordance with the provisions of Section 3(b) hereof;
PROVIDED, HOWEVER, that no Agent will have any obligation under this Section 1
to purchase Notes from the Company as principal; and PROVIDED FURTHER, that any
sales of Notes through or to other dealers or agents that are not affiliates of
the Company will be made substantially in accordance with the terms of this
Agreement.
(b) REASONABLE EFFORTS SOLICITATIONS; RIGHT TO REJECT OFFERS. Upon receipt
of instructions from the Company, each Agent will use its reasonable efforts to
solicit offers to purchase such principal amount of the Notes as the Company and
such Agent shall agree upon from time to time during the term of this Agreement,
it being understood that the Company shall not approve the solicitation of
offers to purchase Notes in excess of the amount which shall be authorized by
the Company from time to time or in excess of the principal amount of the Notes
registered pursuant to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the aggregate principal
amount of Notes sold or of otherwise monitoring the availability of Notes for
sale under the Registration Statement. Each Agent will communicate to the
Company, orally or in writing, each offer to purchase Notes, other than those
offers rejected by such Agent. Each Agent shall have the right, in its
reasonably exercised discretion, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of that
Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part. Each Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company, but such Agent shall not have any liability to the
Company in the event any such purchase is not consummated for any reason.
(c) RELIANCE. The Company and the Agents agree that any Notes the
placement of which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether through an Agent as agent or to an Agent as
principal), as of the date of each delivery of Notes (whether through an Agent
as agent or to an Agent as principal) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of the times referred to in Section 7(b) hereof, as follows:
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(i) DUE INCORPORATION AND QUALIFICATION. The Company has been duly
incorporated and is validly existing as a corporation under the laws of
the State of Indiana with corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases substantial properties or conducts business,
and where the failure to so 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.
(ii) SUBSIDIARIES. Each of the Company's subsidiaries has been duly
incorporated and is validly existing as a business corporation or an
insurer, as the case may be, in good standing under the laws of its
jurisdiction of incorporation ("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), has corporate power
and authority to own or lease its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business 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 of the Company's
subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable, and (except for directors' qualifying shares) are
owned, directly or indirectly, by the Company, free and clear of all liens
and encumbrances.
(iii) LICENSES AND PERMITS. The Company and each of its subsidiaries
has all required authorizations, approvals, orders, licenses, certificates
and permits of and from all governmental regulatory officials and bodies
(including, without limitation, each insurance regulatory authority having
jurisdiction over the Company or any insurance subsidiary of the Company)
to own or lease its properties and conduct its business as described in
the Prospectus, except such authorizations, approvals, orders, licenses,
certificates and permits which, if not obtained, would not have a material
adverse effect on the business of the Company and its subsidiaries taken
as a whole, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such authorization, approval, order, license,
certificate or permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially adversely
affect the business of the Company and its subsidiaries taken as a whole.
(iv) REGISTRATION STATEMENT AND PROSPECTUS. At the time the
Registration Statement became effective, the Registration Statement and
the Indenture complied, and as of the applicable representation date
referred to in Section 2(a) hereof will comply, in all material respects
with the applicable requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the
Commission promulgated thereunder. The Registration Statement, at the time
it became effective, did
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not, and at each time thereafter at which any post-effective amendment
thereto filed under the 1933 Act becomes effective and at which any Annual
Report on Form 10-K is filed by the Company with the Commission and as of
each applicable representation date referred to in Section 2(a) hereof,
will not, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus delivered to the
applicable Agent(s) for use in connection with the offering of Notes is
identical to the electronically transmitted copy thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T; and as of the date hereof, at the date of the Prospectus and of each
amendment or supplement thereto, and as of each representation date
referred to in Section 2(a) hereof, the Prospectus did not and 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; PROVIDED,
HOWEVER, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Agent expressly for use in the
Registration Statement or Prospectus or to that part of the Registration
Statement which constitutes the Trustee's Statement of Eligibility under
the 1939 Act (Form T-1).
(v) INCORPORATED DOCUMENTS. The documents incorporated or deemed to
be incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied or when so filed will
comply in all material respects with the requirements of the 1934 Act and
the rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus at the date hereof, at the date of the Prospectus and at each
representation date referred to in Section 2(a), did not and 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; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Agent expressly for
use in the Prospectus or such documents.
(vi) FINANCIAL STATEMENTS. The financial statements (including the
notes thereto) and any supporting schedules of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its consolidated subsidiaries as at
the dates indicated and the consolidated results of their operations for
the periods specified; except as stated therein, such financial statements
have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved; and such supporting schedules present fairly in accordance with
GAAP the information required to be stated therein.
(vii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, THE INDENTURE
AND THE Notes. This Agreement has been duly authorized, executed and
delivered by the Company and, upon execution and delivery by each Agent,
will be a valid and legally binding agreement of the Company. The
Indenture has been duly qualified under the 1939 Act, has been
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duly authorized, executed and delivered by the Company and constitutes a
valid and legally binding instrument of the Company, enforceable against
the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws of general applicability relating
to or affecting enforcement of creditors' rights or by general equity
principles. The Notes have been duly authorized by all necessary action by
the Board of Directors, and by the Terms and Pricing Committee of the
Board of Directors, of the Company, and, when the variable terms of the
Notes have been established by any two of the authorized officers to whom
such authority has been delegated and the same have been executed,
authenticated and delivered pursuant to the provisions of this Agreement
and the Indenture against payment of the consideration therefor specified
in the Prospectus or pursuant to any Terms Agreement (hereinafter
defined), the Notes will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
laws of general applicability relating to or affecting enforcement of
creditors' rights or by general equity principles, and will be entitled to
the benefits of the Indenture. The Notes and the Indenture will be
substantially in the forms heretofore delivered to each Agent and conform
in all material respects to all statements relating thereto contained in
the Prospectus.
(viii) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since the
respective dates as of which information is given in the Registration
Statement and Prospectus, except as may otherwise be stated therein or
contemplated thereby, (a) there has been no material adverse change nor
any development or event involving a prospective material adverse change
in the business, financial condition or results of operations of the
Company and its subsidiaries considered as a whole, whether or not arising
in the ordinary course of business; and (b) there have not been any
transactions entered into by the Company or any of its subsidiaries, other
than transactions in the ordinary course of business or transactions which
are not material in relation to the Company and its subsidiaries taken as
a whole.
(ix) NO DEFAULTS; REGULATORY APPROVALS. 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, 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 execution and delivery of this
Agreement and the Indenture and the consummation of the transactions
contemplated herein, therein and pursuant to any applicable Terms
Agreement have been duly authorized by all necessary corporate action and
will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound or to which any of
the property or assets of the Company or any such subsidiary is subject,
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 or, to the best
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knowledge of the Company, any law, administrative regulation or
administrative or court order or decree.
(x) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set forth in the
Registration Statement and Prospectus, there are no legal or governmental
proceedings pending or to the best of the Company's knowledge, threatened
to which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is subject, which
individually or in the aggregate, are expected to have a material adverse
effect on the business, financial condition or results of operations of
the Company and its subsidiaries taken as a whole, or which reasonably
could be expected to materially and adversely affect the properties or
assets thereof, or which reasonably could be expected to materially and
adversely affect the consummation of this Agreement. There are no
contracts or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been so filed.
(xi) NO AUTHORIZATION, APPROVAL OR CONSENT REQUIRED. No
authorization, approval or consent of any court or governmental authority
or agency is necessary in connection with the sale of the Notes hereunder,
except such as have been previously obtained or as may hereafter be
required under the 1933 Act or the 1933 Act Regulations or state
securities or "Blue Sky" or insurance laws.
(xii) INVESTMENT COMPANY ACT OF 1940 NOT APPLICABLE. The Company is
not, and after giving effect to the issue and sale of the Notes, will not
be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(xiii) COMMODITY EXCHANGE ACT. The Notes, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules and
regulations of the Commodity Futures Trading Commission under the
Commodity Exchange Act.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer of
the Company and delivered to the Agents or to counsel for the Agents in
connection with the solicitation of offers to purchase Notes or the sale of
Notes to an Agent or Agents pursuant to a Terms Agreement shall be deemed a
representation and warranty by the Company to each Agent or to the Agent or
Agents who have entered into such Terms Agreement, as the case may be, as to the
matters covered thereby on the date of such certificate and at each
representation date referred to in Section 2(a) hereof subsequent thereto.
SECTION 3. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent individually agrees, as an agent of the Company, to use its
reasonable efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of
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time or permanently. Upon receipt of instructions from the Company, each Agent
will forthwith suspend solicitation of offers to purchase the Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent, as consideration for the sale of
each Note resulting from a solicitation made or an offer to purchase received by
it, a commission in the form of a discount from the purchase price of such Note
in an amount and manner to be agreed to by the Company and such Agent, which
amount may not exceed the percentage of the principal amount of such Note as set
forth in Exhibit A hereto.
All Notes sold through an Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed to by the Company and such Agent.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to one or more Agents,
individually or in a syndicate, as principal shall be made in accordance with
the terms contained herein and (unless the Company and the applicable Agent or
Agents shall otherwise agree) pursuant to a separate agreement which will
provide for the sale of such Notes to, and the purchase and reoffering thereof
by, such Agent or Agents. Each such separate agreement (which may be an oral
agreement and confirmed in writing) is herein referred to as a "Terms
Agreement". Unless the context otherwise requires, each reference contained
herein to "this Agreement" shall be deemed to include any applicable Terms
Agreement between the Company and one or more Agents. Each such Terms Agreement,
whether oral (and confirmed in writing, which may be by facsimile transmission)
or in writing, shall be with respect to such information (as applicable) as is
specified in Exhibit B hereto. Any Agent's commitment to purchase Notes pursuant
to any Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth, except as may be provided
in such Terms Agreement. Each Terms Agreement shall specify the principal amount
of Notes to be purchased by the Agent or Agents pursuant thereto, the price to
be paid to the Company for such Notes, the time and place of delivery of and
payment for such Notes and such other provisions (including further terms of the
Notes) as may be mutually agreed upon. Each Agent is authorized to engage the
services of any broker or dealer in connection with the resale of the Notes
purchased pursuant to any such Terms Agreement and may reallow to any broker or
dealer a portion of the discount or commission payable pursuant hereto. Such
Terms Agreement shall also specify the requirements for the officer's
certificate, opinions of counsel and comfort letter pursuant to Sections 7(b),
7(c) and 7(d) hereof, respectively, and with respect to any stand-off agreement
pursuant to Section 4(k) hereof, and with respect to any opinions pursuant to
Section 5(e) hereof.
If the Company and two or more Agents enter into a Terms Agreement and one
or more of such Agents shall fail at the Settlement Date to purchase the Notes
which it or they are obligated to purchase (the "Defaulted Notes"), then the
nondefaulting Agents shall have the right, within 24 hours thereafter, to make
arrangements for one of them or one or more other Agents or underwriters to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period,
then:
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(i) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be so purchased
by all of such Agents on the Settlement Date, the nondefaulting Agents
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective initial underwriting
obligations bear to the underwriting obligations of all nondefaulting
Agents; or
(ii) if the aggregate principal amount of Defaulted Notes exceeds
10% of the aggregate principal amount of Notes to be so purchased by all
of such Agents on the Settlement Date, such Terms Agreement shall
terminate without liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting
Agent from liability in respect of its default. In the event of any such
default, either the nondefaulting Agents or the Company shall have the right to
postpone the Settlement Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
(c) PRICING SUPPLEMENT; ADMINISTRATIVE PROCEDURES. The purchase price,
interest rate or interest rate basis(es) or formula, maturity date and other
terms with respect to specific Notes shall be agreed upon by the Company and the
applicable Agent and set forth in a pricing supplement to the Prospectus (a
"Pricing Supplement") to be prepared by the Company in connection with each sale
of Notes. Except as may be otherwise provided in the applicable Pricing
Supplement, the Notes will be issued in denominations of $1,000 and integral
multiples thereof. Administrative Procedures with respect to the sale of Notes
shall be agreed upon from time to time by the Agents and the Company (the
"Procedures"). The Agents and the Company agree to perform the respective duties
and obligations specifically provided to be performed by them in the Procedures.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify each Agent
immediately (i) of the effectiveness of any post-effective amendment to the
Registration Statement filed under the 1933 Act, (ii) of the transmittal to the
Commission for filing of any supplement to the Prospectus filed under the 1933
Act (excluding, however, any Pricing Supplement or any prospectus supplement
which relates solely to any offering of debt securities other than the Notes) or
any document to be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement or the Prospectus,
including any documents incorporated therein by reference, (iv) of any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and (v)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is
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issued, to obtain the lifting thereof at the earliest possible moment. In
addition, the Company will notify each Agent if the rating assigned to any
long-term debt securities of the Company by any nationally recognized
statistical rating organization engaged by the Company to provide such rating
shall have been lowered.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give each Agent
notice of its intention to file or prepare any additional registration
statements with respect to the registration of additional Notes, any amendment
to the Registration Statement (including any Rule 462(b) Registration Statement)
or any amendment or supplement to the Prospectus (other than a Pricing
Supplement or any amendment or supplement to the Prospectus which relates
exclusively to an offering of debt securities of the Company other than the
Notes), whether by the filing of documents pursuant to the 1934 Act, the 1933
Act or otherwise, and will furnish each Agent with copies of any such amendment
or supplement or other documents proposed to be filed or prepared a reasonable
time in advance of such proposed filing or preparation, as the case may be.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The Company
will deliver to each Agent as many conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto filed under the
1933 Act (including exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the Prospectus) as such Agent
may reasonably request. The Company will furnish to each Agent as many copies of
the Prospectus (as amended or supplemented) as such Agent shall reasonably
request so long as such Agent is required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes. The Registration
Statement, the Prospectus and any amendments or supplements thereto furnished to
the Agents will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) PREPARATION AND FILING OF PRICING SUPPLEMENTS. The Company will
prepare, with respect to any Notes to be sold through or to one or more Agents
pursuant to this Agreement, a Pricing Supplement with respect to such Notes in a
form previously approved by the Agents and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the Commission on the fifth business day after the date on which
such Pricing Supplement is first used.
(e) PROSPECTUS REVISIONS -- MATERIAL CHANGES. Except as otherwise provided
in subsection (l) of this Section, if at any time during the term of this
Agreement any event shall occur or condition exist as a result of which it is
necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or to further amend or supplement the
Prospectus in order that the Prospectus 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 not misleading in the light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of any of such counsel, to amend or
supplement the Registration Statement or the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, immediate notice
shall be given, and confirmed in writing, to each Agent to cease the
solicitation of offers
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to purchase the Notes in such Agent's capacity as agent and to cease sales of
any Notes such Agent may then own as principal pursuant to a Terms Agreement,
and the Company will promptly prepare and file with the Commission such
amendment or supplement, whether by filing documents pursuant to the 1934 Act,
the 1933 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus comply with
such requirements.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except as
otherwise provided in subsection (l) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Company with respect to any of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to each
Agent, confirmed in writing, and shall cause the Prospectus to be amended or
supplemented, whether by the filing of documents pursuant to the 1934 Act, the
1933 Act or otherwise, to include or incorporate by reference capsule financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(g) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (l) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited consolidated financial statements of the
Company for the preceding fiscal year, the Company shall cause the Registration
Statement and the Prospectus to be amended, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, to include or incorporate
by reference such audited consolidated financial statements and the report or
reports, and consent or consents to such inclusion or incorporation by
reference, of the independent auditors with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding of
such financial statements or as shall be required by the 1933 Act or the 1933
Act Regulations.
(h) EARNINGS STATEMENT. The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the 0000 Xxx) covering each twelve month
period beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in such Rule 158)
of the Registration Statement with respect to each sale of Notes.
(i) "BLUE SKY" QUALIFICATIONS. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities and insurance laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such qualifications
in effect for as long as may be required for the distribution of the Notes;
PROVIDED, HOWEVER, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will promptly
advise each Agent of the receipt by the Company of any notification
11
with respect to the suspension of the qualification of the Notes for sale in any
such state or jurisdiction or the initiating or threatening of any proceeding
for such purpose.
(j) 1934 ACT FILINGS. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
(k) STAND-OFF AGREEMENT. If required pursuant to the terms of a Terms
Agreement, between the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without the prior consent
of the Agent or Agents who have entered into such Terms Agreement, offer or
sell, or enter into any agreement to sell, any debt securities of the Company
(other than the Notes that are to be sold pursuant to such Terms Agreement and
commercial paper in the ordinary course of business), except as may otherwise be
provided for in any such Terms Agreement.
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be required
to comply with the provisions of subsections (e), (f) or (g) of this Section
during any period from the time the Agents shall have suspended solicitation of
offers to purchase the Notes in their capacity as agents pursuant to a request
from the Company to the time the Company shall determine that solicitation of
offers to purchase the Notes should be resumed or shall subsequently enter into
a new Terms Agreement with one or more of the Agents; PROVIDED, HOWEVER, that
compliance with such subsections shall be required for any portion of such
period during which one or more of the Agents shall hold, as principal, any
Notes purchased pursuant to a Terms Agreement, if so requested by any such
Agent.
SECTION 5. CONDITIONS OF OBLIGATIONS.
Each Agent's obligations to solicit offers to purchase the Notes as agent
of the Company, the obligations of any purchaser of Notes sold through an Agent
as agent, and any one or more Agent's obligations to purchase Notes pursuant to
any Terms Agreement, will be subject to the accuracy of the representations and
warranties on the part of the Company herein contained and to the accuracy of
the statements of the Company's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement
(including any Rule 462(b) Registration Statement) shall be effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or shall be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Agents.
(b) LEGAL OPINIONS. On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents:
12
(1) OPINION OF GENERAL COUNSEL OF THE COMPANY. The opinion of the General
Counsel or an Associate General Counsel of the Company (the "General Counsel"),
to the effect that:
(i) Each of the subsidiaries of the Company has been duly
incorporated and is validly existing as a business corporation or an
insurer, as the case may be, and is in good standing under the laws of its
jurisdiction of incorporation; 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. Each of the subsidiaries of the Company has corporate
power and authority to own or lease its properties and conduct its
business as described in the Registration Statement; 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 of the
Company's subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable, and (except for directors' qualifying
shares) are owned, directly or indirectly, by the Company, free and clear
of all liens and encumbrances; and, to the knowledge of such counsel, the
Company and each of its subsidiaries has all required authorizations,
approvals, orders, licenses, certificates and permits of and from all
governmental regulatory officials and bodies (including, without
limitation, each insurance regulatory authority having jurisdiction over
the Company or any insurance subsidiary of the Company) to own or lease
its properties and to conduct its business as described in the Prospectus,
except such authorizations, approvals, orders, licenses, certificates and
permits which, if not obtained, would not have a material adverse effect
on the business of the Company and its subsidiaries taken as a whole (such
counsel being entitled to rely in respect of the opinion in this clause
(i) upon opinions (in form and substance satisfactory to the Agents) of
local counsel and of counsel for the subsidiaries, such counsel being
acceptable to counsel for the Agents, copies of which shall be furnished
to each Agent; and in respect of matters of fact upon certificates of
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 and certificates);
(ii) There are no legal or governmental proceedings pending or, to
the best knowledge of such counsel, threatened of a character which are
required to be disclosed in the Registration Statement and Prospectus,
other than as disclosed therein; to the best knowledge of such counsel,
there are no contracts, indentures, mortgages, deeds of trust, loan
agreements or other documents of a character required to be described in
the Registration Statement or Prospectus (or required
13
to be filed under the 1934 Act if upon such filing they would be
incorporated by reference therein) or to be filed as exhibits to the
Registration Statement that are not described and filed as required;
(iii) 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 Notes, the
compliance by the Company with all of the provisions of the Notes, the
Indenture, this Agreement (and, if the opinion is being given pursuant to
Section 7(c) hereof as a result of the Company having entered into a Terms
Agreement requiring such opinion, the applicable Terms 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 indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument for money
borrowed to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, or (B) result in any violation of (x) the provisions of the
Restated Articles of Incorporation, as amended, or the Amended and
Restated By-Laws of the Company or (y) any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties, in any manner which, in the case of clauses (A)
and (B)(y), would have a material adverse effect on the business of the
Company and its subsidiaries taken as a whole (such counsel being entitled
to rely in respect of the opinion in this clause (iii) with respect to
subsidiaries upon opinions (in form and substance satisfactory to the
Agents) of counsel for the subsidiaries, such counsel being acceptable to
counsel for the Agents, copies of which shall be furnished to each Agent,
provided that such counsel shall state that he or she believes that he or
she is justified in relying upon such opinions); and
(iv) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the
Company of the other transactions contemplated by this Agreement (and, if
the opinion is being given pursuant to Section 7(c) hereof as a result of
the Company having entered into a Terms Agreement requiring such opinion,
the applicable Terms Agreement) or the Indenture, except such as may be
required under the 1933 Act and the 1939 Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or "Blue Sky" or insurance laws.
(2) OPINION OF SPECIAL COUNSEL TO THE COMPANY. The opinion or opinions of
Xxxxx & Xxxxxxx, special counsel to the Company (the "Special Counsel"), to the
effect that:
14
(i) The Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Indiana;
(ii) The Company has the corporate power and authority to own its
properties and conduct its business as described in the Registration
Statement;
(iii) This Agreement (and, if the opinion is being given pursuant to
Section 7(c) hereof as a result of the Company having entered into a Terms
Agreement requiring such opinion, the applicable Terms Agreement) has been
duly authorized, executed and delivered by the Company;
(iv) 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 Company in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other laws of general applicability relating to or affecting
enforcement of creditors' rights or by general equity principles;
(v) The form of the Notes to be issued has been authorized in or
pursuant to the Indenture, the Notes have been duly authorized by all
necessary action by the Board of Directors, and by the Terms and Pricing
Committee of the Board of Directors, of the Company and, when the variable
terms of the Notes have been established by any two of the authorized
officers to whom such authority has been delegated and the Notes have been
executed and authenticated as specified in the Indenture and delivered
against payment of the consideration therefor determined in accordance
with this Agreement (and, if the opinion is being given pursuant to
Section 7(c) hereof as a result of the Company having entered into a Terms
Agreement requiring such opinion, in accordance with the applicable Terms
Agreement), (A) the Notes will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other laws of general
applicability relating to or affecting enforcement of creditors' rights or
by general equity principles, and (B) each holder of Notes will be
entitled to the benefits of the Indenture;
(vi) The information in the Prospectus under the captions
"Description of the Notes", "United States Federal Income Taxation", and
"Description of 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 us
and is correct in all material respects;
(vii) The Indenture is qualified under the 1939 Act;
15
(viii) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or threatened
by the Commission;
(ix) The Registration Statement (other than the financial
statements, supporting schedules and other financial data included or
incorporated by reference therein or the Statement of Eligibility 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 1933 Act,
the 1939 Act and the respective rules and regulations thereunder;
(x) The Company is not, and after giving effect to the issue and
sale of the Notes, will not be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended; and
(xi) The documents incorporated by reference in the Prospectus
(other than the financial statements, supporting schedules and other
financial data 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 1934 Act and the
1934 Act Regulations.
In giving such opinion, Xxxxx & Xxxxxxx may rely as to matters of New York
law upon the opinion of Xxxxx & Wood LLP referred to in subparagraph (b)(3) of
this Section.
(3) OPINION OF COUNSEL TO THE AGENTS. The opinion of Xxxxx & Xxxx
LLP, counsel to the Agents, covering the matters referred to in
subparagraph (b)(2) of this Section under the subheadings (i) and (iii)
through (ix), inclusive. In giving such opinion, Xxxxx & Wood LLP may rely
as to matters of Indiana law upon the opinion of Xxxxx & Xxxxxxx referred
to in subparagraph (b)(2) of this Section.
(4) In giving their opinions required by subparagraphs (b)(2) and
(b)(3) of this Section, Xxxxx & Xxxxxxx and Xxxxx & Xxxx LLP shall each
additionally state that nothing has come to such counsel's attention that
would lead such counsel to believe that the Registration Statement (other
than the financial statements, supporting schedules and other financial
data contained or incorporated by reference therein or omitted therefrom
and for the Statement of Eligibility filed as an exhibit thereto, as to
which such counsel need not comment), at the time it became effective, or
if a post-effective amendment to the Registration Statement under the 1933
Act or an annual report on Form 10-K under the 1934 Act has been filed by
the Company with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time the most recent such amendment
became effective or the most recent such Form 10-K was filed, as the case
may be (and, if the opinion is being given pursuant to Section 7(c) hereof
as a result of the Company having entered into a Terms Agreement requiring
such opinion, as of the date of such Terms Agreement), contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the
16
statements therein not misleading or that the Prospectus (other than the
financial statements, supporting schedules and other financial data
included or incorporated by reference therein or omitted therefrom, as to
which such counsel need not comment), as amended or supplemented at the
date of this Agreement (or, if the opinion is being given pursuant to
Section 7(c) hereof, as amended or supplemented at the date of such
opinion and, if being given as a result of the Company having entered into
a Terms Agreement requiring such opinion, as amended or supplemented at
the date of such Terms Agreement and the Settlement Date with respect
thereto), 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.
(c) OFFICER'S CERTIFICATE. At the date hereof (and at each Settlement Date
if called for under any Terms Agreement), each Agent shall have received a
certificate signed by the Chairman, the President or a Vice President of the
Company, dated as of the date hereof (or such Settlement Date), to the effect
that (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of such Terms
Agreement, as applicable, there has not been any material adverse change nor any
development or event involving a prospective material adverse change in the
business, financial condition, or results of operations of the Company and its
subsidiaries considered as a whole, whether or not arising in the ordinary
course of business; (ii) the other representations and warranties of the Company
contained in Section 2 hereof are true and correct with the same force and
effect as though expressly made at and as of the date of such certificate; (iii)
the Company has performed or complied with all agreements and satisfied all
conditions on its part to be performed or satisfied pursuant to this Agreement
at or prior to the date of such certificate; and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(d) COMFORT LETTER. On the date hereof and at each Settlement Date with
respect to any Terms Agreement if called for by such Terms Agreement, the
independent auditors who have audited the financial statements of the Company
and its subsidiaries included or incorporated by reference in the Registration
Statement shall have furnished to the Agents a letter or letters dated as of the
date hereof or such Settlement Date, as the case may be, in form and substance
reasonably satisfactory to the Agents, to the effect set forth in Exhibit C
hereto.
(e) OTHER DOCUMENTS. On the date hereof and at each Settlement Date with
respect to any applicable Terms Agreement if called for by such Terms Agreement,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of the Notes as herein contemplated and the
related proceedings, or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Notes as herein contemplated shall
be satisfactory in form and substance to the Agents and to counsel to the
Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement, or, at the option of the
applicable Agent or Agents, any Terms Agreement, may be terminated by any Agent
party hereto or the Agent or Agents party to
17
such Terms Agreement by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses under Section
10 hereof, the indemnity and contribution agreements set forth in Sections 8 and
9 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery in Section 11 hereof, the provisions set forth
under "Governing Law" in Section 14 hereof and the provisions set forth under
"Parties" in Section 15 hereof shall remain in effect; PROVIDED, HOWEVER, that
an Agent's termination of this Agreement shall terminate this Agreement only as
between such Agent and the Company.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the respective Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by that Agent
in the performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the period
such funds were credited to the Company's account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with each Agent that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent) and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent) shall be deemed
to be an affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore delivered to the
Agents pursuant hereto are true and correct at the time of such acceptance or
delivery, as the case may be, as though made at and as of each such time (and it
is understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented by a
filing under the 1933 Act (other than by a Pricing Supplement and, unless any
Agent shall otherwise specify, other than by an amendment or supplement which
relates exclusively to an offering of securities other than the Notes), (ii)
there is filed with the Commission under the 1934 Act any document incorporated
by reference into the Prospectus (other than any Current Report on Form 8-K
relating exclusively to the issuance of securities under the Registration
Statement or to quarterly or annual financial results of the Company, in each
case unless any Agent shall otherwise specify), (iii) if required pursuant to
the terms of a Terms Agreement, the Company sells Notes to one or more Agents
pursuant to a Terms Agreement or (iv) if specifically requested by the Agent or
Agents to or through whom the Notes are issued and sold, the Company issues and
sells Notes through or to
18
one or more Agents bearing interest determined by reference to an interest rate
basis or formula not described in the Prospectus in the form first filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, the Company
shall furnish or cause to be furnished to the Agents forthwith a certificate,
dated the date of filing with the Commission of such supplement or document, the
date of effectiveness of such amendment, or the date of such sale, as the case
may be, in form satisfactory to the Agents to the effect that the statements
contained in the certificate referred to in Section 5(c) hereof which was last
furnished to the Agents are true and correct at the time of such amendment,
supplement, filing or sale, as the case may be, as though made at and as of such
time (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(c), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate (it being understood that, in the case of
clause (iii) above, any such certificate shall also include a certification that
there has been no material adverse change or any development or event involving
a prospective material adverse change in the business, financial condition or
results of operations of the Company and its subsidiaries taken as a whole,
whether or not arising in the ordinary course of business, since the date of the
applicable Terms Agreement).
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented by a
filing under the 1933 Act (other than by a Pricing Supplement or an amendment or
supplement providing solely for the inclusion of additional financial
information, and, unless any Agent shall otherwise specify, other than by an
amendment or supplement which relates exclusively to an offering of securities
other than the Notes), (ii) there is filed with the Commission under the 1934
Act any document incorporated by reference into the Prospectus (other than any
Current Report on Form 8-K or Quarterly Report on Form 10-Q, unless any Agent
shall otherwise specify), (iii) if required pursuant to the terms of a Terms
Agreement, the Company sells Notes to one or more Agents pursuant to a Terms
Agreement or (iv) if specifically requested by the Agent or Agents to or through
whom the Notes are issued and sold, the Company issues and sells Notes through
or to one or more Agents bearing interest determined by reference to an interest
rate basis or formula not described in the Prospectus in the form first filed
with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, the
Company shall furnish or cause to be furnished forthwith to the Agents and to
counsel to the Agents written opinions of the General Counsel and Special
Counsel to the Company, or other counsel satisfactory to the Agents, dated the
date of filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form and substance satisfactory to the Agents, of the same tenor as the
opinions referred to in Sections 5(b)(1) and 5(b)(2) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinions; or, in lieu of such
opinions, each respective counsel last furnishing such opinion to the Agents
shall furnish the Agents with a letter to the effect that the Agents may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
19
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented by a
filing under the 1933 Act to include additional financial information or there
is filed with the Commission under the 1934 Act any document incorporated by
reference into the Prospectus which contains additional financial information
(other than any Current Report on Form 8-K relating exclusively to quarterly or
annual financial results of the Company, unless any Agent shall otherwise
specify), or (ii) if required pursuant to the terms of a Terms Agreement, the
Company sells Notes to one or more Agents pursuant to a Terms Agreement, the
Company shall cause the independent auditors who have audited the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Prospectus forthwith to furnish the Agents a letter, dated the
date of filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form satisfactory to the Agents, of the same tenor as the letter referred to
in Section 5(d) hereof, but modified to relate to the Registration Statement and
Prospectus as amended and supplemented to the date of such letter, and with such
changes as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Company; PROVIDED,
HOWEVER, that if the Registration Statement or the Prospectus is amended or
supplemented solely to include financial information as of and for a fiscal
quarter, such auditors may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement unless any other
information included therein of an accounting, financial or statistical nature
is of such a nature that, in the reasonable judgment of any Agent, such letter
should cover such other information.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls any Agent within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
20
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by any Agent), reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) and
(ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Agent expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto), or made in reliance
upon the Statement of Eligibility under the 1939 Act filed as an exhibit to the
Registration Statement.
(b) INDEMNIFICATION OF COMPANY. Each Agent severally agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement (or signs any amendment thereto), and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) GENERAL. Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement or threat of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement or threat thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. In case any such
action shall be commenced or threatened against any indemnified party and it
shall notify the indemnifying party of the commencement or threat thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall desire and so elect within a reasonable time after receipt of such
notification, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party and it being understood that the indemnifying party shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel of
which there shall not be more than one firm in any jurisdiction) for all such
indemnified parties (treating the indemnified party and its controlling persons,
directors and officers referred to in subsections (a) and (b) above,
respectively, to which the provisions of this Section 8 extend as a single
indemnified party for such purpose)), and, after notice from the indemnifying
party to such indemnified party of its
21
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. Whether or not the indemnifying party elects to assume
the defense of any action commenced or threatened in accordance with this
subsection (c), the indemnifying party shall not be liable for any settlement of
such action effected by the indemnified party unless such settlement is effected
with the prior written consent of the indemnifying party.
SECTION 9. CONTRIBUTION.
If the indemnification provided for in Section 8 hereof is for any reason
unavailable to or insufficient to hold harmless a party claiming indemnification
thereunder in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each party against whom indemnification thereunder was
claimed shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by the party claiming indemnification
thereunder, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the applicable
Agents, on the other hand, from the offering of the Notes that were the subject
of the claim for indemnification or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, on the one hand, and the applicable Agent(s),
on the other hand, in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
applicable Agent(s), on the other hand, in connection with the offering of the
Notes that were the subject of the claim for indemnification shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the Company and
the total discount or commission received by each applicable Agent, as the case
may be, bears to the aggregate initial offering price of such Notes.
The relative fault of the Company, on the one hand, and the applicable
Agents, on the other hand, shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact related to information
supplied by the Company or by the applicable Agents and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Agents agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the applicable Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
22
commenced or threatened, or any claim whatsoever based upon any such untrue or
alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. In addition,
in connection with an offering of Notes purchased from the Company by two or
more Agents as principal, the respective obligations of such Agents to
contribute pursuant to this Section 9 are several, and not joint, in proportion
to the aggregate principal amount of Notes that each such Agent purchased from
the Company.
For purposes of this Section, each person, if any, who controls an Agent
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Agent, and each director of the Company, each officer of
the Company who signed the Registration Statement (or signs any amendment
thereto), and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, shall have the same rights to contribution as the
Company.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(i) The preparation and filing of the Registration Statement and any
amendments thereto and the Prospectus and any amendments or supplements
thereto;
(ii) The preparation, filing and reproduction of this Agreement;
(iii) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(iv) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel and of any Calculation Agent;
(v) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and, except
where Notes are sold to one or more Agents acting as principal, incurred
from time to time in connection with the transactions contemplated hereby;
(vi) The qualification of the Notes under securities and insurance
laws in accordance with the provisions of Section 4(i) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Agents in connection therewith and in connection with the preparation of
any Blue Sky Survey and any Legal Investment Survey;
23
(vii) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents of the Prospectus and
any amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Notes;
(viii) The printing (or copying) and delivery to the Agents of
copies of the Indenture (and any supplements and amendments thereto) and
any "Blue Sky" Survey and any Legal Investment Survey;
(ix) Any fees charged by rating agencies for the rating of the
Notes;
(x) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(xi) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company;
(xii) The cost of providing CUSIP or other identification numbers
for the Notes; and
(xiii) The fees and expenses of any Depository (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or any Terms Agreement, or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of any Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement may be terminated for
any reason, at any time by any party hereto upon the giving of 30 days' written
notice of such termination to each other party hereto; PROVIDED, HOWEVER, that
an Agent's termination of this Agreement shall terminate this Agreement only
between such Agent and the Company; and, PROVIDED FURTHER, that the Company may,
if it so elects, terminate this Agreement as between itself and one, some or all
of the Agents by specifying the Agents with respect to which this Agreement is
to be terminated in the written notice of termination.
(b) TERMINATION OF A TERMS AGREEMENT. The applicable Agent or Agents, as
the case may be, may terminate any Terms Agreement, immediately upon notice to
the Company, at any time prior to the Settlement Date relating thereto (i) if
there shall have been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Registration Statement
and Prospectus, any material adverse change or any development or event
involving a prospective material adverse change in the business, financial
condition or results of
24
operations of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business; or (ii) if there shall have
occurred, since the date of such Terms Agreement, any of the following (A) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange or any other exchange on which application shall have been
made to list the Notes, or (B) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State authorities,
or (C) an outbreak or escalation of hostilities or other national or
international calamity or crisis, if the effect of any such event specified in
this clause (ii) in the reasonable judgment of the applicable Agent or Agents
makes it impracticable to proceed with the public offering or the delivery of
the Notes on the terms and in the manner contemplated in the Prospectus; or
(iii) if there shall have occurred, since the date of such Terms Agreement, a
downgrading in the rating accorded the Company's long-term debt securities by
either Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Services.
(c) GENERAL. In the event of any such termination, no party will have any
liability to the other parties hereto, except that (i) the Agents shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of termination an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has not occurred,
the covenants set forth in Sections 4 and 7 hereof shall remain in effect until
such Notes are so delivered, (iii) if at the time of termination any Agent shall
own any Notes purchased pursuant to a Terms Agreement with the intention of
reselling them, the covenants set forth in Sections 4 and 7 hereof shall remain
in effect until the earlier of the time such Notes are resold and nine (9)
months after delivery of written notice of termination, and (iv) the covenant
set forth in Section 4(h) hereof, the indemnity and contribution agreements set
forth in Sections 8 and 9 hereof, and the provisions of Sections 10, 11, 14 and
15 hereof shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the specified address.
If to the Company:
American General Finance Corporation
c/o American General Corporation
0000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Assistant Treasurer - Corporate Finance
Telecopy: (000) 000-0000
If to an agent, to the address specified on the signature page to this
Agreement.
or at such other address as such parties may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
25
SECTION 14. GOVERNING LAW.
This Agreement and all the rights and obligations of the parties created
hereby shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in such
State.
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon each
Agent and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
SECTION 16. EFFECT OF HEADINGS.
The Section headings herein are for convenience only and shall not affect
the construction hereof.
SECTION 17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
among the Agents and the Company in accordance with its terms.
Very truly yours,
AMERICAN GENERAL FINANCE CORPORATION
By:________________________________________
Xxxxx X. Xxxxxx
Vice President and Treasurer
By:________________________________________
Xxxxx X. XxXxxxxxx
Assistant Treasurer
27
Accepted: Address for notices:
FIRST UNION SECURITIES, INC. First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telcopy: (000) 000-0000
By:___________________________________
Name:
Title:
XXXXXX BROTHERS INC. Xxxxxx Brothers Inc.
3 World Financial Center, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Trading Desk
Telcopy: (000) 000-0000
By:___________________________________
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX Xxxxxxx Xxxxx & Co.
INCORPORATED Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: MTN Product Management
Telcopy: (000) 000-0000
By:___________________________________
Name:
Title:
XXXXXXX XXXXX BARNEY INC. Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Product
Management/Origination
Telcopy: (000) 000-0000
By:___________________________________
Name:
Title:
28
EXHIBIT A
As consideration for the services of the Agents hereunder, the Company
shall pay the Agent who places any Note a commission in the form of a discount
from the purchase price of such Note in an amount and manner agreed to by the
Company and such Agent, which amount may not exceed the percentage of the
principal amount of such Note set forth below; PROVIDED, HOWEVER, that this
commission schedule may be revised from time to time by the Company at its sole
discretion, by written notice thereof from the Company to all of the Agents.
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months but less than 1 year...................... 0.125%
From 1 year but less than 18 months..................... 0.150%
From 18 months but less than 2 years.................... 0.200%
From 2 years but less than 3 years...................... 0.250%
From 3 years but less than 4 years...................... 0.350%
From 4 years but less than 5 years...................... 0.450%
From 5 years but less than 6 years...................... 0.500%
From 6 years but less than 7 years...................... 0.550%
From 7 years but less than 10 years..................... 0.600%
From 10 years but less than 15 years.................... 0.625%
From 15 years but less than 20 years.................... 0.700%
From 20 years but less than 30 years.................... 0.750%
From 30 years or more................................... 0.875%
29
EXHIBIT B
The following terms, if applicable, shall be agreed to by the applicable Agent
or Agents and the Company pursuant to each Terms Agreement:
Principal Amount: U.S. $____________
Certificated Notes or Book-Entry Notes:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note
Interest Rate Basis(es):
If LIBOR,
LIBOR Reuters Page:
LIBOR Telerate Page:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
Weekly Average:
Monthly Average:
Designated CMT Maturity Index:
Index Maturity:
Spread, if any:
Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Date(s):
Interest Payment Date(s):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
If redeemable at the option of the Company:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If repayable at the option of the holder thereof:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity:
Purchase Price: ____%, plus accrued interest, if any, from ______
Purchase Price: ____%, plus accrued interest, if any, from ______
30
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the
Distribution Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution
Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution
Agreement.
Opinions pursuant to Section 5(e) of the Distribution Agreement.
31
EXHIBIT C
Pursuant to subsection 5(d) of the Distribution Agreement, the Agents
shall have received from the independent certified public accountants who have
audited the financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus, one or
more letters, each of which shall be to the effect that they are independent
auditors with respect to the Company within the meaning of the 1933 Act and the
applicable published rules and regulations thereunder and which, when read
together, shall be to the further effect that:
(i) In their opinion, the consolidated financial statements audited
by them and included or incorporated by reference in the Registration
Statement and Prospectus comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1934 Act
and the related published rules and regulations thereunder;
(ii) On the basis of performing the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in Statement on Auditing Standards No.
71, Interim Financial Information, on any unaudited financial statements
included or incorporated by reference in the Registration Statement and
Prospectus, a reading of any other unaudited financial statement data
included or incorporated by reference in the Registration Statement and
Prospectus, a reading of the latest available interim unaudited financial
statements of the Company and its subsidiaries ("Interim Financials"), if
any, a reading of any unaudited pro forma financial statements included or
incorporated by reference in the Registration Statement and Prospectus and
a reading of the minutes of the Company's shareholder's meetings, the
meetings of the Board of Directors, the Executive Committee of the Board
of Directors and the Terms and Pricing Committee of the Board of
Directors, since the end of the most recent fiscal year with respect to
which an audit report has been issued and inquiries of and discussions
with certain officials of the Company who have responsibility for
financial and accounting matters with respect to the unaudited financial
statements and any other unaudited financial statement data included or
incorporated by reference in the Registration Statement and Prospectus,
any Interim Financials, and any unaudited pro forma financial statements
included or incorporated by reference in the Registration Statement and
Prospectus, and as to whether (1) as of a specified date not more than
three business days prior to the date of the letter, there was any change
in the consolidated capital stock or any increase in consolidated
long-term debt of the Company and its subsidiaries (except for increases
due to accretion of discount on original issue discount securities, if
any) or any decrease in the consolidated net assets of the Company and its
subsidiaries (before considering the effect of unrealized gains and losses
on debt and equity securities classified as
32
"available for sale" under Statement of Financial Accounting Standards
("SFAS") No. 115) as compared with the amounts shown on the most recent
consolidated balance sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus
(the "Recent Balance Sheet") or (2) during the period, if any, from the
date of the Recent Balance Sheet to the date of the most recent balance
sheet included in the Interim Financials (the "Interim Period") there was
any decrease, as compared with the corresponding period in the preceding
year, in consolidated total revenues or in consolidated net income of the
Company and its subsidiaries, or (3) during the period from the date of
the Interim Financials or, if there are no Interim Financials, from the
date of the Recent Balance Sheet to a specified date not more than three
business days prior to the date of the letter there was any decrease, as
compared with the corresponding period in the preceding year, in
consolidated total revenues or in consolidated net income of the Company
and its subsidiaries, which reading, inquiries and discussions would not
necessarily reveal changes in the financial position or results of
operations or inconsistencies in the application of generally accepted
accounting principles or other matters of significance with respect to the
following, nothing came to their attention that caused them to believe
that (A) any material modifications should be made to the unaudited
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus for
them to be in conformity with generally accepted accounting principles or
that such unaudited financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the 1934
Act and the related published rules and regulations thereunder, (B) the
Interim Financials, if any, are not stated on a basis substantially
consistent with that of the audited consolidated financial statements
included or incorporated by reference in the Registration Statement and
Prospectus, (C) any other unaudited financial statement data included or
incorporated by reference in the Registration Statement and Prospectus do
not agree with the corresponding items in the unaudited financial
statements from which such data were derived or any such unaudited
financial statement data were not determined on a basis substantially
consistent with the corresponding amounts in the audited financial
statements included or incorporated by reference in the Registration
Statement and Prospectus, (D) any unaudited pro forma financial statements
included or incorporated by reference in the Registration Statement and
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X or the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements, (E)(1) as of the date of
the Interim Financials, if any, and as of a specified date not more than
three business days prior to the date of the letter, there was any change
in the consolidated capital stock or any increase in consolidated
long-term debt of the Company and its subsidiaries (except for increases
due to accretion of discount on original issue discount securities, if
any) or any decrease in the consolidated net assets of the Company and its
subsidiaries (before considering the effect of unrealized gains and losses
2
on debt and equity securities classified as "available for sale" under
SFAS No. 115) as compared with the amounts shown on the Recent Balance
Sheet or (2) during any Interim Period, there was any decrease, as
compared with the corresponding period in the preceding year, in
consolidated total revenues or in consolidated net income of the Company
and its subsidiaries, or (3) during the period from the date of the
Interim Financials or, if there are no Interim Financials, from the date
of the Recent Balance Sheet to a specified date not more than three
business days prior to the date of the letter there was any decrease, as
compared with the corresponding period in the preceding year, in
consolidated total revenues or in consolidated net income of the Company
and its subsidiaries except in each such case for (1), (2) and (3) as set
forth in or contemplated by the Registration Statement and Prospectus or
except for such exceptions as may be enumerated in such letter; and
(iii) In addition to the limited procedures referred to in clause
(ii) above, they have carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are derived from the general financial and
accounting records of the Company and its subsidiaries, which are included
or incorporated by reference in the Registration Statement and Prospectus
and which are specified by the Agents and have compared such amounts,
percentages and financial information with the financial and accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
3
