EXHIBIT 1
AMERICAN GENERAL FINANCE CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
American General Finance Corporation, an Indiana corporation (the
"Company"), proposes to issue and sell from time to time certain of its
unsecured, unsubordinated debt securities (the "Debt Securities") registered
under the registration statement referred to in Section 1(a) below. The Debt
Securities will be issued under an indenture, dated as of May 1, 1999 (the
"Indenture"), between the Company and Citibank, N.A., as Trustee (the
"Trustee"). The Debt Securities will be issued in one or more series which may
vary as to aggregate principal amounts, interest rates, maturities, sinking fund
requirements, redemption provisions, selling prices and any other terms which
the Indenture contemplates may be contained in the Debt Securities as issued
from time to time. Particular series of the Debt Securities may be sold pursuant
to a Pricing Agreement substantially in the form set forth in Annex I hereto
(the "Pricing Agreement"), subject to the terms and conditions set forth therein
and herein. The Pricing Agreement will incorporate by reference the provisions
of this Agreement, except as otherwise provided therein.
The Debt Securities that are the subject of a particular Pricing Agreement
are referred to herein as the "Securities." The firm or firms named in Schedule
I to the Pricing Agreement are referred to herein as the "Underwriters," and the
representative or representatives of the Underwriters, if any, specified in the
Pricing Agreement are referred to herein as the "Representatives"; provided,
however, that if the Pricing Agreement does not specify any representative of
the Underwriters, the term "Representatives" shall mean the Underwriters.
As provided in Section 2 below, the Pricing Agreement may authorize the
Underwriters to solicit offers from certain investors to purchase Securities
from the Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"). Securities to be purchased pursuant to Delayed Delivery Contracts
are sometimes referred to herein as "Contract Securities," and Securities to be
purchased by the Underwriters (after giving effect to the deduction, if any, for
Contract Securities) are sometimes referred to herein as "Underwriters'
Securities."
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement (No. 333-_______) on Form S-3 relating
to the Debt Securities, including the Securities, and all post-effective
amendments thereto required to the date of the Pricing Agreement, has been
filed with the Securities and Exchange Commission (the "Commission") in
the form heretofore delivered or to be delivered to the Representatives
(and, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus contained therein on
or prior to the date of the Pricing Agreement, to the Representatives for
each of the other Underwriters) and such registration statement and each
such amendment thereto, if any, has been declared effective by the
Commission and no stop order suspending the effectiveness thereof has been
issued and no proceeding for that purpose has been initiated
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or threatened by the Commission. For purposes of this Agreement, (i) the
term "Registration Statement" shall mean Registration Statement No.
333-_____, including all exhibits thereto and all documents incorporated
by reference therein as of the effective date thereof; and any reference
to the Registration Statement as amended (or similar wording) shall mean
the Registration Statement, including all post-effective amendments
thereto and all documents filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), after the effective date of
the Registration Statement and that are deemed to be incorporated by
reference in the Registration Statement upon the filing of such documents
with the Commission and the information, if any, deemed to be a part
thereof pursuant to Rule 434 under the Securities Act of 1933, as amended
(the "Act"); (ii) the term "Prospectus" shall mean the prospectus,
including all documents incorporated by reference therein as of the date
thereof, relating to the Debt Securities in the form included in the
Registration Statement as of the effective date thereof or, if different,
in the form in which it has most recently been filed or transmitted for
filing with the Commission on or prior to the date of the Pricing
Agreement, as amended or supplemented to reflect the terms of the offering
of the Securities by (A) if the Company elects not to rely on Rule 434
under the Act, the Prospectus Supplement contemplated by Section 3(a)
hereof, in the form in which such Prospectus Supplement is filed with the
Commission pursuant to Rule 424(b) under the Act, in accordance with
Section 3(a) hereof or (B) if the Company elects to rely on Rule 434 under
the Act, the Term Sheet contemplated by Section 3(a) hereof, in the form
in which such Term Sheet is filed with the Commission pursuant to Rule
424(b) (7) under the Act, in accordance with Section 3(a) hereof (and, in
such case, the term "Prospectus" shall include such Term Sheet and the
Rule 434(c) (2) Prospectus referred to in Section 3(a), if any, each
individually and taken together); any reference to the date of the
Prospectus shall be deemed to refer to the date of such Prospectus
Supplement or Term Sheet, as the case may be, and any reference to the
Prospectus as amended or supplemented (or similar wording) shall mean the
Prospectus, including all supplements thereto and all documents filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of the Prospectus and that are
deemed to be incorporated by reference in the Prospectus upon the filing
of such documents with the Commission; and (iii) the term "Preliminary
Prospectus" shall mean any preliminary prospectus, including all documents
incorporated by reference therein as of the date thereof, included in the
Registration Statement prior to the effectiveness thereof or filed with
the Commission pursuant to Rule 424(a) under the Act; and any reference to
any Preliminary Prospectus as amended or supplemented (or similar wording)
shall mean such Preliminary Prospectus, including all documents filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of such Preliminary Prospectus
and that are deemed to be incorporated by reference in the Preliminary
Prospectus upon the filing of such documents with the Commission. If the
Company files a registration statement to register a portion of the
Securities and relies on Rule 462(b) under the Act for such registration
statement to become effective upon filing with the Commission (the "Rule
462(b) Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be to both Registration Statement
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No. 333-_____ (the "original Registration Statement") and the Rule 462(b)
Registration Statement, as each such registration statement may be amended
pursuant to the Act;
(b) The documents incorporated by reference in the Prospectus, as
amended or supplemented, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder, and, when read
together with the other information included or incorporated by reference
in the Prospectus at the time the Registration Statement became effective,
at the time any post-effective amendment thereto became effective and at
the time any annual report on Form 10-K was filed by the Company and
incorporated by reference into the Prospectus, none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
during the period during which delivery of a prospectus is required in
connection with the offering or sale of the Securities, and incorporated
by reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder and, when read together with the other information included or
incorporated by reference in the Prospectus at the time such documents are
filed with the Commission, none of such documents will contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of an Underwriter through the Representatives expressly for use in
the Prospectus;
(c) The Registration Statement, as amended, and the Prospectus, as
amended, conform, and any amendments or supplements thereto filed during
the period during which delivery of a prospectus is required in connection
with the offering or sale of the Securities will conform, in all material
respects to the applicable requirements of the Act, the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder. The Registration Statement, as
amended, and the Prospectus, as amended or supplemented, each as of the
effective date of the Registration Statement, as of the effective date of
each post-effective amendment to the Registration Statement, if any, and
at the time any annual report on Form 10-K was filed by the Company and
incorporated by reference into the Prospectus, did not, as of the date of
the Pricing Agreement do not, and as of the Time of Delivery (as
hereinafter defined) and during the period during which delivery of a
prospectus is required in connection with the offering or sale of the
Securities, will not, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of an Underwriter
through the Representatives expressly for use in the Prospectus, or to the
Statement of Eligibility on Form T-1 (the "Form T-1"), except as to
statements or omissions in such
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Form T-1 made in reliance upon information furnished in writing to the
Trustee by or on behalf of the Company for use therein;
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the business, financial condition, or results
of operations of the Company and its subsidiaries taken as a whole, other
than as set forth or contemplated in the Prospectus as amended or
supplemented, whether or not arising in the ordinary course of business;
(e) The Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Indiana with corporate
power and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases substantial
properties, or conducts business, and where the failure so to qualify and
be in good standing would have a material adverse effect on the business
of the Company and its subsidiaries taken as a whole; each of the
Company's subsidiaries has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, has corporate power and authority to own or lease its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases substantial properties, or conducts business,
and where the failure so to qualify and be in good standing would have a
material adverse effect on the business of the Company and its
subsidiaries taken as a whole; and the Company and each of its
subsidiaries have all required authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental regulatory
officials and bodies (including, without limitation, each insurance
regulatory authority having jurisdiction over the Company or any insurance
subsidiary of the Company) to own or lease its properties and conduct its
business as described in the Prospectus, except such authorizations,
approvals, orders, licenses, certificates and permits which, if not
obtained, would not have a material adverse effect on the business of the
Company and its subsidiaries taken as a whole, and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such authorization, approval, order,
license, certificate or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially
adversely affect the business of the Company and its subsidiaries taken as
a whole;
(f) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable, and (except for any directors' qualifying
shares) are owned, directly or indirectly, by the Company, free and clear
of all liens and encumbrances;
(g) The Securities have been duly authorized (or will have been so
authorized prior to their issuance) and, when executed and authenticated
pursuant to the Indenture and
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issued and delivered against payment therefor pursuant to this Agreement
and the Pricing Agreement (or, in the case of any Contract Securities,
pursuant to the Delayed Delivery Contracts with respect thereto), will be
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company enforceable against
the Company in accordance with their terms and entitled to the benefits of
the Indenture subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Indenture has been duly authorized, executed and delivered
by the Company, and constitutes a valid and legally binding instrument of
the Company, enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Indenture has been duly qualified under the Trust Indenture Act; and the
Securities and the Indenture conform in all material respects with the
descriptions thereof in the Prospectus;
(h) The Pricing Agreement pursuant to which the Securities are being
issued (including the provisions of this Agreement) has been duly
authorized, executed and delivered by the Company;
(i) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been (or will be prior to the Time of Delivery) duly authorized by the
Company and, when executed and delivered by the Company and the purchaser
named therein, will constitute a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and such
Delayed Delivery Contracts will conform in all material respects to the
description thereof in the Prospectus;
(j) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, each
of the Delayed Delivery Contracts, if any, this Agreement and the Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not (i) conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
for money borrowed to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, or (ii) result in any violation of (x) the
provisions of the Restated Articles of Incorporation, as amended, or the
Amended and Restated By-Laws of the Company or (y) to the best knowledge
of the Company, any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties, in any manner which, in
the case of clauses (i) and (ii)(y), would have a material adverse effect
on the business of the Company and its subsidiaries taken as a whole; and
no consent, approval, authorization, order, registration or qualification
of or with any such
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court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, the Pricing Agreement, the
Indenture, or any Delayed Delivery Contract, except such as have been, or
will have been prior to the Time of Delivery, obtained under the Act and
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under "blue sky" or
state securities laws or insurance laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(k) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is subject which, individually or in the
aggregate, are expected to have a material adverse effect on the business,
financial condition, or results of operations of the Company and its
subsidiaries taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(l) The Company is not, and, after giving effect to the issue and
sale of the Securities, will not be, an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
SECTION 2. PURCHASE AND OFFERING OF SECURITIES. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Securities specified therein. The Pricing
Agreement shall specify the aggregate principal amount of the Securities, the
initial public offering price of such Securities, the purchase price to the
Underwriters of such Securities, the names of the Underwriters of such
Securities (subject to substitution as provided by Section 7 herein), the names
of the Representatives of such Underwriters, the principal amount of such
Securities to be purchased by each Underwriter and whether any of such
Securities shall be covered by Delayed Delivery Contracts and the commission
payable to the Underwriters with respect thereto and shall set forth the date,
time and manner of delivery of such Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the Registration Statement and Prospectus) the terms of such Securities. The
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of facsimile communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and the Pricing Agreement shall be several and not joint. Upon the
execution of the Pricing Agreement and authorization by the Representatives of
the release of the Underwriters' Securities, the several Underwriters propose to
offer the Underwriters' Securities for sale upon the terms and conditions set
forth in the Prospectus.
Underwriters' Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement, in definitive form to the extent practicable, and in such
authorized denominations and registered in such names as the Representatives may
request upon at least twenty-four hours prior
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notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor, by certified or
official bank check or checks, payable to the order of the Company or by wire
transfer to a bank account specified by the Company, in the funds specified in
the Pricing Agreement, all at the place and time and date specified in the
Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "Time of Delivery" for the Underwriters' Securities.
Concurrent with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement in the amount of any compensation payable by the Company to
the Underwriters in respect of any Delayed Delivery Contracts as provided in
this Section and in the Pricing Agreement.
The Company may specify in Schedule II to the Pricing Agreement that the
Underwriters are authorized to solicit offers to purchase Securities from the
Company pursuant to Delayed Delivery Contracts, substantially in the form of
Annex III attached hereto but with such changes therein as the Representatives
and the Company may authorize or approve. If so specified, the Underwriters will
endeavor to make such arrangements, and as compensation therefor the Company
will pay to the Representatives, for the accounts of the Underwriters, at the
Time of Delivery such commission, if any, as may be set forth in the Pricing
Agreement. Delayed Delivery Contracts, if any, are to be with investors of the
types described in the Prospectus and subject to other conditions therein set
forth. The Underwriters will not have any responsibility in respect of the
validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement shall be equal to the principal amount of
Contract Securities which the Company has been advised by the Representatives
have been attributed to such Underwriter, provided that, if the Company has not
been so advised, the principal amount of Contract Securities to be so deducted
shall be, in each case, that proportion of Contract Securities which the
principal amount of Securities to be purchased by such Underwriter under the
Pricing Agreement bears to the total principal amount of the Securities (rounded
as the Representatives may determine). The total principal amount of
Underwriters' Securities to be purchased by all the Underwriters pursuant to the
Pricing Agreement shall be the total principal amount of Securities set forth in
Schedule I to the Pricing Agreement less the principal amount of the Contract
Securities. The Company will deliver to the Representatives not later than 3:30
p.m., New York City time, on the second business day preceding the Time of
Delivery (or such other time and date as the Representatives and the Company may
agree upon in writing) a written notice setting forth the names of the investors
with which the making of Delayed Delivery Contracts has been approved by the
Company and the principal amount of Contract Securities to be covered by each
such Delayed Delivery Contract.
SECTION 3. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with each
of the Underwriters:
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(a) Immediately following the execution of the Pricing Agreement, to
prepare (i) if the Company elects not to rely on Rule 434 under the Act,
an amendment or supplement to the prospectus related to the Debt
Securities to reflect the terms of the offering of the Securities (the
"Prospectus Supplement") in a form reasonably approved by the
Representatives, and to file the Prospectus Supplement pursuant to Rule
424(b) (2) or (5) under the Act by 3:00 p.m., New York City time, on the
business day immediately succeeding the date of the Pricing Agreement (or
such other time as shall be specified in the Pricing Agreement), or (ii)
if the Company elects to rely on Rule 434 under the Act, (A) an
abbreviated term sheet relating to the Securities (the "Term Sheet") that
complies with the requirements of Rule 434(c) (3) and (e) under the Act in
a form reasonably approved by the Representatives, and (B) if required by
Rule 434(c) (2) under the Act, a form of Prospectus relating to the
Securities (the "Rule 434(c) (2) Prospectus") complying with Rule 434(c)
(2) under the Act in a form reasonably approved by the Representatives,
and to file such Term Sheet pursuant to Rule 424(b) (7) under the Act, and
any such Rule 434(c) (2) Prospectus pursuant to Rule 424(b) under the Act,
in each case by 3:00 p.m., New York City time, on the business day
immediately succeeding the date of the Pricing Agreement (or such other
time as shall be specified in the Pricing Agreement); except as otherwise
required by law, to make no amendment or supplement to the Registration
Statement or Prospectus after the date of the Pricing Agreement and prior
to the Time of Delivery which shall be reasonably disapproved by the
Representatives promptly after reasonable notice thereof; for so long as
the delivery of a prospectus is required in connection with the offering
or sale of the Securities, to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, and to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus (other than any
supplement or amendment to the Prospectus relating exclusively to a series
of Debt Securities other than the Securities) has been filed or
transmitted for filing with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus (other than any supplement or
amendment to the Prospectus relating exclusively to a series of Debt
Securities other than the Securities) or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities and insurance laws of such
jurisdictions as the Representatives may reasonably request and to comply
with such laws to the extent necessary to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Securities; provided, however, that in
connection therewith the
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Company shall not be required to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified
or to file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in
such quantities as the Representatives may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities and if at such time
any event shall have occurred or condition exist as a result of which the
Prospectus, as it may then be amended or supplemented, would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period, in the opinion of the Representatives
or the Company, to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives of such event, condition, filing, amendment
or supplement and upon the Representatives' request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time
to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than 90 days following the close
of the period covered thereby, an earnings statement, covering a
twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined
in Rule 158 under the Act) of the Registration Statement, of the Company
and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement and continuing to and including the Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company (except that the Company shall have the right to close
during such period the sale of any debt securities under its medium-term
note programs that it had agreed to sell on or before the date of the
Pricing Agreement and of which it had informed the Representatives prior
to their execution of the Pricing Agreement) having an original maturity
of more than one year after such Time of Delivery without the prior
consent of the Representatives; and
(f) The Company shall file in a timely manner all documents required
to be filed with the Commission pursuant to Sections 13 and 14 of the
Exchange Act.
SECTION 4. PAYMENT OF EXPENSES. The Company agrees to pay or cause to be
paid the following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Debt
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
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Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement Among Underwriters, this
Agreement, the Pricing Agreement, the Indenture, any Delayed Delivery Contracts,
any Blue Sky and Legal Investment Memoranda and any other documents in
connection with the offering, purchase, sale and delivery of the Debt
Securities; (iii) all expenses in connection with the qualification of the Debt
Securities for offering and sale under state securities laws as provided in
Section 3(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Debt Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of the Trustee and any
agent of the Trustee; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this Section 4.
It is understood, however, that, except as provided in this Section 4, Section 6
and Section 8 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees and disbursements of their own counsel, transfer
taxes on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters under the Pricing Agreement shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties of the Company in or incorporated by reference in the Pricing
Agreement are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus Supplement or, if the Company shall have elected
to rely on Rule 434 under the Act, the Term Sheet and any Rule 434 (c) (2)
Prospectus required by Rule 434 (c) (2) under the Act, shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed therefor by Section 3(a) hereof; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Brown & Wood LLP, counsel for the Underwriters (or such other
counsel as shall be indicated in the Pricing Agreement), shall have
furnished to the Representatives such opinion or opinions, dated the Time
of Delivery, with respect to the due and valid authorization, execution
and delivery of the Indenture, the Securities and the Delayed Delivery
Contracts, if any, and the Registration Statement, the Prospectus and
other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters (in rendering
such opinion or opinions, Brown & Wood LLP may rely as to matters of
Indiana Law upon the opinions of Baker & Daniels (or other counsel
licensed to practice in the State of Indiana) and of the General Counsel
(or Associate General Counsel) of the Company referred to in subsections
5(c) and 5(d), respectively);
-10-
(c) Baker & Daniels, counsel for the Company (or such other counsel
as shall be indicated in the Pricing Agreement), shall have furnished to
the Representatives their written opinion, dated the Time of Delivery, in
form and substance satisfactory to the Representatives, to the effect
that:
(i) The Company is a corporation duly incorporated and validly
existing under the laws of the State of Indiana, with corporate
power and authority to own its properties and conduct its business
as described in the Prospectus;
(ii) The Pricing Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
(iii) The Indenture (a) 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 legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; (b)
has been duly qualified under the Trust Indenture Act; and (c)
conforms in all material respects to the description thereof in the
Prospectus;
(iv) The Securities (a) have been duly authorized and, when
executed and authenticated pursuant to the Indenture and issued and
delivered against payment therefor pursuant to this Agreement and
the Pricing Agreement (or, in the case of any Contract Securities,
pursuant to the Delayed Delivery Contracts with respect thereto),
will be duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; (b) are in the
form authorized in or pursuant to the Indenture; and (c) conform in
all material respects to the description thereof in the Prospectus;
(v) The Registration Statement is effective under the Act and,
to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission;
(vi) The Registration Statement, at the time it became
effective, and as amended or supplemented as of the date of the
Pricing Agreement (or, if the Company shall have elected to rely on
Rule 434 under the Act, as of the time the Term Sheet was filed with
the Commission pursuant to Rule 424(b) (7) under the Act) (other
than the financial statements and other financial information
included
-11-
therein and the Form T-1, as to which no opinion or belief need be
expressed), appeared on its face to be appropriately responsive in
all material respects to the applicable requirements of the Act, the
Trust Indenture Act and the respective rules and regulations of the
Commission thereunder; and
(vii) The Company is not, and after giving effect to the issue
and sale of the Securities will not be, an "investment company" as
such term is defined in the Investment Company Act.
In addition, such opinion shall also contain a statement that
no facts have come to such counsel's attention that lead them to
believe that the Registration Statement (other than the financial
statements and other financial and statistical data contained
therein and the Form T-1, as to which such counsel need not express
any comment), at the time it became effective, or if an amendment to
the Registration Statement or an annual report on Form 10-K has been
filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time the
most recent such amendment became effective or the most recent such
Form 10-K was filed, as the case may be, and as of the date of the
Pricing Agreement, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (other than the financial statements and other financial
and statistical data contained therein and the Form T-1, as to which
such counsel need not express any comment) as amended or
supplemented to reflect the terms of the offering of the Securities
by the Prospectus Supplement or Term Sheet, as the case may be, and
as amended or supplemented at the Time of Delivery, contains an
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinion, Baker & Daniels may rely as to
matters of New York law upon the opinion or opinions of Brown & Wood
LLP (or other counsel licensed to practice in the State of New York)
referred to in subsection 5(b);
(d) The General Counsel of the Company or, in his absence, an
Associate General Counsel of the Company, shall have furnished to the
Representatives his written opinion, dated the Time of Delivery, in form
and substance satisfactory to the Representatives, to the effect that:
(i) Each of the subsidiaries of the Company has been duly
incorporated and is validly existing as a business corporation or an
insurer, as the case may be, in good standing under the laws of its
jurisdiction of incorporation, provided, however, that "good
standing" means with respect to any corporation incorporated under
the laws of the State of Indiana that such corporation has filed its
most recent annual report required by the laws of the State of
Indiana and Articles of Dissolution have not been filed in the State
of Indiana with respect to such corporation; to the knowledge of
such counsel, the Company and each of its
-12-
subsidiaries has been duly qualified as a foreign corporation for
the transaction of business or licensed to transact business as an
insurance company, as the case may be, and is in good standing under
the laws of each other jurisdiction in which it owns or leases
substantial properties, or conducts business, and where the failure
so to qualify would have a material adverse effect on the business
of the Company and its subsidiaries taken as a whole; all of the
outstanding shares of capital stock of each such subsidiary have
been duly authorized and validly issued, are fully paid and
non-assessable, and (except for any directors' qualifying shares)
are owned, directly or indirectly, by the Company, free and clear of
all liens and encumbrances; and, to the knowledge of such counsel,
the Company and each of its subsidiaries has all required
authorizations, approvals, orders, licenses, certificates and
permits of and from all governmental regulatory officials and bodies
(including, without limitation, each insurance regulatory authority
having jurisdiction over the Company or any insurance subsidiary of
the Company) to own or lease its properties and to conduct its
business as described in the Prospectus, except such authorizations,
approvals, orders, licenses, certificates and permits which, if not
obtained, would not have a material adverse effect on the business
of the Company and its subsidiaries taken as a whole (such counsel
being entitled to rely in respect of the opinion in this clause (i)
upon opinions (in form and substance reasonably satisfactory to the
Representatives) of local counsel and of counsel for the
subsidiaries, such counsel being acceptable to counsel for the
Underwriters, copies of which shall be furnished to the
Representatives; and in respect of matters of fact upon certificates
of officers of the Company or its subsidiaries, provided that such
counsel shall state that he believes that he is justified in relying
upon such opinions and certificates);
(ii) There are no legal or governmental proceedings pending,
or, to the knowledge of such counsel, threatened, of a character
that are required to be disclosed in the Registration Statement and
Prospectus, other than as disclosed therein; to the knowledge of
such counsel, there are no contracts, indentures, mortgages, deeds
of trust, loan agreements or other documents of a character required
to be described in the Registration Statement or Prospectus (or
required to be filed under the Exchange Act if upon such filing they
would be incorporated by reference therein) or to be filed as
exhibits to the Registration Statement that are not described and
filed as required;
(iii) The issue and sale of the Securities, the compliance by
the Company with all of the provisions of the Securities, the
Indenture, each of the Delayed Delivery Contracts, if any, this
Agreement and the Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not (A) conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument for money borrowed
to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its
subsidiaries is subject, or (B) result in any violation of (x) the
provisions of the Restated
-13-
Articles of Incorporation, as amended, or the Amended and Restated
By-Laws of the Company or (y) any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, in any manner which, in the
case of clauses (A) and (B)(y), would have a material adverse effect
on the business of the Company and its subsidiaries taken as a whole
(such counsel being entitled to rely in respect of the opinion in
this clause (iii) with respect to subsidiaries upon opinions (in
form and substance reasonably satisfactory to the Representatives)
of counsel for the subsidiaries, such counsel being acceptable to
counsel for the Underwriters, copies of which shall be furnished to
the Representatives, provided that such counsel shall state that he
believes that he is justified in relying upon such opinions); and
(iv) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities, or the
consummation by the Company of the other transactions contemplated
by this Agreement, the Pricing Agreement, the Indenture, or any
Delayed Delivery Contract, except such as may be required under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under "blue sky" or state securities laws or insurance laws in
connection with the purchase and distribution of the Securities by
the Underwriters.
(e) At the Time of Delivery, the independent certified public
accountants who have audited the consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter or letters dated such Time of Delivery, with respect to such
consolidated financial statements, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in Annex II
hereto;
(f) Since the date of the Pricing Agreement and since the respective
dates as of which information is given in the Prospectus, there shall have
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the business, financial condition,
or results of operations of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, the
effect of which is, in the reasonable judgment of the Representatives, so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Underwriters' Securities
on the terms and in the manner contemplated in the Prospectus;
(g) Subsequent to the date of the Pricing Agreement, no downgrading
shall have occurred in the rating accorded the Company's long-term debt
securities by either Moody's Investors Service, Inc. or Standard & Poor's
Ratings Services;
(h) Subsequent to the date of the Pricing Agreement, there shall not
have occurred any of the following: (i) a suspension or material
limitation in trading in securities
-14-
generally on the New York Stock Exchange or any other exchange on which
application shall have been made to list the Securities; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iii) the outbreak or material
escalation of major hostilities in which the Unites States is involved or
the declaration by the United States of a national emergency or war on or
after the date of such Pricing Agreement, if the effect of any such event
specified in this subsection 5(h), in the reasonable judgment of the
Representatives, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Underwriters' Securities on the
terms and in the manner contemplated in the Prospectus; and
(i) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery, a certificate or certificates
of the Company signed by the Chairman, the President or a Vice President
as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, and as to the matters set forth in the first two
clauses of subsection 5(a) and in subsection 5(f).
SECTION 6. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, as
incurred, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating, preparing for or defending against any such action or
claim, commenced or threatened; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, or any
such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives expressly for use therein; and
provided, further, that the Company shall not be liable to any Underwriter
under the indemnity agreement in this subsection (a) with respect to any
Preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter
sold Underwriters' Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus as then amended or supplemented (excluding documents
incorporated by reference therein) in any case where such delivery is
required by the Act if the Company has previously furnished copies thereof
to such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or
-15-
omission or alleged untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was corrected in the
Prospectus (or the Prospectus as amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities, as incurred, to which
the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Underwriter through the Representatives expressly for use
therein, and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating,
preparing for or defending against any such action or claim, commenced or
threatened.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement or threat of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement or threat thereof, but
the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be commenced or
threatened against any indemnified party and it shall notify the
indemnifying party of the commencement or threat thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish and so elect within a reasonable time after receipt of such
notification, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party and it being
understood that the indemnifying party shall not, in connection with any
one such action or separate but substantially similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (provided that local counsel may be retained to
the extent necessary) for all such indemnified parties (treating the
indemnified party and the persons referred to in subsection (e) below to
which the provisions of this Section 6 shall extend as a single
indemnified party for such purpose)), and, after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. Whether or not the indemnifying party
elects to assume
-16-
the defense of any action commenced or threatened in accordance with this
subsection (c), the indemnifying party shall not be liable for any
settlement of such action effected by the indemnified party unless such
settlement is effected with the prior written consent of the indemnifying
party.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of
the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above or is not entitled to receive the indemnification provided for in
subsection (a) above because of the second proviso thereof, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the
one hand and the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other hand shall be deemed to be
in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission, including, with respect to any Underwriter, the extent to which
such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to any Preliminary Prospectus result from the fact
that such Underwriter sold Underwriters' Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any case where such
delivery is required by the Act, if the Company has previously furnished
copies thereof to such Underwriter and the loss, claim, damage or
liability results from an untrue statement or omission or alleged untrue
statement or omission of a material fact contained in the Preliminary
Prospectus which was corrected in the Prospectus (or the Prospectus as
amended or supplemented). The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in
-17-
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating, preparing for or
defending against any such action or claim. Notwithstanding the provisions
of this subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to the Securities and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 6 shall be in addition
to any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
SECTION 7. DEFAULT OF UNDERWRITERS.
(a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase under the
Pricing Agreement, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such
Underwriters' Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives
do not arrange for the purchase of such Underwriters' Securities, then the
Company shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to the
Representatives to purchase such Underwriters' Securities on such terms.
In the event that, within the respective prescribed periods, the
Representatives notify the Company that they have so arranged for the
purchase of such Underwriters' Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such
Underwriters' Securities, the Representatives or the Company shall have
the right to postpone the Time of Delivery for such Underwriters'
Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements,
and the Company agrees to file promptly any amendments or supplements to
the Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement and the Pricing Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement.
-18-
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a)
above, the aggregate amount of such Underwriters' Securities which remains
unpurchased does not exceed ten percent of the aggregate amount of the
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the amount of Underwriters'
Securities which such Underwriter agreed to purchase under the Pricing
Agreement and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the amount of the Securities which
such Underwriter agreed to purchase under the Pricing Agreement) of the
Underwriters' Securities of such defaulting Underwriter or Underwriters
for which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default. The
respective commitments of the Underwriters for purposes of this Section
shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the amounts of the Securities set
forth opposite their names in Schedule I to the Pricing Agreement as a
result of Delayed Delivery Contracts, if any, entered into by the Company.
(c) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a)
above, the aggregate amount of Underwriters' Securities which remains
unpurchased exceeds ten percent of the aggregate amount of the Securities
as determined as set forth in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Underwriters' Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 4 hereof and the
indemnity and contribution agreements in Section 6 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
(d) As used in this Section 7 only, "aggregate amount" refers to the
aggregate principal amount of any Debt Securities.
SECTION 8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities. If the Pricing Agreement
shall be terminated pursuant to Section 7 hereof, the Company shall not then be
under any liability to any Underwriter except as provided in Section 4 and
Section 6 hereof; but, if for any other reason Underwriters' Securities are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through the Representatives for all reasonable
out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale
-19-
and delivery of the Underwriters' Securities, but the Company shall then be
under no further liability to any Underwriter with respect to the Securities
except as provided in Section 4 and Section 6 hereof.
SECTION 9. PARTIES AND NOTICES.
(a) In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement; and
(b) Unless otherwise provided herein, all statements, requests, notices
and agreements hereunder shall be in writing, or by telegram or facsimile
transmission, and if to the Underwriters shall be sufficient in all respects if
delivered or sent by mail to the Representatives, as such, at the address of the
Representatives designated for such purpose as set forth in the Pricing
Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by mail to the Company c/o American General Corporation, 2929
Allen Parkway, A41-03, Houston, Texas 77019-2155, Attention: Treasurer;
provided, however, that any notice to an Underwriter pursuant to Section 6(c)
hereof shall be delivered or sent by mail to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request.
SECTION 10. SUCCESSORS. This Agreement and the Pricing Agreement shall be
binding upon, and inure solely to the benefit of the Underwriters, the Company
and, to the extent provided in Section 6 and Section 8 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or the Pricing Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
SECTION 11. GOVERNING LAW. This Agreement and the Pricing Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York applicable to agreements made and to be performed in such State.
SECTION 12. COUNTERPARTS. The Pricing Agreement may be executed by any one
or more of the parties thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
-20-
ANNEX I
PRICING AGREEMENT
[Name of Representatives]
[Name of Co-Representative(s)]
As representatives of the several
Underwriters named in Schedule I hereto
[c/o Representatives]
[Address of Representative]
............, 19...
Dear Sirs:
American General Finance Corporation, an Indiana corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (No. 333-_____) and attached hereto (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the debt securities (the "Debt Securities") specified in
Schedule II hereto. Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Pricing Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of each of the Underwriters pursuant to Section 9 of
the Underwriting Agreement and the address of the Representatives referred to in
such Section 9 are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Debt Securities set forth opposite the name of such
Underwriter in Schedule I hereto [, less the principal amount of Debt Securities
covered by Delayed Delivery Contracts, if any].
If the foregoing is in accordance with your understanding, please sign and
return to us _____________ counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting
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Agreement incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Company.
Very truly yours,
AMERICAN GENERAL FINANCE CORPORATION
By: ______________________________________________
(Title)
Accepted as of the date hereof:
[Name of Representative Corporation
By: _________________________________]
(Title)
[Name of Representative Partnership
_______________________________________
(Name of Representative Partnership)]
On behalf of each of the Underwriters
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SCHEDULE I
Principal Amount of
Debt Securities to be
Underwriter Purchased
----------- ---------------------
[Names of Representatives] ................ $
[Names of other Underwriters] ............
_________
Total ............................... $
=========
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SCHEDULE II
TITLE OF DEBT [_____%] [Floating Rate] [Zero Coupon] Senior [Notes]
SECURITIES: [Debentures] due
FORM OF DEBT
SECURITIES: [Global Security-Book Entry] [Certificated] [Bearer]
AGGREGATE PRINCIPAL $_____________________
AMOUNT:
PRICE TO PUBLIC: _____% of the principal amount of the Debt Securities,
plus accrued interest[, if any,] from ________
to ___________ [and accrued amortization, if any, from
__________ to __________]
PURCHASE PRICE BY ____% of the principal amount of the Debt Securities
UNDERWRITERS: plus accrued interest[, if any,] from __________ to
____________ [and accrued amortization, if any, from
___________ to __________]
METHOD OF AND [By certified or official bank check or checks, payable to
SPECIFIED FUNDS the order of the Company in [New York] Clearing House
FOR PAYMENT OF Funds]
PURCHASE PRICE:
[By wire transfer to a bank account specified by the
Company in [next] [same] day funds]
INDENTURE: Indenture dated as of May 1, 1999 between the Company and
Citibank, N.A., as Trustee.
TIME OF DELIVERY: [Time and date]
CLOSING LOCATION:
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NAMES AND ADDRESSES Designated Representatives:
OF REPRESENTATIVES:
Address for Notices, etc.:
[SECURITIES EXCHANGE: Debt Securities to be listed on the [New York] Stock
Exchange]
[FILING DATE: Time and date Prospectus Supplement and/or Term Sheet to
be filed pursuant to Rule 424 (b) [if different than
provided in Section 3(a)]]
DELAYED DELIVERY: [None] [Underwriters' commission shall be ____% of the
principal amount of Debt Securities for which Delayed
Delivery Contracts have been entered into. Such
commission shall be payable to the order of
______________________________.]
MATURITY:
INTEREST RATE: [_____%] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT [months and dates]
DATES:
RECORD DATES: [months and dates]
REDEMPTION [No provisions for redemption]
PROVISIONS:
[The Debt Securities may be redeemed, [otherwise than
through the sinking fund,] in whole or in part at the
option of the Company, in the amount of $__________
or an integral multiple thereof, ___________]
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[on or after ______________________, _______ at the
following redemption prices (expressed in percentages of
principal amount). If [redeemed on or before
__________________, _____%, and if] redeemed during
the 12-month period beginning ______________,
YEAR REDEMPTION PRICE
and thereafter at 100% of their principal amount, together
in each case with accrued interest to the redemption
date.]
[on any interest payment date falling on or after
_________________, ___________, at the election of the
Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption
for changes in tax law]
[Restriction on refunding]
REPAYMENT PROVISIONS: [None] [Debt Securities are repayable on ________, ___
[insert date and year[s]], at the option of the holder, at
their principal amount with accrued interest.]
SINKING FUND [No sinking fund provisions]
PROVISIONS:
[The Debt Securities are entitled to the benefit of a
sinking fund to retire $_________ principal amount of
Debt Securities on ___________ in each of the years _____
through _____ at 100% of their principal amount plus
accrued interest] [, together with [cumulative] [non-
cumulative] redemptions at the option of the Company to
retire an additional $_________ principal amount of
Debt Securities in the years _____ through _____ at 100%
of the principal amount plus accrued interest.]
[IF DEBT SECURITIES ARE EXTENDIBLE SECURITIES, INSERT --
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EXTENDIBLE Debt Securities are repayable on ______________,
PROVISIONS: ____________ [insert date and years], at the option of the
holder at their principal amount with accrued interest.
Initial annual interest rate will be _____%, and
thereafter annual interest rate will be adjusted
on ___________, __________________ and _______ to a rate
not less than _____% of the effective annual interest rate
on U.S. Treasury obligations with ___-year maturities as
of the [insert date 15 days prior to maturity date] prior
to such [insert maturity date].]
[IF DEBT SECURITIES ARE FLOATING RATE SECURITIES, INSERT --
FLOATING RATE Initial annual interest rate will be _____% through
PROVISIONS: ______________ [and thereafter will be adjusted [monthly]
[quarterly] [semi-annually] [on each _____________,
______________, ______________ and __________] [to an
annual rate of _____% above the average rate for _____-
year [month] [securities] [certificates of deposit] by
______________ and ______________ [insert names of
banks].] [and the annual interest rate [thereafter] [from
____________ through _____________] will be the interest
yield equivalent of the weekly average per annum market
discount rate for _____-month Treasury bills plus _____%
of Interest Differential (the excess, if any, of (i) then
current weekly average per annum secondary market yield
for _____-month certificates of deposit over (ii) then
current interest yield equivalent of the weekly average
per annum market discount rate of _____-month Treasury
bills); [from _____________ and thereafter the rate will
be the then current interest yield equivalent plus
_____% of Interest Differential].]
[OTHER TERMS]*:]
- -------------------------
* A description of particular tax, accounting or other unusual features of
the Debt Securities should be set forth, or referenced to an ATTACHED AND
ACCOMPANYING description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the form
in which such features will be described in the Prospectus Supplement for the
offering.
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ANNEX II
Pursuant to subsection 5(e) of the Underwriting Agreement, the
Underwriters shall have received from the independent certified public
accountants who have audited the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and Prospectus, one or more letters, dated as of the Time of Delivery, each of
which shall be to the effect that they are independent auditors with respect to
the Company within the meaning of the Act and the applicable published rules and
regulations thereunder and which, when read together, shall be to the further
effect that:
(i) In their opinion the consolidated financial statements audited by
them and included or incorporated by reference in the Registration
Statement and Prospectus, comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations thereunder;
(ii) On the basis of performing the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in Statement on Auditing Standards No.
71, INTERIM FINANCIAL INFORMATION, on any unaudited financial statements
included or incorporated by reference in the Registration Statement and
Prospectus, a reading of any other unaudited financial statement data
included or incorporated by reference in the Registration Statement and
Prospectus, a reading of the latest available interim unaudited financial
statements of the Company and its subsidiaries ("Interim Financials"), if
any, a reading of any unaudited pro forma financial statements included or
incorporated by reference in the Registration Statement and Prospectus and
a reading of the minutes of the Company's shareholder's meetings, the
meetings of the Board of Directors, the Executive Committee of the Board
of Directors and the Terms and Pricing Committee of the Board of Directors
since the end of the most recent fiscal year with respect to which an
audit report has been issued and inquiries of and discussions with certain
officials of the Company who have responsibility for financial and
accounting matters with respect to the unaudited financial statements and
any other unaudited financial statement data included or incorporated by
reference in the Registration Statement and Prospectus, any Interim
Financials, and any unaudited pro forma financial statements included or
incorporated by reference in the Registration Statement and Prospectus,
and as to whether (1) as of a specified date not more than three 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 "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
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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
Exchange Act and the related published rules and regulations thereunder,
(B) the Interim Financials, if any, are not stated on a basis
substantially consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Registration
Statement and Prospectus, (C) any other unaudited financial statement data
included or incorporated by reference in the Registration Statement and
Prospectus do not agree with the corresponding items in the unaudited
financial statements from which such data were derived or any such
unaudited financial statement data were not determined on a basis
substantially consistent with the corresponding amounts in the audited
financial statements included or incorporated by reference in the
Registration Statement and Prospectus, (D) any unaudited pro forma
financial statements included or incorporated by reference in the
Registration Statement and Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements, (E)(1) as of the date of the Interim Financials, if any, and
as of a specified date not more than three 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 "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)
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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 Representatives and have compared such
amounts, percentages and financial information with the financial and
accounting records of the Company and its subsidiaries and have found them
to be in agreement.
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ANNEX III
DELAYED DELIVERY CONTRACT
___________________, 19__
AMERICAN GENERAL FINANCE CORPORATION
c/o [Name and address of appropriate
Representatives]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from American General Finance
Corporation (hereinafter called the "Company"), and the Company agrees to sell
to the undersigned,
[$______________________________________
principal amount] of the Company's [Title of Securities] (the "Securities"),
offered by the Company's Prospectus dated , 19__, as amended or supplemented by
the Prospectus Supplement dated _______________, 19__, receipt of a copy of
which is hereby acknowledged, at a purchase price of [ % of the principal amount
thereof] [, plus accrued interest, if any, from the date from which interest
accrues as set forth below,] [and accrued amortization, if any, from [ ] [the
date from which interest accrues as set forth below][ to the Delivery Date] and
on the further terms and conditions set forth in this contract.
[The undersigned will purchase the Securities from the Company on , 19__
(the "Delivery Date") and interest on the Securities so purchased will accrue
from _________, 19__.]
[The undersigned will purchase the Securities from the Company on the
delivery date or dates and in the principal amount or amounts set forth below:
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PRINCIPAL [DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
_______, 19__ $ ______________, 19__
_______, 19__ $ ______________, 19__]
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".]
Payment for the Securities which the undersigned has agreed to purchase on
[the] [each] Delivery Date shall be made to the Company or its order by
certified or official bank check in _________________ Clearing House funds at
the office of _______________ or by wire transfer to a bank account specified by
the Company, on [the] [such] Delivery Date upon delivery to the undersigned of
the Securities then to be purchased by the undersigned in definitive form and in
such denominations and registered in such names as the undersigned may designate
by written or telegraphic communication addressed to the Company not less than
[three] full business days prior to [the] [such] Delivery Date.
The obligation of the Company to make delivery of and accept payment for,
and the obligation of the undersigned to take delivery of and make payment for,
Securities on [the] [each] Delivery Date shall be subject only to the conditions
that (1) the purchase of the Securities to be made by the undersigned shall not
on [the] [such] Delivery Date be prohibited under the laws of any jurisdiction
to which the undersigned is subject, and (2) the Company shall have sold to the
Underwriters the total principal amount of the Securities less the principal
amount thereof covered by this and other similar contracts. The obligation of
the undersigned to take delivery of and make payment for Securities shall not be
affected by the failure of any purchaser to take delivery of and make payment
for Securities pursuant to other contracts similar to this contract. The
undersigned represents and warrants that, as of the date of this contract, the
undersigned is not prohibited from purchasing the Securities hereby agreed to be
purchased by it under the laws of any jurisdiction to which the undersigned is
subject.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinions of counsel for the Company
delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original but all
such counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the
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foregoing, acceptances of such contracts need not be on a first-come,
first-served basis. If this contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
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This contract shall be governed by, and construed in accordance with, the
laws of the State of New York applicable to agreements made and to be performed
in such state.
Yours very truly,
_______________________________________
(Name of Purchaser)
By ____________________________________
(Signature)
_______________________________________
(Name and Title)
_______________________________________
(Address)
Accepted _______________________, 19__
AMERICAN GENERAL FINANCE CORPORATION
By ___________________________________
[Title]
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please type or print.)
TELEPHONE NO.
NAME (INCLUDING AREA CODE)
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