EXHIBIT 1
AMERICAN GENERAL FINANCE CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
[ ], 20[ ]
To the Representatives Named
in Schedule I hereto of the
Underwriters named in Schedule II hereto
Ladies and Gentlemen:
1. INTRODUCTORY. American General Finance Corporation, an Indiana
corporation (the "COMPANY"), proposes to issue and sell to the underwriters
named in Schedule II hereto (the "UNDERWRITERS"), for whom you are acting as
representatives (the "REPRESENTATIVES"), its debt securities (the "OFFERED DEBT
SECURITIES") identified in Schedule I hereto, to be issued under the indenture
specified in Schedule I hereto (the "INDENTURE") between the Company and the
Trustee identified in such Schedule (the "TRUSTEE"). In the absence of
Representatives, any reference herein to the "Representatives" shall be deemed
to be a reference to the "Underwriters".
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3 relating to certain of its debt securities, including the Offered Debt
Securities (the "INITIAL REGISTRATION STATEMENT"). The Company also has filed
with, or proposes to file with, the Commission pursuant to Rule 424 under the
Securities Act (and at such time as may be required by Rule 430A(a)(3) under the
Securities Act) a prospectus supplement specifically relating to the Offered
Debt Securities. The various parts of the Initial Registration Statement, any
post-effective amendment thereto and a registration statement, if any,
increasing the size of the offering (a "RULE 462(b) REGISTRATION STATEMENT")
filed pursuant to Rule 462(b) under the Securities Act, including all exhibits
thereto, the documents incorporated by reference in the prospectus contained
therein and any information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Securities Act and deemed by
virtue of Rule 430A under the Securities Act to be part of the registration
statement at the time it was declared effective but excluding the Form T-1 (as
defined below), each as amended at the time such part of the Initial
Registration Statement became effective or such part of any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective are hereinafter collectively referred to as the
"REGISTRATION STATEMENT". The related prospectus covering the Offered Debt
Securities in the form first used to confirm sales of the Offered Debt
Securities is hereinafter referred to as the "BASIC PROSPECTUS". The Basic
Prospectus as supplemented by the prospectus supplement specifically relating to
the Offered Debt Securities in the form first used to confirm sales of the
Offered Debt Securities is hereinafter referred to as the "PROSPECTUS". Any
reference in this Agreement to the Basic Prospectus, any preliminary form of
Prospectus (a "PRELIMINARY PROSPECTUS") previously filed with the Commission
pursuant to Rule 424 under the Securities Act, or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to item 12 of Form S-3 under the Securities Act which were filed under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "EXCHANGE ACT") on or before the
date of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed pursuant
to Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to "amend", "amendment" or
"supplement" with respect to the Basic Prospectus, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include any documents filed under
the Exchange Act after the date of this Agreement, or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) The Initial Registration Statement has become effective; no stop
order suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement, if
any, is in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) The Registration Statement (as amended) and the Prospectus (as
amended or supplemented) conform in all material respects to the requirements of
the Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "TRUST
INDENTURE ACT"), and did not and will not, as of the applicable effective date,
the date any Annual Report on Form 10-K of the Company has been filed with the
Commission after such effective date (and before the Closing Date referred to in
Section 3), the date of this Agreement and the Closing Date, as to the
Registration Statement and any amendment thereto and as of its date, the date of
this Agreement and the Closing Date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or, in the
case of the Registration Statement, omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or, in
the case of the Prospectus, omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they are made,
not misleading; except that the foregoing representations and warranties shall
not apply to
(i) that part of the Registration Statement which constitutes
the Statement of Eligibility ("FORM T-1") under the Trust Indenture Act of
the Trustee,
(ii) statements or omissions in the Registration Statement or
the Prospectus made in reliance upon and in conformity with information
relating to any Underwriter provided in writing to the Company by or
through the Representatives expressly for use therein and
(iii) any statement which does not constitute part of the
Registration Statement or Prospectus pursuant to Rule 412 under the
Securities Act.
(c) 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 none of such
documents contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading; and any further
documents so filed and incorporated by reference, when they are filed with the
Commission, will conform in all material respects to the requirements of the
Exchange Act and will not contain an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading; provided,
however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter provided in writing to the Company by or through the
Representatives expressly for use therein or to any statement in any such
document which does not constitute part of the Registration Statement or
Prospectus pursuant to Rule 412 under the Securities Act.
(d) The Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Indiana, and has full corporate
power and authority to own its properties and to conduct its business as
described in the Prospectus.
(e) The Offered Debt Securities will be duly authorized prior to
their issuance and when issued and delivered pursuant to this Agreement, will
have been duly executed, authenticated, issued
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and delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture and enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles and
any Contract Offered Debt Securities (as defined in Section 3), when executed,
authenticated, issued and delivered in the manner provided in the Indenture and
sold pursuant to Delayed Delivery Contracts (as defined in Section 3), will
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture and enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(f) The Indenture has been duly authorized, executed and delivered,
and upon effectiveness of the Registration Statement will have been duly
qualified under the Trust Indenture Act and constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Offered Debt
Securities and the Indenture will conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented.
(g) The issue and sale of the Offered Debt Securities and the
compliance by the Company with all of the provisions of the Offered Debt
Securities, the Indenture, this Agreement and any Delayed Delivery Contract, and
the consummation of the transactions herein and therein contemplated, will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the property or
assets of the Company is subject, or result in any violation of any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties, except, in each case,
for such conflicts, breaches, defaults and violations that would not have a
material adverse effect on the business, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken as a
whole (a "MATERIAL ADVERSE EFFECT") or affect the validity of the Offered Debt
Securities, nor will such action result in any violation of the provisions of
the Restated Articles of Incorporation, as amended, or the Amended and Restated
By-Laws of the Company; and no consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required by the Company for the issue and sale of the Offered Debt
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, any Delayed Delivery Contract or the Indenture,
except such consents, approvals, authorizations, orders, registrations or
qualifications the failure to obtain or make would not have a Material Adverse
Effect or affect the validity of the Offered Debt Securities, and such consents,
approvals, authorizations, orders, registrations or qualifications as have been,
prior to the date of this Agreement, obtained under the Securities Act or the
Trust Indenture Act and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state securities or
"Blue Sky" or insurance securities laws in connection with the purchase and
distribution of the Offered Debt Securities by the Underwriters.
(h) There is no action, suit or proceeding pending, or to the
knowledge of the executive officers of the Company, threatened against the
Company or any of its subsidiaries, which has, or may reasonably be expected in
the future to have, a Material Adverse Effect, except as set forth or
contemplated in the Prospectus as amended or supplemented.
(i) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented on the date of this Agreement, there has not been any material
change in the capital stock or any material increase in the consolidated
long-term debt of the Company or any material adverse change in or affecting the
consolidated financial position, shareholders' equity or results of operations
of the Company and its consolidated subsidiaries (a "MATERIAL ADVERSE CHANGE")
otherwise than as set forth or contemplated in such Prospectus.
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3. PURCHASE, OFFERING AND DELIVERY. The Company agrees to issue and sell
the Offered Debt Securities to the several Underwriters as hereinafter provided,
and each Underwriter, on the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the respective principal amount of
Offered Debt Securities set forth opposite such Underwriter's name in Schedule
II hereto at the purchase price set forth in Schedule I hereto.
Payment for the Offered Debt Securities shall be made to the Company by
wire transfer of immediately available funds on the date and at the time and
place set forth in Schedule I hereto (or at such time and on the same or such
other date, not later than the third Business Day thereafter, as the
Representatives and the Company may agree in writing). Such payment will be made
upon delivery to, or to the Representatives for the respective accounts of, such
Underwriters of the Offered Debt Securities registered in such names and in such
denominations as the Representatives shall request not less than two full
Business Days prior to the date of delivery. As used herein, the term "BUSINESS
DAY" means any day other than a day on which banks are permitted or required to
be closed in New York City. The time and date of such payment and delivery with
respect to the Offered Debt Securities are referred to herein as the Closing
Date. The certificates, if any, for the Offered Debt Securities will be made
available for inspection and packaging by the Representatives by 1:00 P.M. on
the Business Day prior to the Closing Date at such place in New York City as the
Representatives and the Company shall agree.
If the Registration Statement and the Prospectus, as amended or
supplemented, provide for sales of Offered Debt Securities pursuant to delayed
delivery contracts, the Company authorizes the Underwriters to solicit offers to
purchase Offered Debt Securities pursuant to delayed delivery contracts
substantially in the form of Schedule III attached hereto ("DELAYED DELIVERY
CONTRACTS") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors of the types
set forth in the Prospectus. On the Closing Date, the Company will pay the
Representatives as compensation, for the accounts of the Underwriters, the fee
set forth in Schedule I in respect of the principal amount of Offered Debt
Securities covered by Delayed Delivery Contracts (the "CONTRACT OFFERED DEBT
SECURITIES") by wire transfer of immediately available funds to a bank account
specified by the Representatives. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Offered Debt Securities shall be deducted from the total Offered Debt
Securities to which Schedule II pertains and the balance shall be "Underwriters'
Offered Debt Securities"; and the aggregate principal amount of Offered Debt
Securities to be purchased by each Underwriter shall be reduced commensurately
so that the principal amount of Offered Debt Securities (rounded to the nearest
$1,000 principal amount) set forth opposite each Underwriter's name in such
Schedule II is in the same proportion to the total Underwriters' Offered Debt
Securities as the unreduced amounts of each such Underwriter bear to the total
Offered Debt Securities including Contract Offered Debt Securities. Such
reductions shall be revised to the extent the Representatives determine such
reductions should be otherwise and so advise the Company.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Debt Securities for sale to the public
as set forth in the Prospectus. The Underwriters represent and covenant that any
offer or sale of the Offered Debt Securities through an electronic medium has
been and will be made in compliance with the Securities Act.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
several Underwriters that:
(a) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
prior to the completion of the distribution of the Offered Debt Securities
provide the Representatives with a reasonable opportunity to review such
proposed amendment or supplement prior to any filing thereof (other than any
filing required to be made pursuant to the Exchange Act) and will not make any
such amendment or supplement between the date hereof and the Closing Date which
shall be reasonably disapproved by the Representatives promptly after reasonable
notice thereof; prior to the completion of the distribution of the Offered Debt
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Securities, the Company will file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act,
advise the Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed with, or transmitted for filing to, the Commission (other than any filing
required to be made pursuant to the Exchange Act ), of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Offered Debt Securities, of the suspension of the
qualification of the Offered Debt Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amendment or supplement of
the Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order preventing
or suspending the use of any such prospectus or suspending any such
qualification, will use promptly its best efforts to obtain its withdrawal;
(b) If at any time when a prospectus relating to any Offered Debt
Securities is required to be delivered under the Securities Act any event occurs
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary 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 it is necessary at any time to amend or supplement the Registration Statement
or Prospectus to comply with the Securities Act or the Trust Indenture Act, the
Company promptly will prepare and cause to be filed promptly with the Commission
an amendment or supplement to the Registration Statement or the Prospectus as
then amended or supplemented that will correct such statement or omission or
effect such compliance. The expense of complying with the requirements of this
Section 5(b) shall be borne
(i) during the period of six months after the first date of
the public offering of the Offered Debt Securities, by the Company, and
(ii) after the expiration of such six-month period, by those
Underwriters on whose behalf the Representatives may request copies of the
Prospectus or of an amendment or amendments of or a supplement or
supplements to the Prospectus.
(c) The Company will timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to its
security holders as soon as practicable an earnings statement or statements of
the Company and its subsidiaries (which need not be audited) for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the Securities Act.
(d) The Company will furnish to the Representatives copies of the
Registration Statement (one of which will include all exhibits), each related
preliminary prospectus, the Prospectus, and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as the
Representatives reasonably request.
(e) The Company will arrange for the qualification of the Offered
Debt Securities for offering and sale and the determination of their eligibility
for investment under the applicable securities and insurance laws of such
jurisdictions as the Representatives reasonably designate and will continue such
qualifications in effect so long as required for the distribution; provided,
however, that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction.
(f) The Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Offered
Debt Securities under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any preliminary prospectus and the Prospectus and amendments
and
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supplements thereto and the mailing and delivering of copies thereof to
the Underwriters and dealers;
(ii) the cost of printing, word processing or reproducing this
Agreement, the Indenture, any Delayed Delivery Contracts, any Blue Sky and
Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Offered Debt Securities;
(iii) all expenses in connection with the qualification of the
Offered Debt Securities for offering and sale under state securities or
insurance laws as provided in Section 5(e) hereof, including fees and
disbursements of the Representatives' counsel in connection with such
qualification and in connection with any Blue Sky and Legal Investment
Memoranda;
(iv) any fees charged by securities rating services for rating
the Offered Debt Securities;
(v) any filing fees incident to any required review by the
Corporate Financing Department of NASD Regulation, Inc. (NASDR) of the
terms of the sale of the Offered Debt Securities;
(vi) the cost of preparing the Offered Debt Securities,
including any fees and expenses relating to the use of book-entry
securities;
(vii) the fees and expenses of any Trustee and any agent of
any Trustee and the fees and disbursements of counsel for any Trustee in
connection with the Indenture and the Offered Debt Securities; and
(viii) all other costs and expenses incident to the
performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this
Section, Section 7 and Section 13 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Offered Debt Securities by them,
and any advertising expenses connected with any offers they may make.
(g) During the period beginning on the date hereof and continuing to
and including the earlier of (i) the termination of the trading restrictions for
the Offered Debt Securities, as notified to the Company by the Representatives,
and (ii) the Closing Date, the Company will not, without the prior written
consent of the Representatives, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company that mature more than nine (9)
months after the Closing Date and that are substantially similar to the Offered
Debt Securities. The foregoing restriction shall not apply to an issue of debt
securities denominated in a currency other than U.S. dollars or to an issue of
debt securities at least 90% of which is offered and sold outside the United
States.
(h) The Company will advise the Representatives in writing not later
than 3:30 p.m., New York City time, on the second Business Day prior to the
Closing Date of the names of any investors with which the making of Delayed
Delivery Contracts has been approved by the Company and the principal amount of
any Contract Offered Debt Securities to be covered by each such Delayed Delivery
Contract.
(i) If the Company elects to rely upon Rule 462(b) under the
Securities Act, the Company shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) under the Securities Act by 10:00
P.M., Washington, D.C. time, on the date of this Agreement, and the Company
shall at the time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Securities Act.
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6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Offered Debt Securities
will be subject to the accuracy, at and as of the Closing Date, in all material
respects, of the representations and warranties on the part of the Company
herein, to the accuracy, in all material respects, of the statements of Company
officers made pursuant to the provisions hereof, to the performance, in all
material respects, by the Company of its obligations hereunder and to the
following additional conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the
Commission or, to the knowledge of the executive officers of the Company, shall
be contemplated by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the reasonable
satisfaction of the Representatives.
(b) Since the respective dates as of which information is given in
the Prospectus, there shall not have occurred any material change in or
affecting the business, properties or financial condition of the Company or its
material subsidiaries which, in the judgment of the Representatives, materially
impairs the investment quality of the Offered Debt Securities.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, if the effect of any
such event, in the reasonable judgment of the Representatives, is to make
it impracticable or inadvisable to market the Offered Debt Securities on
the terms and in the manner contemplated in the Prospectus as amended or
supplemented;
(ii) a general moratorium on commercial banking activities in
New York declared by either Federal or New York State authorities;
(iii) any downgrading in the rating accorded the Company's
senior debt securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act;
(iv) the suspension in trading in the securities of the
Company on any national securities exchange or quotation system on which
they are listed or quoted, if the effect of such event in the reasonable
judgment of the Representatives is to make it impracticable or inadvisable
to market the Offered Debt Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented; or
(v) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war, other than any such outbreak, escalation or declaration
that does not represent a significant departure from the conditions that
exist on the date hereof, if the effect of any such event in the
reasonable judgment of the Representatives is to make it impracticable or
inadvisable to market the Offered Debt Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented.
(d) The Representatives shall have received an opinion or opinions
of Timothy M. Hayes, Esq., General Counsel of the Company, or such other counsel
as shall be acceptable to the Representatives, dated the Closing Date, to the
effect that:
(i) The Company is a corporation duly incorporated and validly
existing under the laws of the State of Indiana, and has the corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus as amended or
supplemented and to enter into and perform its obligations under, or as
contemplated under, this Agreement;
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(ii) Each of the subsidiaries of the Company has been duly
incorporated and is validly existing as a business corporation or an
insurer, as the case may be, and is in good standing under the laws of its
jurisdiction of incorporation, with corporate power and authority to own,
lease and operate its properties and conduct its business as described in
the Prospectus as amended or supplemented; provided, however, that "good
standing" means with respect to any subsidiary incorporated under the laws
of the State of Indiana, that such subsidiary has filed its most recent
biennial report required by the laws of the State of Indiana and Articles
of Dissolution have not been filed in the State of Indiana with respect to
such subsidiary; to the knowledge of such counsel, the Company and each of
its subsidiaries has been duly qualified as a foreign corporation for the
transaction of business or licensed to transact business as an insurance
company, as the case may be, and is in good standing under the laws of
each other jurisdiction in which it owns or leases substantial properties,
or conducts business, and where the failure so to qualify and be in good
standing would have a material adverse effect on the business of the
Company and its subsidiaries taken as a whole; all of the outstanding
shares of capital stock of each such subsidiary have been duly authorized
and validly issued, are fully paid and non-assessable, and (except for any
directors' qualifying shares) are owned, directly or indirectly, by the
Company, free and clear of all liens and encumbrances; and, to the
knowledge of such counsel, the Company and each of its subsidiaries has
all required authorizations, approvals, orders, licenses, certificates and
permits of and from all governmental regulatory officials and bodies
(including, without limitation, each insurance regulatory authority having
jurisdiction over the Company or any insurance subsidiary of the Company)
to own, lease and operate its properties and to conduct its business as
described in the 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 (ii) upon opinions (in form and
substance 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
public officials or officers of the Company or its subsidiaries, provided
that such counsel shall state that he or she believes that he or she is
justified in relying upon such opinions);
(iii) There are no legal or governmental proceedings pending
or, to the knowledge of such counsel, threatened, of a character that are
required to be disclosed in the Registration Statement and Prospectus as
amended or supplemented, other than as disclosed therein; to the knowledge
of such counsel, there are no contracts, indentures, mortgages, deeds of
trust, loan agreements or other documents of a character required to be
described in the Registration Statement or Prospectus as amended or
supplemented (or required to be filed under the Exchange Act if upon such
filing they would be incorporated by reference therein) or to be filed as
exhibits to the Registration Statement that are not described and filed as
required and all descriptions in the Prospectus as amended or supplemented
of such documents to which the Company or its subsidiaries are a party are
accurate in all material respects;
(iv) Neither the Company nor any of its subsidiaries is in
violation of its articles of incorporation, charter or by-laws or in
default in the performance or observance of any contractual obligation
known to such counsel, the violation of or default under which has or will
have a material adverse effect on the business of the Company and its
subsidiaries taken as a whole. The issue and sale of the Offered Debt
Securities, the compliance by the Company with all of the provisions of
the Offered Debt Securities, the Indenture, each of the Delayed Delivery
Contracts, if any, and this Agreement, and the consummation of the
transactions herein and therein contemplated will not (A) conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any contract, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument for money borrowed
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
or (B) result in any violation of (x) the provisions of the Restated
Articles of Incorporation, as amended, or the Amended and Restated By-Laws
of the Company or (y) any statute, order, rule, regulation,
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judgement, writ or decree known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties, in any manner which, in the
case of clauses (A) and (B)(y), would have a material adverse effect on
the business of the Company and its subsidiaries taken as a whole (such
counsel being entitled to rely in respect of the opinion in this clause
(iv) with respect to subsidiaries upon opinions (in form and substance
satisfactory to the Representatives) of counsel for the subsidiaries, such
counsel being acceptable to counsel for the Underwriters, copies of which
shall be furnished to the Representatives, provided that such counsel
shall state that he or she believes that he or she is justified in relying
upon such opinions);
(v) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of
their properties is required for the issue and sale of the Offered Debt
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, the Indenture, or any Delayed Delivery
Contract, except such as may be required under the Securities Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or "Blue Sky" or insurance laws in connection with the public offering of
the Offered Debt Securities by the Underwriters;
(vi) This Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company;
(vii) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(viii) The Offered Debt Securities have been duly authorized
and, when executed and authenticated pursuant to the Indenture and issued
and delivered against payment therefor pursuant to this Agreement (or, in
the case of any Contract Offered Debt Securities, pursuant to the Delayed
Delivery Contracts with respect thereto), (A) the Offered Debt Securities
will be duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles, are in the form
authorized in or pursuant to the Indenture, and conform in all material
respects to the description thereof in the Prospectus as amended or
supplemented and (B) each holder of Offered Debt Securities will be
entitled to the benefits of the Indenture;
(ix) The information in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities", "Certain
United States Federal Income Tax Considerations", and "Description of
Offered Debt Securities", or any caption purporting to cover such matters,
to the extent that such information constitutes matters of law, summaries
of legal matters, or legal conclusions, has been reviewed by such counsel
and is correct in all material respects;
(x) The Indenture is qualified under the Trust Indenture Act;
(xi) The Registration Statement is effective under the
Securities Act and, to such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under the
Securities Act and no proceeding for that purpose has been initiated or
threatened by the Commission;
9
(xii) The Registration Statement (other than the financial
statements and supporting schedules included therein and the Statement of
Eligibility under the Trust Indenture Act filed as an exhibit thereto, as
to which no opinion need be expressed), at the time it became effective,
appeared on its face to be appropriately responsive in all material
respects to the applicable requirements of the Securities Act, the Trust
Indenture Act and the respective rules and regulations of the Commission
thereunder;
(xiii) The Company is not, and after giving effect to the
issue and sale of the Offered Debt Securities, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended;
(xiv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial statements
and supporting schedules included therein, as to which no opinion need be
expressed), when they were filed with the Commission, complied as to form
in all material respects with the requirements of the Exchange Act and the
rules and regulations thereunder; and
(xv) Nothing has come to such counsel's attention that would
lead such counsel to believe that the Registration Statement (other than
the financial statements and supporting schedules contained or
incorporated by reference therein or omitted therefrom and the Statement
of Eligibility under the Trust Indenture Act filed as an exhibit thereto,
as to which such counsel need not comment), at the time it became
effective, and if an amendment to the Registration Statement under the
Securities Act or an Annual Report on Form 10-K under the Exchange Act has
been filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time each such
amendment became effective and the most recent such Form 10-K was filed,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (other than the
financial statements and supporting schedules included or incorporated by
reference therein or omitted therefrom, as to which such counsel need not
comment), as amended or supplemented, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving such opinion, such counsel may rely as to matters of New York
law upon the opinion of Sidley Austin Brown & Wood LLP referred to in Section
6(e).
(e) The Representatives shall have received from Sidley Austin Brown
& Wood LLP, counsel for the Underwriters, such opinion, dated the Closing Date,
with respect to the incorporation of the Company, the validity of the Offered
Debt Securities, the Registration Statement, the Prospectus as amended or
supplemented, and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters. In giving such opinion, Sidley Austin Brown & Wood LLP may rely as to
matters of Indiana law upon the opinion of Timothy Hayes, Esq., General Counsel
of the Company (or other counsel licensed to practice in the State of Indiana)
referred to in Section 6(d).
(f) The Representatives shall have received a certificate of the
Chairman, the President, or a Vice President and the Treasurer or Assistant
Treasurer of the Company, dated the Closing Date, in which such officers, to the
best of their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, in all material respects, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied, in all material respects, at or prior to the Closing Date, that no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or threatened by
the Commission, and that, since the respective dates as of which information is
given in the Prospectus as amended or supplemented there has not been any
Material
10
Adverse Change, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented.
(g) The Representatives shall have received a letter or letters of
the independent registered public accountant firm(s) which has certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus as
amended or supplemented and/or of such other independent registered public
accountant firm(s) as the Company shall have engaged for such purpose, dated the
Closing Date, to the effect set forth in Schedule IV hereto. The Company will
furnish the Representatives with such confirmed copies of such opinions,
certificates, letters and documents as the Representatives reasonably request.
7. INDEMNIFICATION. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of any material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus as amended or
supplemented, 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 it in connection with
investigating or defending any such action or claim as incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus, the Registration Statement, the Prospectus
as amended or supplemented or any other prospectus relating to the Offered Debt
Securities or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
expressly for use therein; and provided, further, that with respect to any
untrue statement or omission or alleged untrue statement or omission made in any
preliminary prospectus, the indemnity agreement contained in this Section 7(a)
shall not apply to any such losses, claims, damages or liabilities asserted
against such Underwriter by any purchaser of Offered Debt Securities to the
extent that such losses, claims, damages or liabilities result from the fact
that a copy of the Prospectus furnished by the Company (excluding any documents
incorporated by reference therein) was not sent or given to such purchaser at or
prior to the written confirmation of the sale of such Offered Debt Securities to
such purchaser.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any preliminary prospectus, the Registration Statement or the
Prospectus as amended or supplemented, or arise out of or are based upon the
omission or the 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 as amended or
supplemented or any other prospectus relating to the Offered Debt Securities or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action is brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that
11
it shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Offered Debt Securities to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the sale of Offered
Debt Securities (before deducting expenses) received by the Company bear to the
total commissions or discounts received by the Underwriters in respect thereof.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Debt
Securities purchased by or through such Underwriter were sold exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Securities Act; and the obligations of
each Underwriter under this Section 7 shall be in addition to any liability
which such Underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Securities Act.
8. DEFAULTS OF UNDERWRITERS. (a) If any Underwriter shall default in its
obligation to purchase Underwriters' Offered Debt Securities which it has agreed
to purchase hereunder, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Underwriters'
Offered Debt Securities on the terms contained herein. If within twenty-four
hours
12
after such default by any Underwriter the Representatives do not arrange for the
purchase of such Underwriters' Offered Debt Securities, then the Company shall
be entitled to a further period of twenty-four hours within which to procure
another party or other parties satisfactory to the Representatives to purchase
such Underwriters' Offered Debt Securities on such terms. In the event that,
within the respective prescribed periods, the Representatives notify the Company
that they have so arranged for the purchase of such Underwriters' Offered Debt
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Underwriters' Offered Debt Securities, the
Representatives or the Company shall have the right to postpone the Closing Date
for such Underwriters' Offered Debt Securities for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement 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 shall include any person substituted under this Section 8
with like effect as if such person had originally been a party to this
Agreement.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Offered Debt Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of such Underwriters' Offered Debt
Securities which remains unpurchased does not exceed ten percent of the
aggregate principal amount of the Offered Debt Securities, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Underwriters' Offered Debt Securities which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of the
Offered Debt Securities which such Underwriter agreed to purchase hereunder) of
the Underwriters' Offered Debt Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default. The
respective commitments of the Underwriters for purposes of this Section 8 shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amounts of the Offered Debt Securities set
forth opposite their names in Schedule II hereto as a result of Delayed Delivery
Contracts, if any, entered into by the Company.
(c) If, after giving effect to any arrangements for the purchase of
the Underwriters' Offered Debt Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of Underwriters' Offered Debt
Securities which remains unpurchased exceeds ten percent of the aggregate
principal amount of the Offered Debt Securities as determined as set forth in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Underwriters' Offered Debt Securities of a defaulting Underwriter or
Underwriters, then this Agreement shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in Section
5(f) hereof and the indemnity and contribution agreements in Section 7 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties, and other statements of
the Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter or any controlling person of any Underwriter or the Company
or any of its officers or directors or any controlling person, and will survive
delivery of and payment for the Offered Debt Securities.
10. NOTICES. All communications hereunder will be in writing, and, if sent
to the Underwriters, will be mailed or delivered and confirmed to the
Representatives at the address set forth in Schedule I or, if sent to the
Company, will be mailed or delivered and confirmed to it at 601 N.W. Second
Street, Evansville, Indiana 47708, Facsimile Transmission No. (812) 468-5352,
Attention: Treasurer; provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed or delivered to such Underwriter at its
address furnished to the Company by such Underwriter.
13
11. SUCCESSORS. This Underwriting Agreement will inure solely to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 7 hereof, and no other person will have any right or obligation
hereunder. No purchaser of the Offered Debt Securities from any Underwriter
shall be deemed a successor or assign merely by reason of such purchase.
12. REPRESENTATION. In all dealings hereunder, the Representatives shall
act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by the Representatives.
13. TERMINATION. If for any reason, other than the occurrence of an event
described in Section 6(c), Underwriters' Offered Debt Securities are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) approved in
writing by the Representatives reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Offered Debt
Securities, but the Company shall then be under no further liability to any
Underwriter with respect to such Offered Debt Securities except as provided in
Section 5(f) and Section 7 hereof.
14. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
15. COUNTERPARTS. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us four counterparts hereof, whereupon this
letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
AMERICAN GENERAL FINANCE CORPORATION
By: ___________________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
[NAME[S]]
By: ___________________________________________
Name:
Title:
14
SCHEDULE I
Title of Designated Securities: [-%] [Floating Rate] [Zero Coupon] Senior [Notes] due
Form: [Global Security-Book Entry][Certificated][Bearer]
Aggregate Principal Amount: [$-]
Registration Statement No.: -
Price to Public: -% of the principal amount of the Offered Debt Securities,
plus accrued interest [, if any,] from - to the date of
payment and delivery [and accrued amortization, if any, from -
to the date of payment and delivery]
Purchase Price by Underwriters: -% of the principal amount of the Offered Debt Securities,
plus accrued interest [, if any,] from - to the date of
payment and delivery [and accrued amortization, if any, from -
to the date of payment and delivery]
Specified Funds for Payment of Purchase [New York] Clearing House funds
Price:
Indenture: Indenture dated as of May 1, 1999 between the Company and
Citibank, N.A., as Trustee
Maturity: -
Interest Rate: [-%] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates: [months and dates]
Interest Record Dates -
Redemption Provisions: [No provisions for redemption]
[The Offered Debt Securities may be redeemed, [otherwise than
through the sinking fund,] in whole or in part, at the option of
the Company, in the amount of $- or an integral multiple thereof,
[on or after -, at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before -,
-%, and if] redeemed during the 12-month period beginning
Year Redemption Price
- -
and thereafter at 100% of their principal amount, together in
each case with accrued interest to the redemption date.] [on any
interest payment date falling on or after -, at the election of
the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption for
changes in tax law]
[Restriction on refunding]
Repayment Provisions: [None][Offered Debt Securities are repayable on -, at the
option of the holder, at their principal amount with accrued
interest.]
Schedule I-1
Sinking Fund Provisions: [No sinking fund provisions]
[The Offered Debt Securities are entitled to the benefit of a
sinking fund to retire $- principal amount of Offered Debt
Securities on - in each of the years - through - at 100% of their
principal amount plus accrued interest] [, together with
[cumulative] [non-cumulative] redemptions at the option of the
Company to retire an additional $- principal amount of Offered
Debt Securities in the years - through - at 100% of their
principal amount plus accrued interest].
[If Securities are Extendable Debt The Offered Debt Securities are repayable on -, [insert date
Securities, insert and years], at the option of the holder, at their principal
Extendable Provisions: amount with accrued interest. Initial annual interest rate
will be -%, and thereafter annual interest rate will be adjusted
on -, and - to a rate not less than -% of the effective annual
interest rate on U.S. Treasury obligations with --year maturities
as of the [insert date 15 days prior to maturity date] prior to
such [insert maturity date]].
[If Securities are Floating Rate Debt Initial annual interest rate will be -% through - [and
Securities, insert thereafter will be adjusted [monthly][quarterly][semi-annually]
Floating Rate Provisions: [on each -, - and -] [to an annual rate of -% above the average
rate for --year [month] [securities] [certificates of deposit]
issued by - and - [insert names of banks].] [and the annual
interest rate [thereafter] [from - through -] will be the
interest yield equivalent of the weekly average per annum market
discount rate for --month Treasury bills plus -% of Interest
Differential (the excess, if any, of (i) then current weekly
average per annum secondary market yield for --month certificates
of deposit over (ii) then current interest yield equivalent of
the weekly average per annum market discount rate for --month
Treasury bills); [from - and thereafter the rate will be the then
current interest yield equivalent plus -% of Interest
Differential].]
Time of Delivery: -
Closing Location: -
Names and Addresses of Designated Representatives:
Representatives: Address for Notices, etc.:
Delayed Delivery: [None][Underwriters' commissions shall be -% of the principal
amount of Debt Securities for which Delayed Delivery Contracts
have been entered into. Such commission shall be payable to
the order of -.]
[Other Terms] -
Schedule I-2
SCHEDULE II
PRINCIPAL
AMOUNT OF
OFFERED DEBT
SECURITIES TO BE
UNDERWRITERS PURCHASED
- -------------------------------------------------------------------------------- ---------------------
[Name(s) of Representative(s)]..................................................
[Name(s) of Underwriter(s)].....................................................
---------------------
Total........................................................................... $
=====================
Schedule II-1
SCHEDULE III
DELAYED DELIVERY CONTRACT
(Three copies of this Delayed Delivery Contract should
be signed and returned to the address shown below
so as to arrive not later than 9:00 A.M.,
New York Time, on _________, 20-.)
-, 20-
AMERICAN GENERAL FINANCE CORPORATION
c/o [Name and Address of Representatives]
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from American General Finance
Corporation (hereinafter called the "COMPANY"), and the Company agrees to sell
to the undersigned, [if one delayed closing, insert-as of the date hereof, for
delivery on -, 20- (the "DELIVERY DATE")] $- principal amount of the Company's
[state title of Offered Debt Securities] (hereinafter called "DEBT SECURITIES"),
offered by the Company's Prospectus (which term includes the prospectus
supplement dated as of -) relating thereto, receipt of a copy of which is hereby
acknowledged, at -% of the principal amount of the Debt Securities so purchased
plus accrued interest, if any, from -, 20-, [and accrued amortization, if any,
from -, 20-] to the Delivery Date and on the further terms and conditions set
forth in this Delayed Delivery Contract ("CONTRACT").
[If two or more delayed Closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Debt Securities in the principal amounts
set forth below
DELIVERY DATE PRINCIPAL AMOUNT
- ------------- ----------------
Each of such delivery dates is hereinafter referred to as a "DELIVERY
DATE".]
Payment for Debt Securities which the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to the Company by wire
transfer of immediately available funds to a bank account specified by the
Company, on [the] [such] Delivery Date upon delivery to the undersigned of the
Debt Securities to be purchased by the undersigned - for delivery on such
Delivery Date - in definitive form and in such denominations and registered in
such names as the undersigned may designate by written communication addressed
to the Company not less than three full business days prior to [the] [such]
Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Debt Securities is to be regarded in all respects as a purchase as
of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Debt Securities on [the] [each] Delivery
Date shall be subject only to the conditions that (A) investment in the Debt
Securities shall not at [the] [such] Delivery Date be prohibited under the laws
of any jurisdiction
Schedule III-1
[in the United States] to which the undersigned is subject and which governs
such investment and (B) the Company shall have sold to the Underwriters the
total principal amount of the Debt Securities less the principal amount thereof
covered by this and other similar Contracts. The undersigned represents that its
investment in the Debt Securities is not, as of the date hereof, prohibited
under the laws of any jurisdiction to which the undersigned is subject and which
governs such investment. Promptly after completion of the sale to the
Underwriters the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other. This Contract shall be
governed by and construed in accordance with the laws of the State of New York.
The obligation of the undersigned to take delivery of and make payment for
Debt Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Debt Securities pursuant to other contracts
similar to this Contract.
It is understood that the acceptance of any Delayed Delivery Contract
(including this Contract) is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If this
Contract is acceptable to the Company, it is requested that the Company sign the
form of acceptance below and mail or deliver one of the counterparts hereof to
the undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is so
mailed or delivered.
Very truly yours,
[Name of Purchaser]
By: ___________________________________
Title:
Address:
Telephone No.:
Accepted, as of the above date.
AMERICAN GENERAL FINANCE CORPORATION
By: __________________________________
Name:
Title:
Schedule III-2
SCHEDULE IV
Pursuant to Section 6(g) of the Underwriting Agreement, the accountants
shall provide a comfort letter or letters to the effect that:
(i) They are an independent registered public accounting firm with respect
to the Company and its subsidiaries within the meaning of the Securities Act and
the applicable rules and regulations thereunder adopted by the Commission;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) audited by them and included or
incorporated by reference in the Registration Statement and Prospectus comply as
to form in all material respects with the applicable accounting requirements of
the Securities Act or the Exchange Act, as applicable, and the related rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the Public Company Accounting Oversight
Board ("PCAOB") of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts and/or
condensed financial statements derived from audited financial statements of the
Company for the periods specified in such letter(s), as indicated in their
reports thereon, copies of which have been separately furnished to the
representative or representatives of the Underwriters (the "REPRESENTATIVES"),
such term to include an Underwriter or Underwriters who act without any firm
being designated as its or their representatives;
(iii) They have made a review in accordance with standards established by
the PCAOB of the unaudited condensed consolidated statements of income,
consolidated balance sheets, consolidated statements of cash flows and
consolidated statements of comprehensive income included in the Prospectus
and/or included in the Company's Quarterly Reports on Form 10-Q incorporated by
reference into the Prospectus; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the related rules
and regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not comply as
to form in all material respects with the applicable accounting requirements of
the Securities Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements
for such five fiscal years included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter(s) nothing came to their attention
as a result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Item 503(d) of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information referred to
below, a reading of the latest available interim financial statements of the
Company and its subsidiaries, inspection of the minute books of the Company and
its subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of officials
of the Company and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such
letter(s), nothing came to their attention that caused them to believe that:
Schedule IV-1
A. (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets, consolidated statements of cash flows and
consolidated statements of comprehensive income included and/or incorporated by
reference in the Prospectus and included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission, or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance sheets,
consolidated statements of cash flows and consolidated statements of
comprehensive income included in the Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting principles;
B. any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items were
derived, and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts in the
audited consolidated financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most recent fiscal year;
C. the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
D. any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the
Securities Act and the rules and regulations adopted by the Commission
thereunder or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
E. as of a specified date not more than five days prior to the date of
such letter(s), there have been any changes in the consolidated capital stock or
any increase in the consolidated long-term debt of the Company and its
subsidiaries, or as of the end of the latest period for which financial
statements are available, any decreases in consolidated net assets, in each case
as compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus as amended and supplemented
discloses have occurred or may occur or which are described in such letter(s);
and
F. for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the end of the last
period for which financial statements are available there were any decreases in
consolidated total revenues or the total amount of consolidated income before
extraordinary items or consolidated net income of the Company and its
subsidiaries in each case as compared with the comparable period of the
preceding year, except in each case for increases or decreases which the
Prospectus as amended and supplemented discloses have occurred or may occur or
which are described in such letter(s); and
(vii) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and
Schedule IV-2
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Schedule IV to the Prospectus shall be deemed to
refer to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) as defined in the Underwriting Agreement.
Schedule IV-3