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EXHIBIT 1
AMERICAN GENERAL FINANCE CORPORATION
Medium-Term Notes, Series I
Due Nine Months or More
from Date of Issue
Distribution Agreement
March 26, 2004
ABN AMRO Incorporated
Goldman, Sachs & Co.
55 East 52nd Street, 6th Floor
85 Broad Street
New York, New York 10055
New York, New York 10004
Banc of America Securities LLC
HSBC Securities (USA) Inc.
9 West 57th Street
452 Fifth Avenue
New York, New York 10019
New York, New York
10018
Barclays Capital Inc.
J.P. Morgan Securities Inc.
200 Park Avenue
270 Park Avenue
New York, New York 10166
New York, New York 10017
BNP Paribas Securities Corp.
Morgan Stanley & Co. Incorporated
787 Seventh Avenue
1585 Broadway
New York, New York 10019
New York, New York 10036
Citigroup Global Markets Inc.
UBS Securities LLC
388 Greenwich Street, 34th Floor
677 Washington Boulevard
New York, New York 10013
Stamford, Connecticut
06901
Deutsche Bank Securities Inc.
Wachovia Capital Markets, LLC
60 Wall Street
Attn: MTN
Syndicate
3rd Floor - Debt Capital Markets
301 South College Street
New York, New York 10005
NC0600
Charlotte, North Carolina 28288
Ladies and Gentlemen:
American General Finance Corporation, an Indiana corporation
(the "Company"), proposes to issue and sell
up to $7,500,000,000 aggregate
principal amount, or its equivalent in
foreign currencies, including the Euro,
or any composite currency, of its
Medium-Term Notes, Series I, due nine months
or more from date of issue (the
"Securities") and agrees with each of you
(individually, an "Agent", and
collectively, the "Agents") as set forth in this
Agreement.
Subject to the terms and conditions stated herein, the Company
hereby (i) appoints each Agent as an agent
of the Company for the purpose of
soliciting and receiving offers to purchase
the Securities from the Company and
(ii) agrees that whenever it determines to
sell Securities directly to any Agent
as principal for resale to others, it will,
if requested by such Agent, enter
into a separate agreement, substantially in
the form of Annex I hereto, relating
to
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such sale or another agreement (which may
be oral and confirmed in writing)
relating to the purchase by such Agent as
principal (each a "Terms Agreement"),
in each case in accordance with Section
2(b) hereof. The Company reserves the
right to sell Securities directly on its
own behalf and to enter into agreements
substantially identical hereto with other
broker-dealers as Agents. This
Agreement shall not be construed to create
either an obligation on the part of
the Company to sell any Securities or an
obligation of the Agents to purchase
Securities as principal.
The terms and rights of the Securities shall be as specified
in or established pursuant to the
Indenture, dated as of May 1, 1999 (as amended
or modified from time to time, the
"Indenture"), between the Company and
Citibank, N.A., as Trustee (the "Trustee").
The Securities shall have the
maturity ranges, annual interest rates (if
any), redemption provisions and other
terms set forth in the Prospectus referred
to below as it may be supplemented
from time to time. The Securities may be
issued in amounts denominated in United
States dollars or in amounts denominated in
foreign currencies, including the
Euro, or any composite currency. References
herein to amounts stated in United
States dollars shall be deemed to refer to
the equivalent amount of foreign
currency or composite currency to the
extent applicable. The Securities will be
issued, and the terms thereof established,
from time to time by the Company in
accordance with the Indenture and the
Administrative Procedure attached hereto
as Annex II (the "Procedure") and, if
applicable, such terms will be specified
in a related Terms Agreement.
1. The
Company represents and warrants to, and agrees
with each Agent that:
(a) A
registration statement on Form S-3 (Registration
No. 333-110318) in respect of
$7,500,000,000 aggregate principal amount of debt
securities, including the Securities, has
been filed with the Securities and
Exchange Commission (the "Commission");
such registration statement, in the form
heretofore delivered or to be delivered to
such Agent, has been declared
effective by the Commission; no other
document with respect to such registration
statement (other than the exhibits thereto,
certain of the documents
incorporated by reference therein and the
prospectus and prospectus supplement
filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the
"Act")) has heretofore been filed or
transmitted for filing with the Commission;
and no stop order suspending the
effectiveness of such registration statement
has been issued and no proceeding for that
purpose has been initiated or
threatened by the Commission (any
preliminary prospectus included in the
registration statement or filed with the
Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission
under the Act is hereinafter called
a "Preliminary Prospectus"; the various
parts of the registration statement,
including all exhibits thereto and the
documents incorporated by reference in
the prospectus contained in the
registration statement at the time such part of
the registration statement became effective
but excluding the Statement of
Eligibility (Form T-1), each as amended at
the time such part of the
registration statement became effective,
are hereinafter collectively called the
"Registration Statement"; the prospectus
(including, if applicable, any
prospectus supplement) relating to the
Securities, 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 this Agreement, is
hereinafter called the "Prospectus"; any
reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed
to refer to and include the documents
incorporated by reference therein pursuant
to the applicable form under the Act, as of
the date of such Preliminary
Prospectus or Prospectus, as the case may
be; any reference to any amendment or
supplement to any Preliminary Prospectus or
the Prospectus, including any
supplement to the Prospectus that
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sets forth only the terms of a particular
issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to
and include any documents filed after
the date of such Preliminary Prospectus or
Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and
incorporated therein by reference; any
reference to any amendment 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
Registration Statement that is incorporated by
reference in the Registration Statement;
and any reference to the Prospectus as
amended or supplemented shall be deemed to
refer to and include the Prospectus
as amended or supplemented (including by
the applicable Pricing Supplement filed
in accordance with Section 4(a) hereof) in
relation to Securities to be sold
pursuant to this Agreement, in the form
filed or transmitted for filing with the
Commission pursuant to Rule 424(b) under
the Act and in accordance with Section
4(a) hereof, including any documents
incorporated by reference therein as of the
date of such filing);
(b) The
documents incorporated by reference in the
Prospectus, when they became effective or
were filed with the Commission, as the
case may be, conformed in all material
respects to the requirements of the Act
or the Exchange Act, as applicable, and the
rules and regulations of the
Commission thereunder, and none of such
documents contained an untrue statement
of a material fact or omitted to state a
material fact necessary in order to
make the statements therein, in the light
of the circumstances under which they
were made, not misleading; and any further
documents so filed and incorporated
by reference in the Prospectus, when such
documents become effective or are
filed with the Commission, as the case may
be, will conform in all material
respects to the requirements of the Act or
the Exchange Act, as applicable, and
the rules and regulations of the Commission
thereunder, and will not contain an
untrue statement of a material fact or, in
the case of an Annual Report on Form
10-K, 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 any other
document filed under the Exchange Act, omit
to state a material fact necessary
in order to make the statements therein, in
the light of the circumstances under
which they were made, not misleading;
provided, however, that this
representation and warranty shall not apply
to any statements or omissions made
in reliance upon and in conformity with
information furnished in writing to the
Company by any Agent expressly for use in
the Prospectus as amended or
supplemented to relate to a particular
issuance of Securities, or to any
statements in any such document which does
not constitute part of the
Registration Statement or Prospectus
pursuant to Rule 412 under the Act;
(c) The
Registration Statement and the Prospectus
conform, and any amendments or supplements
thereto will conform, in all material
respects to the requirements of the Act and
the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and
the respective rules and regulations of
the Commission thereunder, and do not and
will not, as of the applicable
effective date, the date each Annual Report
on Form 10-K of the Company is
hereafter filed with the Commission and
each date referred to in the lead-in
paragraph to Section 6 hereof, as to the
Registration Statement and any
amendment thereto, and as of the applicable
filing date and each date referred
to in the lead-in paragraph to Section 6
hereof as to the Prospectus and any
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
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under which they were made, not misleading;
provided, however, that this
representation and warranty 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)
any statements or omissions made in
reliance upon and in conformity with
information furnished in writing to the
Company by any Agent expressly for use in
the Prospectus as amended or
supplemented to relate to a particular
issuance of Securities and (iii) any
statement which does not constitute part of
the Registration Statement or
Prospectus pursuant to Rule 412 under the
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) Since the
date of the latest audited financial
statements included or incorporated by
reference in the Prospectus, as amended
or supplemented, 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,
shareholder's 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,
as amended or supplemented;
(f) The series
constituting the Securities has been duly
authorized and established by all necessary
action by the Board of Directors,
and by the Terms and Pricing Committee of
the Board of Directors, of the Company
in conformity with the Indenture and, when
the terms of a particular Security
and of the issue and sale thereof have been
duly authorized and established by
any two of the authorized officers to whom
such authority has been delegated and
such Security has been duly completed,
executed, authenticated and issued in
accordance with the Indenture, and
delivered against payment therefor as
contemplated by this Agreement and any
applicable Terms Agreement, such Security
will have been duly executed,
authenticated, issued and delivered and will
constitute a valid and legally binding
obligation of the Company entitled to the
benefits provided by the Indenture; the
Indenture has been duly authorized and
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 Indenture conforms
and the Securities will conform in all
material respects to the descriptions
thereof in the Prospectus, as amended or
supplemented;
(g) The issue
and sale of the Securities and the
compliance by the Company with all of the
provisions of the Securities, the
Indenture, this Agreement and any Terms
Agreement, 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,
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breaches, defaults and violations that
would not have a material adverse effect
on the business, financial position,
shareholder's 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 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 solicitation of offers to purchase
Securities and the issue and sale of the
Securities or the consummation by the
Company of the other transactions
contemplated by this Agreement, any Terms
Agreement 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
Securities, and such consents, approvals,
authorizations, orders, registrations or
qualifications as have been, or will
have been prior to the date of this
Agreement, obtained under the 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 laws (including insurance laws of
any state relating to offers and
sales of securities in such state) in
connection with the solicitation by such
Agent of offers to purchase the Securities
from the Company and with purchases
of the Securities by such Agent as
principal, as the case may be, both in the
manner contemplated hereby; and
(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; and, at each Time of
Delivery (as defined in Section 2(b)
hereof), there will not be any 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 will
have had, 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.
2. (a)
On the
basis of the representations and
warranties, and subject to the terms and
conditions, herein set forth, each of
the Agents hereby severally and not jointly
agrees, as agent of the Company, to
use its best efforts to solicit and receive
offers to purchase the Securities
from the Company upon the terms and
conditions set forth herein and in the
Prospectus as amended or supplemented from
time to time.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time,
for any period of time or
permanently, the solicitation of offers to
purchase the Securities. Upon receipt
of instructions from the Company, the
Agents will forthwith suspend solicitation
of offers to purchase Securities from the
Company until such time as the Company
has advised the Agents that such
solicitation may be resumed. During such time
as the solicitation of offers to purchase
the Securities shall be suspended, the
Company shall not be required to comply
with the provisions of Sections 4(g),
4(h) and 4(i).
The Company agrees to pay each Agent a commission, at the time
of settlement of each sale of Securities by
the Company as a result of a
solicitation made by such Agent, in an
amount to be agreed to by the Company and
such Agent at the time of solicitation, it
being
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understood and agreed that the commissions
may not be the same for each Agent.
As Agents, you are authorized to solicit offers to purchase
the Securities only in authorized
denominations as set forth in the Prospectus
at a purchase price equal to 100% of their
principal amount unless otherwise
indicated in the applicable Pricing
Supplement to the Prospectus, as amended or
supplemented. Each Agent shall communicate
to the Company, orally or in writing,
each offer to purchase Securities other
than those rejected by such Agent. The
Company shall have the sole right to accept
offers to purchase Securities and
may reject any proposed purchase of
Securities as a whole or in part. The Agents
shall have the right, in their discretion
reasonably exercised, to reject any
offer to purchase Securities, as a whole or
in part, and any such rejection by
the Agents shall not be deemed a breach of
their agreements contained herein.
(b) Unless the
Company and the Agents otherwise agree,
each sale of Securities to any Agent as
principal shall be made in accordance
with the terms of this Agreement and a
Terms Agreement which will provide for
the sale of such Securities to, and the
purchase thereof by, such Agent. A Terms
Agreement may also specify certain
provisions relating to the reoffering of such
Securities by such Agent. The commitment of
any Agent to purchase Securities
pursuant to any Terms Agreement shall be
deemed to have been made on the basis
of the representations and warranties of
the Company herein contained and shall
be subject to the terms and conditions
herein set forth. Each Terms Agreement
shall include a specification of the
principal amount of Securities to be
purchased by any Agent pursuant thereto,
the price to be paid to the Company for
such Securities, the currency in which such
Securities are to be denominated,
any provisions relating to rights of, and
default by, underwriters acting
together with such Agent in the reoffering
of the Securities, and the time (each
a "Time of Delivery") and place of delivery
of and payment for such Securities.
Such Terms Agreement shall also specify any
requirements for officers'
certificates, opinions of counsel and
accountants' letters pursuant to Section 4
hereof.
(c) Procedural
details relating to the issue and delivery
of Securities, the solicitation of offers
to purchase, and purchases by any
Agent as principal of, Securities, and the
payment in each case therefor, are
set forth in the Procedure. Each Agent and
the Company agree to perform the
respective duties and obligations
specifically provided to be performed by each
of them in the Procedure as it may be
amended from time to time by written
agreement between the Agents and the
Company.
3. Any
documents required to be delivered pursuant to
Section 6 hereof shall be made available to
the Agents at the office of the
counsel to the Agents, Sidley Austin Brown
& Wood LLP, 787 Seventh Avenue, New
York, New York 10019.
4. The
Company covenants and agrees with each Agent:
(a) To make no
amendment or supplement (other than an
amendment or supplement as a result of the
Company's filing of its periodic
reports under the Exchange Act) to the
Registration Statement or the Prospectus
after the date of any Terms Agreement and
prior to the related Time of Delivery
which shall be reasonably disapproved by
any Agent that is a party to such Terms
Agreement promptly after reasonable notice
thereof; to make no such amendment
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or supplement (other than a Pricing
Supplement relating to the Securities or any
prospectus supplement which relates solely
to any offering of debt securities
other than the Securities) at any other
time prior to having afforded each Agent
a reasonable opportunity to review it; 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 for so long as the delivery of
a prospectus is required in
connection with the offering or sale of the
Securities, and during such same
period to advise each Agent, 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 an
amendment or supplement as a result of the
Company's filing of its periodic
reports under the Exchange Act and other
than a Pricing Supplement relating to
the Securities or any prospectus supplement
which relates solely to any offering
of debt securities other than the
Securities), 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
the 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, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from
time to time to take such action as
such Agent may reasonably request to
qualify the Securities for offering and
sale under the applicable securities and
insurance laws of such jurisdictions as
such Agent may request and to comply with
such laws so as to permit the
continuance of sales and dealings therein
for as long as may be necessary to
complete the distribution or sale of the
Securities; 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;
(c) To furnish
such Agent with copies of the Registration
Statement and each amendment thereto, and
with copies of the Prospectus as each
time amended or supplemented, other than
any Pricing Supplement (except as
provided in the Procedure) or amendment or
supplement relating solely to an
offering of securities other than the
Securities, in the form in which it is
filed with, or transmitted for filing to,
the Commission pursuant to Rule 424
under the Act, both in such quantities as
such Agent may reasonably request from
time to time; and, if the delivery of a
prospectus is required at any time
within nine (9) months after the sale of
the Securities (including Securities
purchased from the Company by such Agent as
principal) and if at such time any
event shall have occurred 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 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 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 such Agent as promptly as
practicable and request such Agent to suspend
solicitation of offers to purchase
Securities from the Company, in its capacity
as agent of the Company and, if so
notified, such Agent shall forthwith cease
such solicitations; and if the Company
shall decide
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to amend or supplement the Registration
Statement or the Prospectus as then
amended or supplemented, to so advise such
Agent promptly by telephone (with
confirmation in writing) and to 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;
provided, however, that if during such same
period such Agent continues to own
Securities purchased from the Company by such
Agent as principal, the Company shall
promptly prepare and file with the
Commission such an amendment or supplement,
the expense of such preparation and
filing to be borne by the Company if such
amendment or supplement occurs within
six months of the date of the relevant
Pricing Supplement and if after such six
month period, by such Agent;
(d) To 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 Act and covering each twelve month
period beginning not later than the
first day of the Company's fiscal quarter
next following the date of any sale of
Securities hereunder;
(e) That, from
the date of any Terms Agreement with such
Agent and continuing to and including the
earlier of (i) the termination of the
trading restrictions for the Securities
purchased thereunder, as notified to the
Company by such Agent and (ii) the related
Time of Delivery, the Company will
not, without the prior written consent of
such Agent, offer, sell, contract to
sell or otherwise dispose of any debt
securities of the Company which mature
more than nine (9) months after such Time
of Delivery and which are
substantially similar in currency, maturity
or other material terms to the
Securities;
(f) That each
acceptance by the Company of an offer to
purchase Securities hereunder, and each
sale of Securities to such Agent
pursuant to a Terms Agreement, shall be
deemed to be an affirmation to such
Agent that the representations and
warranties of the Company contained in or
made pursuant to this Agreement are true
and correct, in all material respects,
as of the date of such acceptance or of
such Terms Agreement as though made at
and as of such time (except that such
statements shall be deemed to relate to
the Registration Statement and the
Prospectus as amended and supplemented at
such time);
(g) That each
time (i) the Registration Statement or the
Prospectus shall be amended or supplemented
by a filing under the Act (other
than by a Pricing Supplement relating to
the Securities or an amendment or
supplement relating solely to an offering
of securities other than the
Securities), (ii) there is filed with the
Commission under the Exchange Act any
document incorporated by reference into the
Prospectus as amended or
supplemented (other than any Current Report
on Form 8-K relating exclusively to
the issuance of securities under the
Registration Statement, or, unless any
Agent shall otherwise request, to quarterly
or annual financial results of the
Company), and (iii) if so indicated in the
applicable Terms Agreement, the
Company sells Securities to such Agent
pursuant to a Terms Agreement, the
Company shall furnish or cause to be
furnished forthwith to such Agent a
certificate of officers of the Company
satisfactory to such Agent, dated the
date of filing with the Commission of such
supplement or document, the date of
effectiveness of such amendment, or the
date of such sale, as the case may be,
in form satisfactory to such Agent in its
reasonable judgment, to the effect
that the statements
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contained in the certificate referred to in
Section 6(f) hereof which was last
furnished to such Agent are true and
correct, in all material respects, at the
time of such amendment, supplement, filing
or sale, as the case may be, as
though made at and as of such time (except
that such statements shall be deemed
to relate to the Registration Statement and
the Prospectus as amended and
supplemented to such date) or, in lieu of
such certificate, a certificate of the
same tenor as the certificate referred to
in said Section 6(f) but modified to
relate to the Registration Statement and
the Prospectus as amended and
supplemented to the time of delivery of
such certificate;
(h) That each
time (i) the Registration Statement or the
Prospectus shall be amended or supplemented
by a filing under the Act (other
than by a Pricing Supplement relating to
the Securities or an amendment or
supplement providing solely for the
inclusion of additional financial
information or an amendment or supplement
relating solely to an offering of
securities other than the Securities), (ii)
there is filed with the Commission
under the Exchange Act any document
incorporated by reference into the
Prospectus as amended and supplemented
(other than any Current Report on Form
8-K or Quarterly Report on Form 10-Q,
unless any Agent shall otherwise request),
and (iii) if so indicated in the applicable
Terms Agreement, the Company sells
Securities to such Agent pursuant to a
Terms Agreement, the Company shall
furnish or cause to be furnished forthwith
to such Agent and to counsel to the
Agents a written opinion of Timothy M.
Hayes, Esq., General Counsel of the
Company, or other counsel satisfactory to
such Agent in its reasonable judgment,
dated the date of filing with the
Commission of such supplement or document, the
date of effectiveness of such amendment, or
the date of such sale, as the case
may be, in form and substance satisfactory
to such Agent in its reasonable
judgment, of the same tenor as the opinion
referred to in Section 6(c) hereof,
but modified to relate to the Registration
Statement and the Prospectus as
amended and supplemented to the time of
delivery of such opinion; or, in lieu of
such opinion, the counsel last furnishing
such opinion to the Agents shall
furnish the Agents with a letter to the
effect that such Agent may rely on the
opinion referred to in Section 6(c) hereof
which was last furnished to such
Agent to the same extent as though it were
dated the date of such letter
authorizing reliance (except that
statements in such last opinion shall be
deemed to relate to the Registration
Statement and the Prospectus as amended and
supplemented to the time of delivery of
such letter authorizing reliance); and
(i) That each
time (i) the Registration Statement or the
Prospectus shall be amended or supplemented
by a filing under the Act to include
additional financial information, (ii)
there is filed with the Commission under
the Exchange Act any document incorporated
by reference into the Prospectus as
amended and supplemented which contains
additional financial information (other
than any Current Report on Form 8-K
relating exclusively to quarterly or annual
financial results of the Company, or,
unless any Agent shall otherwise request,
any Quarterly Report on Form 10-Q), or
(iii) if so indicated in the applicable
Terms Agreement, the Company sells
Securities to such Agent pursuant to a Terms
Agreement, the Company shall cause the
independent public accountants which have
audited the financial statements of the
Company and its subsidiaries included or
incorporated by reference in the Prospectus
as amended and supplemented
forthwith to furnish the Agents (or, in the
case of clause (iii) above, such
Agents as are party to such Terms
Agreement) a letter, dated the date of filing
with the Commission of such supplement or
document, the date of effectiveness of
such amendment, or the date of such sale,
as the case may be, in form
satisfactory to such Agent in its
reasonable judgment, of the same tenor as the
letter referred to in Section 6(d) hereof,
but modified to relate to the
Registration Statement and the Prospectus
as amended and supplemented to the
date of
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<PAGE>
such letter, with such changes as may be
necessary to reflect changes in the
financial statements and other information
derived from the accounting records
of the Company; provided, however, that
where such amendment or supplement only
sets forth unaudited quarterly financial
information, the scope of such letter
may be limited to relate to such unaudited
financial information unless any
other accounting or financial information
included therein is of a character
that, in the reasonable judgment of such
Agent, such other information should be
addressed by such letter.
5.
The
Company covenants and agrees with each Agent that
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
Securities under the Act and all other
expenses in connection with the
preparation, printing and filing of the
Registration Statement, any Preliminary
Prospectus, and the Prospectus and
amendments and supplements thereto and the
mailing and delivering of copies
thereof to such Agent; (ii) the reasonable
fees and expenses of counsel for the
Agents in connection with the establishment
of the program for the issuance of
the Securities and, except where Securities
are sold to one or more Agents
acting as principal, incurred from time to
time in connection with the
transactions contemplated hereby; (iii) the
cost of printing, word-processing or
reproducing this Agreement, any Terms
Agreement, the Indenture, any Blue Sky and
Legal Investment Memoranda and any other
documents in connection with the
offering, purchase, sale and delivery of
the Securities; (iv) all expenses in
connection with the qualification of the
Securities for offering and sale under
state securities laws as provided in
Section 4(b) hereof, including fees and
disbursements of the Agent's counsel in
connection with such qualification and
in connection with the Blue Sky and legal
investment surveys; (v) any fees
charged by security rating services for
rating the Securities; (vi) the cost of
preparing the Securities, including any
fees and expenses relating to the use of
book-entry securities; (vii) the fees and
expenses of any Trustee and any
Calculation Agent and any agent of any
Trustee and the fees and disbursements of
counsel for any Trustee in connection with
any Indenture and the Securities;
(viii) any advertising expenses connected
with the solicitation of offers to
purchase and the sale of Securities so long
as such advertising expenses have
been approved by the Company; and (ix) all
other costs and expenses incident to
the performance of its obligations
hereunder which are not otherwise
specifically provided for in this Section.
Each Agent shall pay all other fees
and expenses it incurs.
6. The
obligation of any Agent, as agent of the Company,
to solicit offers to purchase the
Securities and the obligation of any Agent to
purchase Securities as principal, pursuant
to any Terms Agreement, shall be
subject, in such Agent's reasonable
discretion, to the condition that all
representations and warranties and other
statements of the Company herein are
true and correct, in all material respects,
at and as of the date of this
Agreement, the date of each such
solicitation, any settlement date related to
the acceptance of such an offer, and each
Time of Delivery, the condition that
the Company shall have performed, in all
material respects, all of its
obligations hereunder theretofore in each
case to be performed and the following
additional conditions, where
applicable:
(a)
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 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
10
<PAGE>
Commission shall have been complied with to
the reasonable satisfaction of such
Agent;
(b) Such Agent
shall have received, upon its request,
from Sidley Austin Brown & Wood LLP,
counsel to the Agents, such opinion, dated
the date of this agreement or the Time of
Delivery as specified in the
applicable Terms Agreement, with respect to
the incorporation of the Company,
the validity of the Securities, the
Registration Statement, the Prospectus as
amended or supplemented, and other related
matters as such Agent 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 M. Hayes, Esq., General
Counsel of the Company (or other counsel
licensed to practice in the State of
Indiana) referred to in Section 6(c);
(c) Such Agent
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 such Agent, dated
the date hereof or the applicable
date referred to in Section 4(h), as the
case may be, 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
(and if the opinion is being given pursuant
to Section 4(h) hereof as a result
of the Company having entered into a Terms
Agreement requiring such opinion, the
applicable Terms Agreement);
(ii)
Each of the subsidiaries of the Company has been duly
incorporated and is validly existing as a
business corporation or an insurer, as
the case may be, and is in good standing
under the laws of its jurisdiction of
incorporation, with corporate power and
authority to own, lease and operate its
properties and conduct its business as
described in the 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
11
<PAGE>
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
Agents) of local counsel and of counsel
for the subsidiaries, such counsel being
acceptable to counsel for the Agents,
copies of which shall be furnished to each
Agent; and in respect of matters of
fact upon certificates of 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 best 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
Securities, the compliance by the Company with
all of the provisions of the Securities,
the Indenture, this Agreement (and, if
the opinion is being given pursuant to
Section 4(h) hereof as a result of the
Company having entered into a Terms
Agreement requiring such opinion, the
applicable Terms Agreement), and the
consummation of the transactions herein and
therein contemplated will not (A) conflict
with or result in a breach or
violation of any of the terms or provisions
of, or constitute a default under,
any contract, indenture, mortgage, deed of
trust, loan agreement or other
agreement or instrument for money borrowed
to which the Company or any of its
subsidiaries is a party or by which the
Company or any of its subsidiaries is
bound or to which any of the property or
assets of the Company or any of its
subsidiaries is subject, or (B) result in
any violation of (x) the provisions of
the Restated Articles of Incorporation, as
amended, or the Amended and Restated
By-Laws of the Company or (y) any statute,
order, rule, regulation, judgement,
writ or decree known to such counsel of any
court or governmental agency or body
having jurisdiction over the Company or any
of its subsidiaries or any of their
properties, in any manner which, in the
case of clauses (A) and (B)(y), would
have a material adverse effect on the
business of the Company and its
subsidiaries taken as a whole (such counsel
being entitled to rely in respect of
the opinion in this clause (iv) with
respect to subsidiaries upon opinions (in
form and substance satisfactory to the
Agents) of counsel for the subsidiaries,
such counsel being acceptable to counsel
for the Agents, copies of which shall
be furnished to each Agent, provided that
such counsel shall state that he or
she believes that he or she is justified in
relying upon such opinions);
(v) No
consent, approval, authorization, order,
registration or qualification of
12
<PAGE>
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 Securities or the
consummation by the Company of the
other transactions contemplated by this
Agreement (and, if the opinion is being
given pursuant to Section 4(h) hereof as a
result of the Company having entered
into a Terms Agreement requiring such
opinion, the applicable Terms Agreement)
or the Indenture, except such as may be
required under the 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;
(vi)
This Agreement (and, if the opinion is being given
pursuant to Section 4(h) hereof as a result
of the Company having entered into a
Terms Agreement requiring such opinion, the
applicable Terms Agreement) has been
duly authorized, executed and delivered by
the Company;
(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 form
of the Securities to be issued has been
authorized in or pursuant to the Indenture,
the Securities have been duly
authorized by all necessary action by the
Board of Directors, and by the Terms
and Pricing Committee of the Board of
Directors, of the Company and, when the
variable terms of the Securities have been
established by any two of the
authorized officers to whom such authority
has been delegated and the Securities
have been executed and authenticated as
specified in the Indenture and delivered
against payment of the consideration
therefor determined in accordance with this
Agreement (and, if the opinion is being
given pursuant to Section 4(h) hereof as
a result of the Company having entered into
a Terms Agreement requiring such
opinion, in accordance with the applicable
Terms Agreement), (A) the Securities
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, and (B)
each holder of 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 the Notes", "Certain United
States Federal Income Tax Considerations",
and "Description of Debt Securities",
or any caption purporting to cover such
matters, to the extent that such
information constitutes matters of law,
summaries of legal matters, or legal
conclusions, has been reviewed by 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 Act
and, to the best of such counsel's
knowledge and information, no stop order
suspending the effectiveness of the
13
<PAGE>
Registration Statement has been issued
under the Act and no proceeding for that
purpose has been initiated or threatened by
the Commission;
(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 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 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 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 (and, if
the opinion is being given pursuant to
Section 4(h) hereof as a result of the
Company having entered into a Terms
Agreement requiring such opinion, as of the
date of such Terms Agreement), contained an
untrue statement of a material fact
or omitted to state a material fact
required to be stated therein or necessary
to make the 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 at the
date of this Agreement (or, if the
opinion is being given pursuant to Section
4(h) hereof, as amended or
supplemented at the date of such opinion
and, if being given as a result of the
Company having entered into a Terms
Agreement requiring such opinion, as amended
or supplemented at the date of such Terms
Agreement and the settlement date with
respect thereto), 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(b).
The opinions set forth in (vii) and (viii) above may be
further limited by the inclusion of a
statement to the effect that insofar as
such opinions relate to Securities
14
<PAGE>
denominated in a currency other than United
States dollars, the effective
enforcement of a foreign currency claim in
the federal or state courts of the
State of New York may be limited by
requirements that a claim (or a foreign
currency judgement in respect of such a
claim) be converted into United States
dollars at the rate of exchange prevailing
on the judgement date.
(d) At 11:00
A.M., New York City time, on the date hereof
and on any applicable date referred to in
Section 4(i), the independent
accountants who have certified the
financial statements of the Company and its
subsidiaries included or incorporated by
reference in the Registration Statement
shall have furnished to such Agent a letter
or letters, dated such applicable
date, in form and substance satisfactory to
such Agent, to the effect set forth
in Annex III hereto;
(e) Since the
respective dates as of which information is
given in the Prospectus, as amended or
supplemented, and since the date of any
applicable Terms Agreement, 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 Agents, materially
impairs the investment quality of the
Securities;
(f) The
Company shall have furnished or caused to be
furnished to such Agent a certificate of
the Chairman, the President, or a Vice
President and the Treasurer or Assistant
Treasurer of the Company, dated the
date hereof and any applicable date
referred to in Section 4(g), 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, as of such applicable date, 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 such
applicable 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 are 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 Adverse Change, otherwise than
as set forth or contemplated in the
Prospectus as amended or supplemented; and
(g) During the
period between the date of any Terms
Agreement and the related Time of Delivery,
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 such Agent, is
to make it impracticable or
inadvisable to proceed with the
solicitation by such Agent of offers to purchase
Securities or the purchase by such Agent of
Securities from the Company as
principal on the terms and in the manner
contemplated by 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) 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 of such Terms
Agreement, if the effect of any such event
in the reasonable judgment of such
Agent is to make it impracticable or
inadvisable to proceed with the
solicitation by such Agent of offers to
purchase Securities or the purchase of
Securities by such Agent from the Company
as principal on the terms and in the
manner contemplated by the
15
<PAGE>
Prospectus, as amended or supplemented;
(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 such Agent is to
make it impracticable or inadvisable to
proceed with the solicitation by such Agent
of offers to purchase Securities or
the purchase of Securities by such Agent
from the Company as principal on the
terms and in the manner contemplated by the
Prospectus, as amended or
supplemented; or (v) 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 Act.
7. (a)
The
Company will indemnify and hold harmless
each Agent against any losses, claims,
damages or liabilities, joint or several,
to which such Agent may become subject,
under the Act, the Exchange 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 as
amended or supplemented, and any other
prospectus relating to the Securities 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 such Agent for any legal
or other expenses reasonably incurred by it
i
