-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HfrKqlf7hLgjHLYAgoOo9k+1kju4++malgXi61XVzsELJoveRBfQ4fhBQJPRAelM B+SErjKIp1PAzypHISCYSA== 0000950123-06-009466.txt : 20060726 0000950123-06-009466.hdr.sgml : 20060726 20060726170657 ACCESSION NUMBER: 0000950123-06-009466 CONFORMED SUBMISSION TYPE: S-3ASR PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20060726 DATE AS OF CHANGE: 20060726 EFFECTIVENESS DATE: 20060726 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN GENERAL FINANCE CORP CENTRAL INDEX KEY: 0000025598 STANDARD INDUSTRIAL CLASSIFICATION: PERSONAL CREDIT INSTITUTIONS [6141] IRS NUMBER: 350416090 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-136056 FILM NUMBER: 06982225 BUSINESS ADDRESS: STREET 1: 601 NW SECOND ST CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124248031 FORMER COMPANY: FORMER CONFORMED NAME: CREDITHRIFT FINANCIAL CORP DATE OF NAME CHANGE: 19890330 S-3ASR 1 y23463sv3asr.txt S-3ASR AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 26, 2006 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- AMERICAN GENERAL FINANCE CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) INDIANA 35-0416090 (STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NUMBER) ORGANIZATION)
--------------------- 601 N.W. SECOND STREET EVANSVILLE, INDIANA 47708 (812) 424-8031 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) --------------------- THOMAS D. GRABER, ESQ. AMERICAN GENERAL FINANCE CORPORATION P.O. BOX 59 EVANSVILLE, INDIANA 47701 (812) 424-8031 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) COPY TO: JOHN H. NEWMAN, ESQ. SIDLEY AUSTIN LLP 787 SEVENTH AVENUE NEW YORK, NEW YORK 10019 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement as determined in light of market conditions. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [X] If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [ ] CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------------------- TITLE OF EACH CLASS OF SECURITIES AMOUNT TO PROPOSED MAXIMUM AMOUNT OF TO BE REGISTERED BE REGISTERED AGGREGATE OFFERING PRICE REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------------------- Debt Securities(1)........................ (2) (2) (3) - --------------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------------
(1) This Registration Statement also registers delayed delivery contracts which may be issued by the registrant under which the counterparty may be required to purchase Debt Securities. (2) An unspecified amount of Debt Securities is being registered. The registrant is relying on Rule 456(b) and Rule 457(r). (3) Deferred in reliance upon Rule 456(b) and Rule 457(r), except for $1,190,600 that has already been paid with respect to $10,168,114,000 aggregate initial offering price of securities that were previously registered pursuant to Registration Statement Nos. 333-110318 and 333-126535, which were filed on November 7, 2003 and July 12, 2005, respectively, and declared effective on December 3, 2003 and July 29, 2005, respectively, and were not sold thereunder. Pursuant to Rule 457(p) under the Securities Act, such unutilized filing fees may be applied to the filing fee payable pursuant to this Registration Statement. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PROSPECTUS AMERICAN GENERAL FINANCE CORPORATION DEBT SECURITIES --------------------- We may sell our debt securities at one or more times. The debt securities will be our direct unsecured obligations and will rank equally with all of our other unsecured and unsubordinated indebtedness. We may sell the debt securities in multiple series with the terms of each series to be determined at the time of sale. We will provide the specific terms of the series of debt securities being offered at any time in one or more supplements to this prospectus. This prospectus may be used to offer and sell debt securities only if accompanied by a prospectus supplement. You should read carefully both this prospectus and any prospectus supplement before you invest. --------------------- Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. --------------------- THE DATE OF THIS PROSPECTUS IS JULY 26, 2006. ABOUT THIS PROSPECTUS This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a "shelf" registration process. Under this shelf process, we may sell debt securities in one or more offerings. This prospectus provides you with a general description of the debt securities. Each time we offer to sell any of the debt securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering and the debt securities being offered. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement together with the registration statement and its exhibits and the additional information described under the headings "Where You Can Find More Information" and "Incorporation of Information We File with the SEC". WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly, current and special reports and other information with the SEC. Our SEC filings, including the registration statement, the indenture under which the debt securities are to be issued and other information about us, are available to the public over the Internet at the SEC's web site at http://www.sec.gov. The address of the SEC's web site is provided solely for the information of prospective investors and is not intended to be an active link. You may read and copy any document we file by visiting the SEC's public reference room in Washington, D.C. The SEC's address in Washington, D.C. is 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information about the public reference room. INCORPORATION OF INFORMATION WE FILE WITH THE SEC The SEC allows us to "incorporate by reference" into this prospectus some of the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus. We incorporate by reference the following documents (other than information contained in the documents that is deemed not to be filed): -- our Annual Report on Form 10-K for the fiscal year ended December 31, 2005; -- our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2006; -- our Current Report on Form 8-K filed with the SEC on March 24, 2006; -- any other documents that we file with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the termination of the offering being made by this prospectus; and -- the indenture under which the debt securities are to be issued, which is incorporated by reference as an exhibit to the registration statement that contains this prospectus. Some of the information in our later SEC filings will update and supersede information in this prospectus and in our prior SEC filings. You may request a copy of any document we incorporate by reference (excluding exhibits, unless specifically incorporated by reference into such documents), at no cost, by writing us at 601 N.W. Second Street, Evansville, Indiana 47708, Attention: Treasury Department. You may also telephone our Treasury Department at (812) 424-8031. --------------------- You should rely only on the information contained or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone else to provide you with different information. If anyone provides you with different information, you should not rely on it. We are only offering these debt securities in jurisdictions where the offer is permitted. You should not assume that the information in this prospectus or in any prospectus supplement is accurate as of any date other than the date on the front of those documents. Our business, financial condition and results of operations may have changed since that date. 2 SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS This prospectus and the documents incorporated by reference may include, and our officers and representatives may from time to time make, statements which may constitute "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. These statements are not historical facts but instead represent only our belief regarding future events, many of which are inherently uncertain and outside of our control. These statements may address, among other things, our strategy for growth, product development, regulatory approvals, market position, financial results and reserves. Our actual results and financial condition may differ from the anticipated results and financial condition indicated in these forward-looking statements. The important factors, many of which are outside of our control, which could cause our actual results to differ, possibly materially, include, but are not limited to, the following: -- changes in general economic conditions, including the interest rate environment in which we conduct business and the financial markets through which we access capital and invest cash flows from the insurance business segment; -- changes in the competitive environment in which we operate, including the demand for our products, customer responsiveness to our distribution channels and the formation of business combinations among our competitors; -- the effectiveness of our credit risk scoring models in assessing the risk of customer unwillingness or inability to repay; -- shifts in collateral values, contractual delinquencies and credit losses; -- levels of unemployment and personal bankruptcies; -- our ability to access capital markets and maintain our credit rating position; -- changes in laws, regulations, or regulator policies and practices that affect our ability to conduct business or the manner in which we conduct business, such as licensing requirements, pricing limitations or restrictions on the method of offering products; -- the costs and effects of any litigation or governmental inquiries or investigations that are determined adversely to us; -- changes in accounting standards or tax policies and practices and the application of such new policies and practices to the manner in which we conduct business; -- our ability to integrate the operations of any acquisitions into our businesses; -- changes in our ability to attract and retain employees or key executives to support our businesses; -- natural or accidental events such as earthquakes, hurricanes, tornadoes, fires, or floods affecting our customers and collateral and our branches or other operating facilities; and -- war, acts of terrorism, riots, civil disruption, pandemics, or other events disrupting business or commerce. We also direct you to other risks and uncertainties discussed in other documents we file with the SEC, including in "Item 1A. Risk Factors" in Part I of our Annual Report on Form 10-K for the fiscal year ended December 31, 2005. We are under no obligation (and expressly disclaim any obligation) to update or alter any forward-looking statement, whether written or oral, that we may make from time to time, whether as a result of new information, future events or otherwise. 3 AMERICAN GENERAL FINANCE CORPORATION We are a financial services holding company with subsidiaries engaged in the consumer finance and credit insurance businesses. We were incorporated in Indiana in 1927 as successor to a business started in 1920. All of our common stock is owned by American General Finance, Inc., an Indiana corporation. American General Finance, Inc. is an indirect wholly-owned subsidiary of American International Group, Inc., or AIG, a Delaware corporation. AIG is a holding company which, through its subsidiaries, is engaged in a broad range of insurance and insurance-related activities, financial services and asset management in the United States and abroad. At December 31, 2005, we had 1,453 branch offices in 44 states, Puerto Rico and the U.S. Virgin Islands and approximately 9,700 employees. Our principal executive offices are located at 601 N.W. Second Street, Evansville, Indiana 47708, and our telephone number is (812) 424-8031. USE OF PROCEEDS Unless the applicable prospectus supplement states otherwise, we will use the net proceeds we receive from the sale of the debt securities: -- to repay debt; -- to make loans to customers; -- to purchase receivables; and/or -- for other general corporate purposes. We may temporarily invest the net proceeds in short-term marketable securities to earn income until we use the funds for these purposes. 4 SELECTED FINANCIAL INFORMATION We have derived the following selected financial information from our consolidated financial statements as of and for each of the years ended December 31, 2005, 2004, 2003 and 2002, which were audited by PricewaterhouseCoopers LLP, and as of and for the year ended December 31, 2001, which were audited by other independent auditors, and from our unaudited consolidated financial statements as of and for the three-month periods ended March 31, 2006 and March 31, 2005 (Restated). You should read this information in conjunction with the consolidated financial statements and related notes and other financial information, including "Management's Discussion and Analysis of Financial Condition and Results of Operations", contained in the documents incorporated by reference in this prospectus. See "Where You Can Find More Information". The results for the three months ended March 31, 2006 are not necessarily indicative of the results that may be achieved for the full year ending December 31, 2006.
THREE MONTHS THREE MONTHS ENDED YEARS ENDED DECEMBER 31, ENDED MARCH 31, 2005 -------------------------------------------------------------- MARCH 31, 2006 (RESTATED)(A) 2005 2004 2003 2002 2001 -------------- -------------- ---------- ---------- ---------- ---------- ---------- (DOLLARS IN THOUSANDS) Revenues: Finance charges..... $588,171 $531,324 $2,263,985 $1,917,288 $1,712,094 $1,678,923 $1,668,613 Insurance........... 39,107 42,509 161,033 176,840 181,642 191,230 195,393 Net service fees from affiliates... 51,153 59,992 313,936 191,373 48,318 3,094 -- Investment.......... 22,737 20,922 81,654 91,918 82,115 85,819 86,662 Other............... 20,511 46,091 77,904 43,081 138,204 21,908 24,868 -------- -------- ---------- ---------- ---------- ---------- ---------- Total revenues........ 721,679 700,838 2,898,512 2,420,500 2,162,373 1,980,974 1,975,536 -------- -------- ---------- ---------- ---------- ---------- ---------- Expenses: Interest expense.... 254,086 190,509 866,203 626,401 538,858 553,877 620,487 Operating expenses: Salaries and benefits........ 144,207 130,449 533,182 491,050 406,807 309,214 293,991 Other operating expenses........ 76,281 73,639 296,221 280,699 268,821 241,973 235,975 Provision for finance receivable losses............ 31,992 63,217 326,720 264,718 308,451 296,365 284,735 Insurance losses and loss adjustment expenses.......... 15,809 17,148 66,347 76,681 67,849 83,275 88,111 Other charges....... -- -- -- -- -- -- 58,020(b) -------- -------- ---------- ---------- ---------- ---------- ---------- Total expenses........ 522,375 474,962 2,088,673 1,739,549 1,590,786 1,484,704 1,581,319 -------- -------- ---------- ---------- ---------- ---------- ---------- Income before provision for income taxes............... 199,304 225,876 809,839 680,951 571,587 496,270 394,217 Provision for income taxes............... 73,483 82,421 294,989 210,964 208,014 146,775 141,426 -------- -------- ---------- ---------- ---------- ---------- ---------- Net income............ $125,821 $143,455 $ 514,850 $ 469,987 $ 363,573 $ 349,495 $ 252,791 ======== ======== ========== ========== ========== ========== ==========
5
DECEMBER 31, MARCH 31, 2005 ------------------------------------------------------------------- MARCH 31, 2006 (RESTATED)(A) 2005 2004 2003 2002 2001 -------------- -------------- ----------- ----------- ----------- ----------- ----------- (DOLLARS IN THOUSANDS) Net finance receivables........ $23,020,514 $21,079,938 $22,869,757 $19,739,886 $14,838,489 $13,574,338 $11,718,580 Total assets......... 25,870,451 23,479,343 25,659,878 22,093,808 16,771,141 15,400,722 13,447,626 Short-term debt...... 4,545,607 3,958,603 3,492,014 4,002,472 3,184,529 3,061,141 4,578,637 Long-term debt (including current portion)........... 17,220,692 15,586,553 18,092,860 14,481,059 10,686,887 9,566,256 6,300,171 Total shareholder's equity............. 3,191,159 2,888,681 3,180,725 2,732,473 2,051,429 1,809,928 1,545,927
- --------------- (a) The restatement related to the correction of errors in our accounting for four cross currency swaps designated as hedges of our foreign currency denominated debt. For a further description of the restatement, please refer to our Annual Report on Form 10-K for the fiscal year ended December 31, 2005 which is incorporated by reference in this prospectus. (b) In September 2001, we recorded one-time charges totaling $58.0 million, resulting from AIG's and our joint assessment of the business environment and post business combination plans. These charges recognized that certain assets had no future economic benefit or ability to generate future revenues. RATIO OF EARNINGS TO FIXED CHARGES Our historical consolidated ratios of earnings to fixed charges for each of the periods indicated were as follows:
THREE MONTHS ENDED YEARS ENDED DECEMBER 31, THREE MONTHS ENDED MARCH 31, 2005 ------------------------------------------------------------------------ MARCH 31, 2006 (RESTATED) 2005 2004 2003 2002 2001 - ------------------ ------------------ ------------ ------------ ------------ ------------ ------------ 1.77 2.16 1.92 2.06 2.03 1.87 1.62
For purposes of calculating the ratio of earnings to fixed charges, earnings consist of income before provision for income taxes, plus fixed charges. Fixed charges consist of interest expense on debt and a portion of rent that is considered interest. 6 DESCRIPTION OF DEBT SECURITIES The debt securities will be issued under an indenture dated as of May 1, 1999 between us and Wilmington Trust Company (successor trustee to Citibank, N.A.), as Trustee. As used in this prospectus, "debt securities" means the securities that we issue and that the Trustee or its agent (Citibank, N.A.) authenticates under the indenture. Capitalized terms used but not defined under this caption of the prospectus have the meanings given to them in the indenture. We have summarized selected terms and provisions of the indenture below. The following summary of the material provisions of the indenture is not complete and is subject to, and is qualified in its entirety by reference to, all provisions of the indenture. In the summary, we have included references to section numbers of the indenture so that you can easily locate the summarized provisions. If you would like more information on any of these provisions, you should read the relevant sections of the indenture. See "Where You Can Find More Information" and "Incorporation of Information We File with the SEC". The indenture allows us to issue debt securities in bearer form. Because we do not intend to issue debt securities in bearer form under this prospectus, we have not described the related provisions of the indenture. If we elect to issue debt securities in bearer form, we will describe the related provisions of the indenture in the prospectus supplement relating to the applicable series of debt securities. TERMS OF DEBT SECURITIES The prospectus supplement relating to a series of debt securities being offered will include the specific terms of those debt securities and may include modifications of or additions to the general terms described in this prospectus. The specific terms will include some or all of the following: -- the title of the debt securities; -- the aggregate principal amount of the debt securities, and whether the principal amount will be determined with reference to an index, formula or other method; -- if other than U.S. dollars, the currency in which payment of the principal of, and interest on, the debt securities will be payable; -- the percentage of their principal amount at which the debt securities will be issued and, in the case of Original Issue Discount Securities, the principal amount that will be payable if their maturity is accelerated; -- the date or dates on which the principal of the debt securities will be payable, or the manner in which the payment date or dates will be determined; -- whether the debt securities will bear interest at a fixed or variable rate and, as applicable: -- the interest rate or the manner in which the interest rate is determined, -- the date from which interest will accrue, -- the record and interest payment dates for the debt securities, and -- the first interest payment date; -- the places where payments on the debt securities will be made (if other than New York City) and where the debt securities may be surrendered for registration of transfer or exchange; -- any provision that would obligate or permit us to repurchase, redeem or repay some or all of the debt securities; -- whether the debt securities will be issued in the form of one or more global debt securities and, if so, the identity of the depositary for the global debt securities; -- any deletions from, modifications of or additions to the Events of Default or our covenants with respect to the debt securities; and -- any other material terms of the debt securities. The indenture does not limit the amount of debt securities we may issue under it. It permits us to issue debt securities from time to time in one or more series, in an aggregate principal amount authorized by us before each issuance. We may issue multiple series of debt securities with different terms or "reopen" a previous series of debt securities and issue additional debt securities of that series. Section 301 of the indenture. 7 Unless the applicable prospectus supplement states otherwise, we will issue debt securities in denominations of $1,000 and multiples of $1,000. We may issue debt securities denominated in foreign currencies, in each case as specified in the applicable prospectus supplement. Section 302 of the indenture. Unless the applicable prospectus supplement states otherwise, you may transfer or exchange fully registered securities at the corporate trust office of the Trustee or at any other office maintained for that purpose. There will be no service charge for any transfer or exchange of debt securities, but we may require a payment to cover any tax or other governmental charge related to the transfer or exchange, other than exchanges pursuant to the indenture not involving any transfer. Section 305 of the indenture. One or more series of debt securities may provide that if their maturity is accelerated under the indenture, the amount due and payable will be less than their stated principal amount. These are referred to as "Original Issue Discount Securities". Section 101 of the indenture. An Original Issue Discount Security would be issued at a discount from its stated principal amount and would bear interest at a below-market rate or not at all. Under applicable federal income tax laws and regulations, if a debt security is issued at a discount and the amount of discount exceeds a de minimis amount, then regardless of whether the debt security meets the indenture's definition of "Original Issue Discount Security", the holder of the debt security would be required to include amounts in gross income for federal income tax purposes before receiving the related cash. The prospectus supplement relating to any debt securities subject to these laws and regulations will describe the federal income tax consequences and other special considerations that you should consider before purchasing them. Unless the applicable prospectus supplement states otherwise, we will pay the principal of, and any premium or interest on, debt securities issued in certificated form at a designated office of the Trustee in New York City. At our option, we may pay interest by check, wire transfer or any other means permitted under the terms of the debt securities. Unless otherwise stated in the applicable prospectus supplement, we will pay interest by check mailed to the persons in whose names the debt securities are registered on the applicable record dates. Payments on global debt securities will be made to the depositary or its nominee in accordance with the then-existing arrangements between the paying agent(s) for the global debt securities and the depositary. See "-- Global Debt Securities". Sections 307 and 1002 of the indenture. RANKING The debt securities will be our unsecured and unsubordinated obligations and will rank equally with all of our other unsecured and unsubordinated outstanding indebtedness. All debt securities issued under the indenture will rank equally with each other, including other debt securities previously issued under the indenture. The indenture does not limit the amount of indebtedness that we may incur. Unless the applicable prospectus supplement states otherwise, the debt securities will not benefit from any covenant or other provision that would afford holders of the debt securities protection in the event of a highly-leveraged transaction or other transaction that may adversely affect holders of the debt securities, except as described under "-- Limitations on Liens" and "-- Merger and Consolidation". Because we are a holding company and conduct our operations through our Subsidiaries, holders of the debt securities will generally have a junior position to claims of creditors of our operating Subsidiaries, except to the extent that our claims as a creditor of our Subsidiaries may be recognized. LIMITATIONS ON LIENS The indenture provides that neither we nor any of our Subsidiaries may create, assume or allow to exist, except in favor of us or one of our Wholly-owned Subsidiaries, any Mortgage on any of our property or their property, unless the debt securities will be secured equally and ratably. This restriction does not apply to, among other things: -- any Mortgage existing on May 1, 1999; -- any Mortgage on properties or assets, in addition to those otherwise permitted, securing Indebtedness which at the time incurred does not, together with all other Indebtedness so secured and not otherwise permitted, exceed in the aggregate 10% of Consolidated Net Worth; 8 -- any Mortgage on properties or assets securing Indebtedness of any Subsidiary, created in the ordinary course of business by the Subsidiary, if, as a matter of practice, the Subsidiary, before becoming a Subsidiary, had incurred Indebtedness on a secured basis; -- any Mortgage on our property or the property of any of our Subsidiaries if the principal amount of the Indebtedness securing the Mortgage does not exceed 75% of the cost of the property and if the Mortgage is: -- a Mortgage on property acquired or constructed by us or any of our Subsidiaries after May 1, 1999, which Mortgage is: -- a purchase money Mortgage created to secure the purchase price of the property (or to secure Indebtedness incurred for the purpose of financing the acquisition or construction of the property), or -- a Mortgage existing on the property at the time we acquired it, or -- a Mortgage existing on any property of any corporation at the time it becomes a Subsidiary, or -- a Mortgage with respect to property acquired after May 1, 1999; -- refundings or extensions of any permitted Mortgage; and -- any Mortgage created by us or any Subsidiary in connection with a transaction intended by us or the Subsidiary to be one or more sales of properties or assets, provided that the Mortgage only applies to the properties or assets involved in the sale or sales, the income from those properties or assets and/or the proceeds of those properties or assets. Section 1007 of the indenture. "Mortgage" means any mortgage, pledge, lien, security interest, conditional sale or other title retention agreement or other similar encumbrance. Section 101 of the indenture. EVENTS OF DEFAULT, NOTICE AND WAIVER Unless otherwise indicated in the prospectus supplement relating to a particular series of debt securities, if an Event of Default with respect to any debt securities of any series occurs and is continuing, the Trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may declare, by notice as provided in the indenture, the principal amount, or a lesser amount if provided for in the debt securities of that series, of all the debt securities of that series due and payable immediately. However, in the case of an Event of Default involving certain events in bankruptcy, insolvency or reorganization, acceleration will occur automatically. If all Events of Default with respect to debt securities of that series have been cured or waived, and all amounts due otherwise than because of the acceleration have been paid or deposited with the Trustee, the holders of a majority in aggregate principal amount of the outstanding debt securities of that series may rescind the acceleration and its consequences. Section 502 of the indenture. If the maturity of Original Issue Discount Securities is accelerated, an amount less than the principal amount will be due and payable. We will describe the provisions relating to acceleration of the maturity of Original Issue Discount Securities in the applicable prospectus supplement. The holders of a majority in aggregate principal amount of the outstanding debt securities of a series may waive any past default with respect to the debt securities of that series, and any Event of Default arising from a past default, except in the case of: -- a default in the payment of the principal of, or any premium or interest on, any debt security of that series; or -- a default in respect of a covenant or provision that may not be amended or modified without the consent of the holder of each outstanding debt security of that series. Section 513 of the indenture. "Event of Default" means the occurrence and continuance of any of the following events with respect to a series of debt securities: -- failure to pay when due any interest on any debt security of that series, continued for 30 days; 9 -- failure to pay when due the principal of, and any premium on, any debt security of that series; -- failure to deposit when due any sinking fund payment on any debt security of that series; -- failure to perform when required any other covenant that applies to the debt securities of that series and continuance of that failure for 90 days after written notice as provided in the indenture; -- acceleration of any of our indebtedness in a principal amount in excess of $25,000,000 if the acceleration is not rescinded or annulled, or the indebtedness is not discharged, within 15 days after written notice as provided in the indenture; -- certain events in bankruptcy, insolvency or reorganization; and -- any other Event of Default that may be provided with respect to the debt securities of that series. Section 501 of the indenture. The Trustee is required, within 90 days after the occurrence of any continuing default that it knows of, to notify the holders of the applicable series of debt securities of the default. However, unless the default is a payment default, the Trustee may withhold the default notice if it in good faith decides that withholding the notice is in the holders' interests. In addition, in the case of any default referred to in the fourth event listed in the previous paragraph, the Trustee will not give notice to holders until at least 30 days after the default occurs. Section 602 of the indenture. Subject to its duty to act with the required standard of care in the case of a default, the Trustee is not obligated to exercise any of its rights or powers under the indenture at the request, order or direction of any holders of debt securities unless the holders offer the Trustee reasonable indemnification. Sections 601 and 603 of the indenture. If reasonable indemnification is provided, then, subject to other limitations, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power of the Trustee, with respect to the debt securities of that series. Section 512 of the indenture. No holder of a debt security of any series may institute any action against us under the indenture, except actions for payment of overdue principal of, or any premium or interest on, that debt security, unless: -- the holder has previously given written notice to the Trustee of a continuing Event of Default with respect to that series of debt securities; -- the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have previously made a written request of the Trustee to institute that action and offered the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with the request; -- the Trustee has not instituted the action within 60 days of the notice, request and offer of indemnity; and -- the Trustee has not received any inconsistent written request within that 60 day period from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series. Sections 507 and 508 of the indenture. The indenture requires us to deliver to the Trustee annual statements as to our compliance with all conditions and covenants under the indenture. Section 1005 of the indenture. MERGER AND CONSOLIDATION The indenture generally permits us to consolidate with, merge with or into, or sell or convey all or substantially all of our assets to, any other corporation or entity if: -- either (1) we are the survivor of the merger or (2) the entity that survives the merger or is formed by the consolidation or acquires our assets is organized and existing under the laws of the United States or any State and assumes all of our obligations and covenants under the indenture, including payment obligations; and 10 -- immediately after the transaction, no Event of Default exists and no event exists which, with the giving of notice or passage of time or both, would be an Event of Default. Section 801 of the indenture. MODIFICATION AND WAIVER The indenture may be modified or amended with the consent of the holders of a majority in aggregate principal amount of the outstanding debt securities of each series affected by the modification or amendment. However, unless each holder to be affected by the proposed change consents, no modification or amendment may: -- change the Stated Maturity of the principal of, or any installment of principal of, or interest on, any outstanding debt security; -- reduce the principal amount of, or the rate or amount of interest on, or any premium payable with respect to, any debt security; -- reduce the amount of principal of an Original Issue Discount Security that would be due and payable upon acceleration of the Original Issue Discount Security or that would be provable in bankruptcy; -- adversely affect any right of repayment at the option of the holder of any debt security; -- change the places or currency of payment of the principal of, or any premium or interest on, any debt security; -- impair the right to sue for the enforcement of any payment of principal of, or any premium or interest on, any debt security on or after the date the payment is due; -- reduce the percentage in aggregate principal amount of outstanding debt securities of any series necessary to: -- modify or amend the indenture with respect to that series, -- waive any past default or compliance with certain restrictive provisions, or -- constitute a quorum or take action at a meeting; or -- otherwise modify the provisions of the indenture concerning modification or amendment or concerning waiver of compliance with certain provisions of, or certain defaults and their consequences under, the indenture, except to: -- increase the percentage of outstanding debt securities necessary to modify or amend the indenture or to give the waiver, or -- provide that certain other provisions of the indenture cannot be modified or waived without the consent of the holder of each outstanding debt security affected by the modification or waiver. Section 902 of the indenture. The holders of a majority in aggregate principal amount of the outstanding debt securities of any series may waive our obligation to comply with certain restrictive provisions applicable to the series. Section 1008 of the indenture. The indenture may be modified or amended without the consent of any holder of outstanding debt securities for any of the following purposes: -- to evidence that another entity is our successor and has assumed our obligations with respect to the debt securities; -- to add to our covenants for the benefit of the holders of all or any series of debt securities or to surrender any of our rights or powers under the indenture; -- to add any Events of Default to all or any series of debt securities; -- to change or eliminate any restrictions on the payment of the principal of, or any premium or interest on, any debt securities, to modify the provisions relating to global debt securities, or to permit the issuance of debt securities in uncertificated form, so long as in any such case the interests of the holders of debt securities are not adversely affected in any material respect; 11 -- to add to, change or eliminate any provision of the indenture in respect of one or more series of debt securities, so long as either (1) there is no outstanding debt security of any series entitled to the benefit of the provision or (2) the amendment does not apply to any then outstanding debt security; -- to secure the debt securities; -- to establish the form or terms of the debt securities of any series; -- to provide for the appointment of a successor Trustee with respect to the debt securities of one or more series and to add to or change any of the provisions to facilitate the administration of the trusts under the indenture by more than one Trustee; -- to provide for the discharge of the indenture with respect to the debt securities of any series by the deposit in trust of money and/or Government Obligations (see "-- Satisfaction and Discharge"); -- to change the conditions, limitations and restrictions on the authorized amount, terms or purposes of issuance of the debt securities; or -- to cure any ambiguity, defect or inconsistency in the indenture or to make any other provisions with respect to matters or questions arising under the indenture, so long as the action does not adversely affect the interests of the holders of the debt securities of any series in any material respect. Section 901 of the indenture. SATISFACTION AND DISCHARGE Unless the prospectus supplement relating to a particular series of debt securities states otherwise, we may enter into a supplemental indenture with the Trustee without the consent of any holder of outstanding debt securities to provide that we will be discharged from our obligations in respect of the debt securities of any series, except for obligations: -- to register the transfer or exchange of debt securities; -- to replace stolen, lost or mutilated debt securities; -- to maintain paying agencies; and -- to hold moneys for payment in trust. The discharge would be effective on the 91st day after we deposit in trust with the Trustee money and/or Government Obligations sufficient to pay the principal of, any premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities of the applicable series on the dates the payments are due. The supplemental indenture may only be executed if certain conditions have been satisfied, including that we have received from, or there has been published by, the United States Internal Revenue Service a ruling, or there has been a change in the applicable federal income tax law, in either case, to the effect that the discharge will not cause the holders of the debt securities of the series to recognize income, gain or loss for federal income tax purposes. In addition, the provisions of the supplemental indenture will not apply to any series of debt securities then listed on the New York Stock Exchange if the provisions would cause the outstanding debt securities of the series to be delisted. Section 901 of the indenture. In addition to the above provisions, we will be released from any further obligations under the indenture with respect to a series of debt securities, except for obligations to register the transfer or exchange of debt securities and certain obligations to the Trustee, when certain conditions are satisfied including that: -- all debt securities of the series either have been delivered to the Trustee for cancellation or are due, or are to be called for redemption, within one year; and -- with respect to all debt securities of the series not previously delivered to the Trustee for cancellation, we have deposited in trust with the Trustee money and/or Government Obligations sufficient to pay the principal of, and any premium and interest on, those debt securities on the dates the payments are due. 12 Section 401 of the indenture. DEFEASANCE OF CERTAIN COVENANTS Unless otherwise provided in the prospectus supplement relating to a series of debt securities, we will have the option to cease to comply with the covenants described under "-- Limitations on Liens" above and any additional covenants not included in the original indenture that may be applicable to the series. To exercise this option, we will be required to deposit in trust with the Trustee money and/or Government Obligations sufficient to pay the principal of, any premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities of the applicable series on the dates the payments are due. We will also be required to deliver to the Trustee an opinion of counsel that the deposit and related covenant defeasance will not cause the holders of the debt securities of the series to recognize income, gain or loss for federal income tax purposes. We will not be permitted to exercise this option with respect to any series of debt securities listed on the New York Stock Exchange if the defeasance would cause the outstanding debt securities of the series to be delisted. Section 1009 of the indenture. GLOBAL DEBT SECURITIES The debt securities of a series may be issued in whole or in part in the form of one or more global debt securities that will be deposited with, or on behalf of, a depositary. Unless otherwise provided in the prospectus supplement relating to a series of debt securities, the depositary for each series of debt securities represented by one or more global debt securities will be The Depository Trust Company, New York, New York ("DTC"). We have been informed by DTC that its nominee will be Cede & Co. or such other nominee as an authorized DTC representative may request. Accordingly, we expect Cede & Co. to be the initial registered holder of all debt securities that are represented by one or more global debt securities. So long as DTC or a nominee of DTC is the registered owner of a global debt security, DTC or the nominee, as the case may be, will be considered the sole owner and holder of the debt securities represented by the global debt security for all purposes under the indenture. Section 308 of the indenture. Except as set forth below in this prospectus or in a prospectus supplement relating to a specific series of debt securities, no person that acquires a beneficial interest in a global debt security will be entitled to receive physical delivery of a certificate representing those debt securities or will be considered the owner or holder of the debt securities under the indenture. DTC has informed us that it is: -- a limited purpose trust company organized under the New York Banking Law; -- a "banking organization" within the meaning of the New York Banking Law; -- a member of the Federal Reserve System; -- a "clearing corporation" within the meaning of the New York Uniform Commercial Code; and -- a "clearing agency" registered under the provisions of Section 17A of the Securities Exchange Act. DTC has also informed us that it: -- holds securities that its "participants" deposit with it; and -- facilitates the settlement among participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants' accounts, thereby eliminating the need for the physical movement of securities certificates. Firms that maintain accounts with DTC are referred to as "participants" of DTC. They include securities brokers and dealers, banks, trust companies, clearing corporations and other organizations. Firms that are not participants themselves but that clear transactions through, or maintain a custodial relationship with, a participant, either directly or indirectly, are referred to as "indirect participants" of DTC. The rules applicable to DTC and its participants are on file with the SEC. DTC is owned by a number of its participants and by the New York Stock Exchange, the American Stock Exchange and the National Association of Securities Dealers, Inc. We will pay principal of, and any premium and interest on, debt securities represented by a global debt security to DTC or its nominee as the registered owner of the global debt security. DTC has advised 13 us that its practice is to credit participants' accounts, upon DTC's receipt of funds and corresponding detail information, on the payable date in accordance with the participants' respective holdings shown on DTC's records. Payments by participants to beneficial owners of the debt securities will be governed by standing instructions and customary practices, as is the case with securities registered in "street name." We are responsible for payments to DTC or its nominee. DTC is responsible for disbursement of such payments to participants, and the participants and indirect participants are responsible for disbursement of payments to the beneficial owners. Neither we, the Trustee, any paying agent nor the security registrar for the debt securities will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in a global debt security or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests. Section 308 of the indenture. Persons that are not participants or indirect participants may buy, sell or otherwise transfer ownership of or interests in debt securities represented by a global debt security only through participants or indirect participants. Participants will receive credit for the debt securities on DTC's records and indirect participants will receive credit for the debt securities on participants' records. In turn, the ownership interest of each beneficial owner will be recorded on the records of the participant or indirect participant through which the beneficial owner purchased its interest. Beneficial owners will not receive written confirmations from DTC of their purchases, but should receive written confirmations from the participants or indirect participants through which they purchased their interests. Transfers of ownership interests in debt securities represented by a global debt security are accomplished by entries made on the books of the participants or indirect participants acting on behalf of the beneficial owners. The deposit of a global debt security with DTC and its registration in the name of Cede & Co., or such other nominee as an authorized DTC representative may request, do not change or affect beneficial ownership of the debt securities. DTC has no knowledge of the actual beneficial owners of the debt securities represented by a global debt security. DTC's records reflect only the identities of the participants to whose accounts such debt securities are credited, which may or may not be the beneficial owners. The participants and indirect participants are responsible for keeping records of their holdings on behalf of their customers. We, the security registrar, any paying agent, the Trustee and the depositary will not recognize the beneficial owners as registered holders of the debt securities represented by a global debt security. Beneficial owners that are not participants will be permitted to exercise their rights as an owner only indirectly through participants or indirect participants. Conveyance of notices and other communications by DTC to its participants, by participants to indirect participants, and by participants and indirect participants to beneficial owners, will be governed by arrangements among them, subject to applicable statutes and regulations in effect from time to time. Because DTC can act only on behalf of participants, the ability of a beneficial owner of debt securities represented by a global debt security to pledge its beneficial ownership interest to persons or entities that do not participate in the DTC system may be limited. The laws of some states may require that certain purchasers of securities take physical delivery of the certificates for the debt securities they purchase. These laws may reduce the liquidity of beneficial interests in a global debt security. We will issue individual certificated debt securities in exchange for the global debt security of a series only if: -- DTC is at any time unwilling, unable or ineligible to continue as depositary and we do not appoint a successor depositary within 90 days; -- subject to any limitations described in the applicable prospectus supplement, we decide that the debt securities no longer will be represented by a global debt security and we deliver to the Trustee an order declaring that the global debt security will be exchangeable for certificated debt securities; or -- an Event of Default occurs and continues with respect to that series of debt securities. Section 305 of the indenture. If any of these events occurs, we will issue the individual certificated debt securities to the participants specified by DTC or its nominee, or to the beneficial owners specified by those participants, 14 according to standing instructions and customary practices for securities registered in "street name." Except as described above, a global debt security may not be transferred except as a whole by or among DTC, a nominee of DTC and/or a successor depositary appointed by us. Although DTC has agreed to the foregoing procedures in order to facilitate transfers of beneficial interests in global debt securities among participants, it is under no obligation to perform or continue to perform these procedures, which may be discontinued at any time. Neither we, the Trustee, the security registrar nor any paying agent will have any responsibility or liability for the performance by DTC or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations. Section 308 of the indenture. We obtained the information in this section concerning DTC and DTC's book-entry system from sources we believe to be reliable, but we take no responsibility for the accuracy of this information. THE TRUSTEE UNDER THE INDENTURE We and certain of our affiliates maintain banking and borrowing relations with Wilmington Trust Company. The indenture provides that we may appoint an alternative Trustee with respect to any particular series of debt securities. Any such appointment will be described in the prospectus supplement relating to that series of debt securities. Unless we are in default, the Trustee is required to perform only those duties specifically set out in the indenture. After a default, the Trustee is required to exercise the same degree of care as a prudent individual would exercise in the conduct of his or her own affairs. Subject to these provisions, the Trustee is under no obligation to exercise any of its rights or powers under the indenture at the request of any holder of debt securities, unless the holder offers the Trustee reasonable indemnity against the costs, expenses and liabilities that might be incurred in connection with the Trustee's exercise of these rights or powers. The Trustee is not required to spend or risk its own funds or otherwise incur financial liability in performing its duties if the Trustee reasonably believes that repayment or adequate indemnity is not reasonably assured to it. The indenture contains other provisions limiting the responsibilities and liabilities of the Trustee. Sections 601 and 603 of the indenture. 15 PLAN OF DISTRIBUTION METHODS OF DISTRIBUTION We may sell the debt securities: -- to or through one or more underwriters or dealers; -- directly to other purchasers; and/or -- through one or more agents. The distribution of the debt securities may occur from time to time in one or more transactions at fixed prices, which may be changed, at market prices prevailing at the time of sale, at prices related to the prevailing market prices or at negotiated prices. The prospectus supplement relating to a series of debt securities will state: -- the name(s) of any underwriter(s) or agent(s) involved in the offer and sale (only the underwriter(s) or agent(s) named in the applicable prospectus supplement are underwriter(s) or agent(s) in connection with the debt securities being offered by that prospectus supplement); -- the terms and manner of sale of the debt securities, including the purchase price, the proceeds to us, any underwriting discounts and other items constituting underwriters' compensation, any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers; -- the place and time of delivery of the debt securities; and -- any securities exchange on which the debt securities may be listed. COMPENSATION AND INDEMNIFICATION OF UNDERWRITERS In connection with the sale of debt securities, underwriters may receive compensation from us or from purchasers of debt securities for whom they may act as agents, in the form of discounts, concessions or commissions. Underwriters may sell debt securities to or through dealers, and the dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent. Underwriters, dealers and agents that participate in the distribution of debt securities may be considered to be underwriters as defined in the Securities Act of 1933, and any discounts or commissions received by them from us and any profit on the resale of debt securities by them may be deemed to be underwriting discounts and commissions under the Securities Act. Any compensation that we pay to underwriters, dealers or agents in connection with an offering of debt securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be described in the prospectus supplement relating to the debt securities. We may agree to indemnify the underwriters and agents which participate in the distribution of the debt securities against certain liabilities, including liabilities under the Securities Act. We also may agree to contribute to the payment of those liabilities and to reimburse them for certain expenses. Underwriters, dealers or agents participating in the offer or sale of the debt securities, and their associates, may be customers of ours, or may engage in transactions with or perform services for us or one or more of our affiliates, in the ordinary course of business. DELAYED DELIVERY ARRANGEMENTS If stated in a prospectus supplement, we will authorize underwriters, dealers or other persons acting as our agents to solicit offers by certain institutions to purchase debt securities from us under contracts providing for payment and delivery on a future date. These contracts, which in all cases must be approved by us, may be made with: -- commercial and savings banks; -- insurance companies; -- pension funds; -- investment companies; -- educational and charitable institutions; and -- other institutions. 16 The institution's obligations under the contract will be subject to the condition that the purchase of the debt securities at the time of delivery is not prohibited under the laws of the jurisdiction to which the institution is subject. The underwriters and the other agents will not have any responsibility for the validity or performance of the contracts. LEGAL OPINIONS Unless otherwise stated in a prospectus supplement, Jack R. Erkilla, our Deputy General Counsel, will pass upon the legality of each issue of the debt securities for us and Sidley Austin LLP, New York, New York, will pass upon certain legal matters relating to the debt securities for any underwriters, dealers or agents of a particular issue of debt securities. Sidley Austin LLP may rely as to matters of Indiana law on the opinion of Mr. Erkilla. Mr. Erkilla owns shares of common stock of AIG and has options to purchase additional shares of such stock. EXPERTS Our consolidated financial statements and financial statement schedule incorporated in this prospectus by reference to our Annual Report on Form 10-K for the year ended December 31, 2005 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting. 17 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following are the estimated expenses to be incurred by the registrant in connection with the offering described in this registration statement (other than underwriting discounts and commissions). SEC registration fee........................................ $ 0* Printing.................................................... 100,000 Legal fees and expenses..................................... 600,000 Accounting fees and expenses................................ 500,000 Trustee's fees and expenses................................. 250,000 Rating agency fees.......................................... 3,000,000 Miscellaneous............................................... 50,000 ---------- Total.................................................. $4,500,000 ==========
- --------------- * Deferred in accordance with Rule 456(b) and Rule 457(r). ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Chapter 37 of the Indiana Business Corporation Law empowers a corporation to indemnify any individual who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal, by reason of the fact that he is or was a director, officer, employee or agent of the corporation or, while a director of a corporation, is or was serving at the request of the corporation as a director, officer, partner, member, manager, trustee, employee or agent of another foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise, whether for profit or not, against reasonable expenses (including counsel fees), judgments, fines (including any excise tax assessed with respect to an employee benefit plan), penalties and amounts paid in settlement incurred by him in connection with such action, suit or proceeding if (i) he acted in good faith, and (ii) in the case of conduct in his official capacity with the corporation, he reasonably believed his conduct was in the best interests of the corporation or, in all other cases, he reasonably believed his conduct was at least not opposed to the best interests of the corporation (or with respect to an employee benefit plan, he reasonably believed his conduct was in the interests of the participants in and beneficiaries of the plan), and (iii) with respect to any criminal action or proceeding, he had reasonable cause to believe his conduct was lawful or no reasonable cause to believe his conduct was unlawful. Chapter 37 further provides that a corporation shall, unless limited by its articles of incorporation, indemnify a director or officer who was wholly successful, on the merits or otherwise, in the defense of any action, suit or proceeding to which he was a party because he is or was a director or officer of the corporation against reasonable expenses incurred by him in connection therewith. Chapter 37 expressly states that the indemnification thereby provided does not exclude any other rights to indemnification to which a person may be entitled. Chapter 37 empowers a corporation to purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee or agent of the corporation, or who, while a director, officer, employee or agent of the corporation is or was serving at the request of the corporation as a director, officer, partner, member, manager, trustee, employee or agent of another foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise, against liability asserted against or incurred by the individual in that capacity or arising from the individual's status as a director, officer, member, manager, employee or agent, whether or not the corporation would have power to indemnify the individual against the same liability under Chapter 37. Finally, Chapter 37 empowers a corporation, under certain circumstances, to advance to an individual II-1 expenses incurred in connection with an action, suit or proceeding prior to the final disposition thereof, and empowers a court of competent jurisdiction, in certain cases, to order indemnification of a director or officer irrespective of whether the director or officer met the standards of conduct set forth above. Section 7.8 of the registrant's Restated Articles of Incorporation provides that, to the extent not inconsistent with applicable law, every person who is or was a director, officer, employee or agent of the registrant or is or was serving at the request of the registrant as a director, officer, employee, agent or fiduciary of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other organization or entity, whether for profit or not, shall be indemnified against all liability and reasonable expense that may be incurred by him in connection with or resulting from any claim by reason of (i) his being or having been such a person, or (ii) any action taken or not taken by him in any such capacity (a) if such person is Wholly Successful with respect to the claim or (b) if not Wholly Successful, then if such person is determined to have acted in good faith, in what he reasonably believed to be the best interests of the registrant or at least not opposed to its best interests and, in addition, with respect to a criminal claim, is determined to have had reasonable cause to believe that his conduct was lawful or had no reasonable cause to believe his conduct was unlawful. Section 7.8 defines "Wholly Successful" to mean (i) termination of any claim against the person in question without any finding of liability or guilt against him, (ii) approval by a court, with knowledge of the indemnity provided in Section 7.8, of a settlement of any claim, or (iii) the expiration of a reasonable period of time after the making or threatened making of any claim without the institution of the same, without any payment or promise made to induce a settlement. Section 7.8 provides that the rights of indemnification provided therein are in addition to any rights to which any such director, officer, employee or agent may otherwise be entitled. Additionally, Section 7.8 authorizes the Board of Directors of the registrant (i) to approve indemnification of any such person to the full extent permitted by the provisions of applicable law at the time in effect, and (ii) to authorize the registrant to purchase and maintain insurance on behalf of any such person against any liability asserted against him and incurred by him, whether or not the registrant would have the power to indemnify him against such liability. Section 7.8 permits the Board of Directors to authorize advancement of expenses incurred by such a person prior to the final disposition of a claim upon receipt of an undertaking by or on behalf of the person to repay such amount unless he is determined to be entitled to indemnification. The provisions of Section 7.8 are applicable to all claims made or commenced after the adoption of that section, whether arising from acts or omissions to act occurring before or after the adoption thereof. Article X of the registrant's Amended and Restated By-Laws provides that the registrant shall indemnify any person who was or is a named defendant or respondent or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, and any inquiry or investigation that could lead to such an action, suit or proceeding, by reason of the fact that he is or was a director, officer or employee of the registrant or is or was serving at the request of the registrant as a director, officer, partner, venturer, proprietor, trustee, employee or similar functionary of another foreign or domestic corporation or non-profit corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against judgments, penalties (including excise and similar taxes), fines, amounts paid in settlement and reasonable expenses (including court costs and attorneys' fees) actually incurred by him in connection with such action, suit or proceeding, if he acted in good faith and in a manner he reasonably believed (i) in the case of conduct in his official capacity as a director of the registrant, to be in the best interests of the registrant and (ii) in all other cases, to be not opposed to the best interests of the registrant; and with respect to any criminal action or proceeding, if he had no reasonable cause to believe his conduct was unlawful. In connection with any action, suit or proceeding in which the person shall have been adjudged to be liable to the registrant or liable on the basis that personal benefit was improperly received by him, whether or not the benefit resulted from an action taken in the person's official capacity as a director or officer, Article X (i) limits the indemnity to reasonable expenses (including court costs or attorneys' fees) actually incurred in connection with such proceeding, and (ii) prohibits the indemnity if the person is found liable for willful or intentional misconduct in the performance of his duty to the registrant. Article X further provides that the registrant shall indemnify any II-2 such person who has been wholly successful, on the merits or otherwise, in defense of any such action, suit or proceeding against reasonable expenses (including court costs and attorneys' fees) actually incurred by him. Article X also (1) requires the registrant to advance reasonable expenses prior to the final disposition of the action, suit or proceeding under certain circumstances, (2) states that the indemnification provided by Article X is (i) nonexclusive and (ii) does not limit the power of the registrant to indemnify and to advance expenses, and (3) empowers the registrant to purchase and maintain insurance on behalf of any such person against any liability asserted against him and incurred by him in such a capacity or arising out of his status as such a person, whether or not the registrant would have the power to indemnify him against that liability. Reference is made to the final undertaking set forth in Item 17. Reference is also made to Section 7 of the form of Underwriting Agreement, a copy of which is filed as Exhibit 1 hereto, for information concerning indemnification of the registrant and its directors, officers, and controlling persons by the underwriters. The registrant carries insurance covering directors and officers against certain liabilities. ITEM 16. EXHIBITS The following exhibits are filed as part of this registration statement: 1 Form of Underwriting Agreement (including form of Delayed Delivery Contract) relating to the debt securities. 4(a) Indenture dated as of May 1, 1999 between American General Finance Corporation and Wilmington Trust Company (successor trustee to Citibank, N.A.), Trustee (incorporated by reference to Exhibit 4(a) filed as a part of our Quarterly Report on Form 10-Q for the quarter ended September 30, 2000 (file No. 1-6155)). The form or forms of debt securities with respect to each particular offering will be filed as an exhibit to a Current Report on Form 8-K and incorporated herein by reference. 4(b) Agreement of Resignation, Appointment and Acceptance dated as of July 25, 2006 by and among American General Finance Corporation, Wilmington Trust Company (Successor Trustee), and Citibank, N.A. (Resigning Trustee). 5 Opinion and consent of Jack R. Erkilla, Deputy General Counsel of American General Finance Corporation, as to the legality of the debt securities. 12 Computation of Ratio of Earnings to Fixed Charges. 23(a) Consent of Jack R. Erkilla, Esq. (contained in his opinion in Exhibit 5). 23(b) Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm. 25 Form T-1 Statement of Eligibility of Wilmington Trust Company (successor trustee to Citibank, N.A.), Trustee under the indenture.
ITEM 17. UNDERTAKINGS The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was II-3 registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that the undertakings set forth in clauses (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those clauses is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: (i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and (ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. (5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any II-4 of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. (6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions set forth in Item 15, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement or Amendment to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Evansville, State of Indiana, on the 26th day of July, 2006. AMERICAN GENERAL FINANCE CORPORATION By: /s/ DONALD R. BREIVOGEL, JR. ------------------------------------ (Donald R. Breivogel, Jr., Senior Vice President and Chief Financial Officer) Pursuant to the requirements of the Securities Act of 1933, this Registration Statement or Amendment has been signed by the following persons in the capacities indicated on July 26, 2006.
SIGNATURE TITLE --------- ----- /s/ FREDERICK W. GEISSINGER Chief Executive Officer, President and Director ------------------------------------------------ (principal executive officer) (Frederick W. Geissinger) /s/ DONALD R. BREIVOGEL, JR. Senior Vice President, Chief Financial Officer and ------------------------------------------------ Director (principal financial officer) (Donald R. Breivogel, Jr.) /s/ GEORGE W. SCHMIDT Vice President, Controller and Assistant Secretary ------------------------------------------------ (principal accounting officer) (George W. Schmidt) /s/ STEPHEN L. BLAKE Director ------------------------------------------------ (Stephen L. Blake) /s/ ROBERT A. COLE Director ------------------------------------------------ (Robert A. Cole) /s/ WILLIAM N. DOOLEY Director ------------------------------------------------ (William N. Dooley) /s/ JERRY L. GILPIN Director ------------------------------------------------ (Jerry L. Gilpin) /s/ STEPHEN H. LOEWENKAMP Director ------------------------------------------------ (Stephen H. Loewenkamp) /s/ GEORGE D. ROACH Director ------------------------------------------------ (George D. Roach)
II-6 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 1 Form of Underwriting Agreement (including form of Delayed Delivery Contract) relating to the debt securities. 4(a) Indenture dated as of May 1, 1999 between American General Finance Corporation and Wilmington Trust Company (successor trustee to Citibank, N.A.), Trustee (incorporated by reference to Exhibit 4(a) filed as a part of our Quarterly Report on Form 10-Q for the quarter ended September 30, 2000 (file No. 1-6155)). The form or forms of debt securities with respect to each particular offering will be filed as an exhibit to a Current Report on Form 8-K and incorporated herein by reference. 4(b) Agreement of Resignation, Appointment and Acceptance dated as of July 25, 2006 by and among American General Finance Corporation, Wilmington Trust Company (Successor Trustee), and Citibank, N.A. (Resigning Trustee). 5 Opinion and consent of Jack R. Erkilla, Deputy General Counsel of American General Finance Corporation, as to the legality of the debt securities. 12 Computation of Ratio of Earnings to Fixed Charges. 23(a) Consent of Jack R. Erkilla, Esq. (contained in his opinion in Exhibit 5). 23(b) Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm. 25 Form T-1 Statement of Eligibility of Wilmington Trust Company (successor trustee to Citibank, N.A.), Trustee under the indenture.
EX-1 2 y23463exv1.txt FORM OF UNDERWRITING AGREEMENT EXHIBIT 1 AMERICAN GENERAL FINANCE CORPORATION DEBT SECURITIES UNDERWRITING AGREEMENT [ ], 20[ ] To the Representatives Named in Schedule I hereto of the Underwriters named in Schedule II hereto Ladies and Gentlemen: 1. INTRODUCTORY. American General Finance Corporation, an Indiana corporation (the "COMPANY"), proposes to issue and sell to the underwriters named in Schedule II hereto (the "UNDERWRITERS"), for whom you are acting as representatives (the "Representatives"), its debt securities (the "OFFERED DEBT SECURITIES") identified in Schedule I hereto, to be issued under the indenture specified in Schedule I hereto (the "INDENTURE") between the Company and the Trustee identified in such Schedule (the "Trustee"). In the absence of Representatives, any reference herein to the "Representatives" shall be deemed to be a reference to the "Underwriters". The Company has prepared and filed with the Securities and Exchange Commission (the "COMMISSION") in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the "SECURITIES ACT"), a registration statement (the file number of which is set forth in Schedule I hereto) on Form S-3 relating to certain of its debt securities (the "SHELF SECURITIES"), including the Offered Debt Securities (the "INITIAL REGISTRATION Statement"). The Company also has filed with, or proposes to file with, the Commission pursuant to Rule 424 under the Securities Act (and at such time as may be required by Rule 430A(a)(3) under the Securities Act) a prospectus supplement specifically relating to the Offered Debt Securities. The various parts of the Initial Registration Statement and any post-effective amendment thereto, including all exhibits thereto, the documents incorporated by reference in the prospectus contained therein and any information deemed by virtue of Rule 430A or Rule 430B under the Securities Act to be part of the registration statement at the applicable time of effectiveness or deemed effectiveness, but excluding the Form T-1 (as defined below), each as amended at the time such part of the Initial Registration Statement became or hereafter is deemed to become effective or such part of any post-effective amendment thereto became or hereafter becomes effective are hereinafter collectively referred to as the "REGISTRATION STATEMENT". The related prospectus covering the Shelf Securities, dated [ ], 20[ ], in the form included in the Registration Statement on the date hereof is hereinafter referred to as the "BASIC PROSPECTUS". The Basic Prospectus as supplemented by the prospectus supplement specifically relating to the Offered Debt Securities in the form first used to confirm sales of the Offered Debt Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the "PROSPECTUS", and the term "PRELIMINARY PROSPECTUS" means any preliminary form of the Prospectus. For purposes of this Agreement, "APPLICABLE TIME" shall mean [ ]:[ ] [a/p]m (Eastern Time) on [ ], 20[ ] or such other time as agreed by the Company and the Representatives, "FREE WRITING PROSPECTUS" has the meaning set forth in Rule 405 under the Securities Act and "TIME OF SALE PROSPECTUS" means the Basic Prospectus, as amended and supplemented as of the Applicable Time, [including, without limitation, by the preliminary prospectus,] together with the free writing prospectuses, if any, and other information, if any, identified in Schedule I hereto. Any reference in this Agreement to the Basic Prospectus, any preliminary prospectus, the Time of Sale Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to item 12 of Form S-3 under the Securities Act which were filed under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the "EXCHANGE ACT") on or before the date of the Basic Prospectus, such preliminary prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be; any reference to "amend", "amendment" or "supplement" with respect to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the initial effective date of the Initial Registration Statement that is incorporated by reference in the prospectus contained in the Registration Statement; and any reference to "amend", "amendment" or "supplement" with respect to the Basic Prospectus, any preliminary prospectus, the Time of Sale Prospectus or the Prospectus shall be deemed to refer to and include any documents filed under the Exchange Act after the date of the Basic Prospectus, such preliminary prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be, which are deemed to be incorporated by reference therein. 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants to, and agrees with, the several Underwriters that: (a) The Initial Registration Statement has become effective; no stop order suspending the effectiveness of the Initial Registration Statement or any post-effective amendment thereto is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. The Company is a "well-known seasoned issuer" as defined in Rule 405 under the Securities Act eligible to use the Registration Statement as an automatic shelf registration statement, and the Company has not received notice that the Commission objects to use of the Registration Statement as an automatic shelf registration statement. (b) (i) The Registration Statement (as amended) and the Prospectus (as amended or supplemented) conform in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the "TRUST INDENTURE ACT"), and did not and will not, as of the applicable effective date, the date any Annual Report on Form 10-K of the Company has been filed with the Commission after such effective date (and before the Closing Date referred to in Section 3), the date of this Agreement and the Closing Date as to the Registration Statement and any amendment thereto, and as of its date, the date of this Agreement and the Closing Date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or, in the case of the Registration Statement, omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or, in the case of the Prospectus, omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and (ii) the Time of Sale Prospectus does not, as of the Applicable Time, and at the Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the foregoing representations and warranties in this Section 2(b) shall not apply to (1) that part of the Registration Statement which constitutes the Statement of Eligibility ("FORM T-1") under the Trust Indenture Act of the Trustee, (2) statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information relating to any Underwriter provided in writing to the Company by or through the Representatives expressly for use therein, or (3) any statement which does not constitute part of the Registration Statement, the Time of Sale Prospectus or the Prospectus pursuant to Rule 412 under the Securities Act. (c) The documents incorporated by reference in the Time of Sale Prospectus or in the Prospectus when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference and constituting an amendment or supplement thereto, when they are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and will not 2 contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter provided in writing to the Company by or through the Representatives expressly for use therein or to any statement in any such document which does not constitute part of the Time of Sale Prospectus or Prospectus pursuant to Rule 412 under the Securities Act. (d) The Company was not, or will not be, as the case may be, an "ineligible issuer", as defined in Rule 405 under the Securities Act, on the eligibility determination date for the offering of the Offered Debt Securities, as determined pursuant to Rule 164 under the Securities Act. The Company has not prepared, used or referred to any free writing prospectus, except for the free writing prospectuses, if any, identified in Schedule I hereto and any additional free writing prospectuses (including electronic road shows) previously or hereafter furnished by the Company to the Representatives for approval prior to use (such approval not to be unreasonably withheld). Any free writing prospectus that the Company has or hereafter uses in connection with the offering of the Offered Debt Securities has complied and will comply with the filing and other requirements of Rules 164 and 433 applicable to any such free writing prospectus. (e) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Indiana, and has full corporate power and authority to own its properties and to conduct its business as described in the Time of Sale Prospectus. (f) The Offered Debt Securities have been duly authorized and when issued and delivered pursuant to this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and any Contract Offered Debt Securities (as defined in Section 3), when executed, authenticated, issued and delivered in the manner provided in the Indenture and sold pursuant to Delayed Delivery Contracts (as defined in Section 3), will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (g) The Indenture has been duly authorized, executed and delivered, and has been, or upon effectiveness of the Registration Statement will be, duly qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Offered Debt Securities and the Indenture will conform in all material respects to the descriptions thereof in the Time of Sale Prospectus and the Prospectus as amended or supplemented. (h) The issue and sale of the Offered Debt Securities and the compliance by the Company with all of the provisions of the Offered Debt Securities, the Indenture, this Agreement and any Delayed Delivery Contract, and the consummation of the transactions herein and therein contemplated, will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, or result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties, except, in each case, for such conflicts, breaches, defaults and violations that would not have a material adverse effect on the business, financial position, shareholders' equity or results of operations of the Company and its subsidiaries taken as a whole (a "MATERIAL ADVERSE EFFECT") or affect the validity of the Offered Debt Securities, nor will such action result in any violation of the provisions of the Restated Articles of Incorporation, as amended, or the Amended and Restated By-Laws of the Company; and no 3 consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required by the Company for the issue and sale of the Offered Debt Securities or the consummation by the Company of the other transactions contemplated by this Agreement, any Delayed Delivery Contract or the Indenture, except for such consents, approvals, authorizations, orders, registrations or qualifications which, if not obtained or made, would not have a Material Adverse Effect or affect the validity of the Offered Debt Securities, and such consents, approvals, authorizations, orders, registrations or qualifications as have been, prior to the date of this Agreement, obtained under the Securities Act or the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or "Blue Sky" or insurance laws in connection with the purchase and distribution of the Offered Debt Securities by the Underwriters. (i) There is no action, suit or proceeding pending or, to the knowledge of the executive officers of the Company, threatened against the Company or any of its subsidiaries, which has, or may reasonably be expected in the future to have, a Material Adverse Effect, except as set forth or contemplated in the Time of Sale Prospectus and the Prospectus. (j) Since the date of the latest audited financial statements included or incorporated by reference in the Time of Sale Prospectus, there has not been any material change in the capital stock or any material increase in the consolidated long-term debt of the Company or any material adverse change in or affecting the consolidated financial position, shareholders' equity or results of operations of the Company and its consolidated subsidiaries (a "MATERIAL ADVERSE CHANGE") otherwise than as set forth or contemplated in such Time of Sale Prospectus. 3. PURCHASE, OFFERING AND DELIVERY. The Company agrees to issue and sell the Offered Debt Securities to the several Underwriters as hereinafter provided, and each Underwriter, on the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees to purchase, severally and not jointly, from the Company the respective principal amount of Offered Debt Securities set forth opposite such Underwriter's name in Schedule II hereto at the purchase price set forth in Schedule I hereto. Payment for the Offered Debt Securities shall be made to the Company by wire transfer of immediately available funds on the date and at the time and place set forth in Schedule I hereto (or at such time and on the same or such other date, not later than the third Business Day thereafter, as the Representatives and the Company may agree in writing). Such payment will be made upon delivery to, or to the Representatives for the respective accounts of, such Underwriters of the Offered Debt Securities registered in such names and in such denominations as the Representatives shall request not less than two full Business Days prior to the date of delivery. As used herein, the term "BUSINESS DAY" means any day other than a day on which banks are permitted or required to be closed in New York City. The time and date of such payment and delivery with respect to the Offered Debt Securities are referred to herein as the Closing Date. The certificates, if any, for the Offered Debt Securities will be made available for inspection and packaging by the Representatives by 1:00 P.M. on the Business Day prior to the Closing Date at such place in New York City as the Representatives and the Company shall agree. If the Time of Sale Prospectus provides for sales of Offered Debt Securities pursuant to delayed delivery contracts, the Company authorizes the Underwriters to solicit offers to purchase Offered Debt Securities pursuant to delayed delivery contracts substantially in the form of Schedule III attached hereto ("DELAYED DELIVERY CONTRACTS") with such changes therein as the Company may authorize or approve. Delayed Delivery Contracts are to be with institutional investors of the types set forth in the Time of Sale Prospectus. On the Closing Date, the Company will pay the Representatives as compensation, for the accounts of the Underwriters, the fee set forth in Schedule I in respect of the principal amount of Offered Debt Securities covered by Delayed Delivery Contracts (the "CONTRACT OFFERED DEBT SECURITIES") by wire transfer of immediately available funds to a bank account specified by the Representatives. The Underwriters will not have any responsibility in respect of the validity or the performance of Delayed Delivery Contracts. If the Company executes and delivers Delayed Delivery Contracts, the Contract Offered Debt Securities shall be deducted from the total Offered Debt Securities to which Schedule II pertains and the balance shall be "Underwriters' Offered Debt Securities"; and the aggregate principal 4 amount of Offered Debt Securities to be purchased by each Underwriter shall be reduced commensurately so that the principal amount of Offered Debt Securities (rounded to the nearest $1,000 principal amount) set forth opposite each Underwriter's name in such Schedule II is in the same proportion to the total Underwriters' Offered Debt Securities as the unreduced amounts of each such Underwriter bear to the total Offered Debt Securities including Contract Offered Debt Securities. Such reductions shall be revised to the extent the Representatives determine such reductions should be otherwise and so advise the Company. 4. OFFERING BY UNDERWRITERS. (a) It is understood that the several Underwriters propose to offer the Offered Debt Securities for sale to the public as set forth in the Time of Sale Prospectus. (b) The Underwriters represent and covenant that any offer or sale of the Offered Debt Securities through an electronic medium has been and will be made in compliance with the Securities Act. (c) Without the prior written consent of the Company, each of the several Underwriters represents and agrees with the Company that it will not distribute to any person a free writing prospectus, whether or not required to be filed with the Commission, other than an "issuer free writing prospectus", as such term is defined in Rule 433(h) under the Securities Act. [(d) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a "RELEVANT MEMBER STATE"), each of the several Underwriters represents and agrees with the Company that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the "RELEVANT IMPLEMENTATION DATE") it has not made and will not make an offer of Offered Debt Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Offered Debt Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Offered Debt Securities to the public in that Relevant Member State at any time: (i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; (ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than E43,000,000 and (3) an annual net turnover of more than E50,000,000, as shown in its last annual or consolidated accounts; or (iii) in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. For purposes of this provision, the expression an "offer of Offered Debt Securities to the public" in relation to any Offered Debt Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Debt Securities so as to enable an investor to decide to purchase or subscribe the Offered Debt Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the term "Prospectus Directive" means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.](1) [(e)] Each of the several Underwriters represents and agrees with the Company that it will comply with or observe any [other] restrictions or limitations set forth in the Prospectus on persons to - ---------- (1) This subsection to be deleted if the minimum Authorized Denomination of the Offered Debt Securities is equal to or in excess of E50,000 (or equivalent). 5 whom, or the jurisdictions in which, or the manner in which, the Offered Debt Securities may be offered, sold, resold or delivered. 5. COVENANTS OF THE COMPANY. The Company covenants and agrees with the several Underwriters that: (a) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus and prior to the completion of the distribution of the Offered Debt Securities provide the Representatives with a reasonable opportunity to review such proposed amendment or supplement prior to any filing thereof (other than any filing required to be made pursuant to the Exchange Act) and will not make any such amendment or supplement between the date hereof and the Closing Date which shall be reasonably disapproved by the Representatives promptly after reasonable notice thereof; prior to the completion of the distribution of the Offered Debt Securities, the Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Time of Sale Prospectus, the Prospectus or any amended Time of Sale Prospectus or Prospectus has been filed with, or transmitted for filing to, the Commission (other than any filing required to be made pursuant to the Exchange Act ), of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Offered Debt Securities, of the suspension of the qualification of the Offered Debt Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amendment or supplement of the Registration Statement or Prospectus or for additional information; in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any such prospectus or suspending any such qualification, the Company will use promptly its best efforts to obtain its withdrawal; the Company will furnish to the Representatives, prior to any use thereof, a copy of each free writing prospectus prepared by or on behalf of the Company or proposed to be used or referred to by the Company, and the Company will not use or refer to any free writing prospectus which shall be reasonably disapproved by the Representatives promptly after reasonable notice thereof. (b) If at any time when a prospectus relating to any Offered Debt Securities (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act any event occurs as a result of which the Time of Sale Prospectus, as then amended or supplemented, or the Prospectus, as then amended or supplemented, as the case may be, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus to comply with the Securities Act or the Trust Indenture Act or to ensure that the information included in the Time of Sale Prospectus then being used to solicit offers to purchase Offered Debt Securities does not conflict with the information contained in the Registration Statement, the Company promptly will prepare and cause to be filed promptly with the Commission an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, that will correct such statement or omission or conflict or effect such compliance. The expense of complying with the requirements of this Section 5(b) shall be borne (i) during the period of six months after the first date of the public offering of the Offered Debt Securities, by the Company, and (ii) after the expiration of such six-month period, by those Underwriters on whose behalf the Representatives may request copies of the Prospectus or of an amendment or amendments of or a supplement or supplements to the Prospectus. (c) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings 6 statement or statements of the Company and its subsidiaries (which need not be audited) for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act. (d) The Company will furnish to the Representatives copies of the Registration Statement (one of which will include all exhibits), each related preliminary prospectus, the Time of Sale Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representatives reasonably request. (e) The Company will arrange for the qualification of the Offered Debt Securities for offering and sale and the determination of their eligibility for investment under the applicable securities and insurance laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction. (f) The Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Offered Debt Securities under the Securities Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus (including each component thereof) and the Prospectus and amendments and supplements to any of the foregoing and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing, word processing or reproducing this Agreement, the Indenture, any Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Offered Debt Securities; (iii) all expenses in connection with the qualification of the Offered Debt Securities for offering and sale under state securities or insurance laws as provided in Section 5(e) hereof, including fees and disbursements of the Representatives' counsel in connection with such qualification and in connection with any Blue Sky and Legal Investment Memoranda; (iv) any fees charged by securities rating services for rating the Offered Debt Securities; (v) any filing fees incident to any required review by the Corporate Financing Department of NASD Regulation, Inc. (NASDR) of the terms of the sale of the Offered Debt Securities; (vi) the cost of preparing the Offered Debt Securities, including any fees and expenses relating to the use of book-entry securities; (vii) the fees and expenses of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with the Indenture and the Offered Debt Securities; and (viii) all other costs and expenses incident to the performance of its obligations hereunder and under any Delayed Delivery Contracts which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, Section 7 and Section 13 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Offered Debt Securities by them, and any advertising expenses connected with any offers they may make. 7 (g) During the period beginning on the date hereof and continuing to and including the earlier of (i) the termination of the trading restrictions for the Offered Debt Securities, as notified to the Company by the Representatives, and (ii) the Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company that mature more than nine (9) months after the Closing Date and that are substantially similar to the Offered Debt Securities. The foregoing restriction shall not apply to an issue of debt securities denominated in a currency other than U.S. dollars or to an issue of debt securities at least 90% of which is offered and sold outside the United States. (h) The Company will advise the Representatives in writing not later than 3:30 p.m., New York City time, on the second Business Day prior to the Closing Date of the names of any investors with which the making of Delayed Delivery Contracts has been approved by the Company and the principal amount of any Contract Offered Debt Securities to be covered by each such Delayed Delivery Contract. (i) If it appears that all of the Offered Debt Securities will not have been sold by the Underwriters before July 26, 2009, prior to such date the Company will file a new shelf registration statement and take any other action necessary to permit the public offering of the Offered Debt Securities to continue without interruption; references in this Agreement to the Registration Statement shall include the new registration statement after it has become effective. (j) If the Representatives so request, the Company will prepare a final term sheet relating to the offering of the Offered Debt Securities containing information that describes the final terms of the Offered Debt Securities and the offering, in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established. 6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the several Underwriters to purchase and pay for the Offered Debt Securities will be subject to the accuracy, at and as of the Closing Date, in all material respects, of the representations and warranties on the part of the Company herein, to the accuracy, in all material respects, of the statements of Company officers made pursuant to the provisions hereof, to the performance, in all material respects, by the Company of its obligations hereunder and to the following additional conditions: (a) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission or, to the knowledge of the executive officers of the Company, shall be contemplated by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives. (b) Since the respective dates as of which information is given in the Time of Sale Prospectus, there shall not have occurred any material change in or affecting the business, properties or financial condition of the Company or its material subsidiaries which, in the judgment of the Representatives, materially impairs the investment quality of the Offered Debt Securities. (c) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, if the effect of any such event, in the reasonable judgment of the Representatives, is to make it impracticable or inadvisable to market the Offered Debt Securities on the terms and in the manner contemplated in the Time of Sale Prospectus as amended or supplemented or the Prospectus as amended or supplemented; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; 8 (iii) any downgrading in the rating accorded the Company's senior debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act; (iv) the suspension in trading in the securities of the Company on any national securities exchange or quotation system on which they are listed or quoted, if the effect of such event in the reasonable judgment of the Representatives is to make it impracticable or inadvisable to market the Offered Debt Securities on the terms and in the manner contemplated in the Time of Sale Prospectus as amended or supplemented or the Prospectus as amended or supplemented; or (v) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, other than any such outbreak, escalation or declaration that does not represent a significant departure from the conditions that exist on the date hereof, if the effect of any such event in the reasonable judgment of the Representatives is to make it impracticable or inadvisable to market the Offered Debt Securities on the terms and in the manner contemplated in the Time of Sale Prospectus as amended or supplemented or the Prospectus as amended or supplemented. (d) The Representatives shall have received an opinion or opinions of Jack R. Erkilla, Esq., Deputy General Counsel of the Company, or such other counsel as shall be acceptable to the Representatives, dated the Closing Date, to the effect that: (i) The Company is a corporation duly incorporated and validly existing under the laws of the State of Indiana, and has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Time of Sale Prospectus and the Prospectus as amended or supplemented and to enter into and perform its obligations under, or as contemplated under, this Agreement; (ii) Each of the subsidiaries of the Company has been duly incorporated and is validly existing as a business corporation or an insurer, as the case may be, and is in good standing under the laws of its jurisdiction of incorporation, with corporate power and authority to own, lease and operate its properties and conduct its business as described in the Time of Sale Prospectus and the Prospectus as amended or supplemented; provided, however, that "good standing" means with respect to any subsidiary incorporated under the laws of the State of Indiana, that such subsidiary has filed its most recent biennial report required by the laws of the State of Indiana and Articles of Dissolution have not been filed in the State of Indiana with respect to such subsidiary; to the knowledge of such counsel, the Company and each of its subsidiaries has been duly qualified as a foreign corporation for the transaction of business or licensed to transact business as an insurance company, as the case may be, and is in good standing under the laws of each other jurisdiction in which it owns or leases substantial properties, or conducts business, and where the failure so to qualify and be in good standing would have a material adverse effect on the business of the Company and its subsidiaries taken as a whole; all of the outstanding shares of capital stock of each such subsidiary have been duly authorized and validly issued, are fully paid and non-assessable, and (except for any directors' qualifying shares) are owned, directly or indirectly, by the Company, free and clear of all liens and encumbrances; and, to the knowledge of such counsel, the Company and each of its subsidiaries has all required authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies (including, without limitation, each insurance regulatory authority having jurisdiction over the Company or any insurance subsidiary of the Company) to own, lease and operate its properties and to conduct its business as described in the Time of Sale Prospectus and the Prospectus as amended or supplemented, except such authorizations, approvals, orders, licenses, certificates and permits which, if not obtained, would not have a material adverse effect on the business of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause (ii) upon opinions (in form and substance satisfactory to the Representatives) of local counsel and of counsel for the subsidiaries, such counsel being 9 acceptable to counsel for the Underwriters, copies of which shall be furnished to the Representatives; and in respect of matters of fact upon certificates of public officials or officers of the Company or its subsidiaries, provided that such counsel shall state that he or she believes that he or she is justified in relying upon such opinions); (iii) There are no legal or governmental proceedings pending or, to the knowledge of such counsel, threatened, of a character that are required to be disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus, each as amended or supplemented, other than as disclosed therein; to the knowledge of such counsel, there are no contracts, indentures, mortgages, deeds of trust, loan agreements or other documents of a character required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, each as amended or supplemented (or required to be filed under the Exchange Act if upon such filing they would be incorporated by reference therein), or to be filed as exhibits to the Registration Statement that are not described and filed as required and all descriptions in the Time of Sale Prospectus and the Prospectus, each as amended or supplemented, of such documents to which the Company or its subsidiaries are a party are accurate in all material respects; (iv) Neither the Company nor any of its subsidiaries is in violation of its articles of incorporation, charter or by-laws or in default in the performance or observance of any contractual obligation known to such counsel, the violation of or default under which has or will have a material adverse effect on the business of the Company and its subsidiaries taken as a whole. The issue and sale of the Offered Debt Securities, the compliance by the Company with all of the provisions of the Offered Debt Securities, the Indenture, each of the Delayed Delivery Contracts, if any, and this Agreement, and the consummation of the transactions herein and therein contemplated will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument for money borrowed to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, or (B) result in any violation of (x) the provisions of the Restated Articles of Incorporation, as amended, or the Amended and Restated By-Laws of the Company or (y) any statute, order, rule, regulation, judgement, writ or decree known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, in any manner which, in the case of clauses (A) and (B)(y), would have a material adverse effect on the business of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause (iv) with respect to subsidiaries upon opinions (in form and substance satisfactory to the Representatives) of counsel for the subsidiaries, such counsel being acceptable to counsel for the Underwriters, copies of which shall be furnished to the Representatives, provided that such counsel shall state that he or she believes that he or she is justified in relying upon such opinions); (v) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties is required for the issue and sale of the Offered Debt Securities or the consummation by the Company of the other transactions contemplated by this Agreement, the Indenture, or any Delayed Delivery Contract, except such as may be required under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or "Blue Sky" or insurance laws in connection with the public offering of the Offered Debt Securities by the Underwriters; (vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; (vii) The Indenture has been duly authorized, executed and delivered by the Company and (assuming the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and binding agreement of the Company, enforceable against the 10 Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (viii) The Offered Debt Securities have been duly authorized and, when executed and authenticated pursuant to the Indenture and issued and delivered against payment therefor pursuant to this Agreement (or, in the case of any Contract Offered Debt Securities, pursuant to the Delayed Delivery Contracts with respect thereto), (A) the Offered Debt Securities will be duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, are in the form authorized in or pursuant to the Indenture, and conform in all material respects to the description thereof in the Time of Sale Prospectus and the Prospectus as amended or supplemented and (B) each holder of Offered Debt Securities will be entitled to the benefits of the Indenture; (ix) The information in the Time of Sale Prospectus and the Prospectus as amended or supplemented under the captions "Description of Debt Securities", "Certain United States Federal Income Tax Considerations", and "Description of Offered Debt Securities", or any caption purporting to cover such matters, to the extent that such information constitutes matters of law, summaries of legal matters, or legal conclusions, has been reviewed by such counsel and is correct in all material respects; (x) The Indenture is qualified under the Trust Indenture Act; (xi) The Registration Statement is effective under the Securities Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceeding for that purpose has been initiated or threatened by the Commission; (xii) Each part of the Registration Statement (other than the financial statements and supporting schedules included therein and the Statement of Eligibility under the Trust Indenture Act filed as an exhibit thereto, as to which no opinion need be expressed), at the time it became effective, appeared on its face to be appropriately responsive in all material respects to the applicable requirements of the Securities Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder; (xiii) The Company is not, and after giving effect to the issue and sale of the Offered Debt Securities, will not be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended; (xiv) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and supporting schedules included therein, as to which no opinion need be expressed), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; and (xv) Nothing has come to such counsel's attention that would lead such counsel to believe that (A) any part of the Registration Statement (other than the financial statements and supporting schedules contained or incorporated by reference therein or omitted therefrom and the Statement of Eligibility under the Trust Indenture Act filed as an exhibit thereto, as to which such counsel need not comment), when such part became effective or is deemed to have become effective, and if an amendment to the Registration Statement under the Securities Act or an Annual Report on Form 10-K under the Exchange Act has been filed by the Company with the Commission subsequent to the effectiveness of the Initial Registration Statement, then at 11 the time each such amendment became effective and the most recent such Form 10-K was filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Time of Sale Prospectus as of the Applicable Time or the Prospectus as of its date (other than the financial statements and supporting schedules included or incorporated by reference therein or omitted therefrom, as to which such counsel need not comment) included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (C) the Time of Sale Prospectus or the Prospectus (other than the financial statements and supporting schedules included or incorporated by reference therein or omitted therefrom, as to which such counsel need not comment), each as amended or supplemented, if applicable, as of the Closing Date includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving such opinion, such counsel may rely as to matters of New York law upon the opinion of Sidley Austin LLP referred to in Section 6(e). (e) The Representatives shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Offered Debt Securities, the Registration Statement, the Time of Sale Prospectus, the Prospectus, and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In giving such opinion, Sidley Austin LLP may rely as to matters of Indiana law upon the opinion of Jack R. Erkilla, Esq., Deputy General Counsel of the Company (or other counsel licensed to practice in the State of Indiana) referred to in Section 6(d). (f) The Representatives shall have received a certificate of the Chairman, the President, or a Vice President and the Treasurer or Assistant Treasurer of the Company, dated the Closing Date, in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct, in all material respects, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied, in all material respects, at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened by the Commission, and that, since the respective dates as of which information is given in the Time of Sale Prospectus and the Prospectus as amended or supplemented there has not been any Material Adverse Change, otherwise than as set forth or contemplated in the Time of Sale Prospectus or the Prospectus as amended or supplemented. (g) The Representatives shall have received letters of the independent registered public accounting firm(s) which certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus or any amendment or supplement thereto and the Prospectus as amended or supplemented and/or of such other independent registered public accounting firm(s) as the Company shall have engaged for such purpose, dated the date hereof and the Closing Date, to the effect set forth in Schedule IV hereto. The Company will furnish the Representatives with such confirmed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. 7. INDEMNIFICATION. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of any material fact contained in any preliminary prospectus, the Time of Sale Prospectus (including each component thereof) or any amendment or supplement thereto, any "issuer free writing prospectus" as defined in Rule 433(h) under the Securities Act, the Registration Statement or any amendment thereto or the Prospectus or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the 12 statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such action or claim as incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any "issuer free writing prospectus" as defined in Rule 433(h) under the Securities Act, the Registration Statement or any amendment thereto, the Prospectus or any amendment or supplement thereto or any other prospectus relating to the Offered Debt Securities or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter expressly for use therein; and provided further, that the foregoing indemnity agreement with respect to any preliminary prospectus relating to the Offered Debt Securities shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Offered Debt Securities or any person controlling such Underwriter where (i) prior to the Applicable Time the Company shall have notified such Underwriter in writing that such preliminary prospectus contains an untrue statement of a material fact or omits to state therein a material fact necessary to make the statements therein not misleading, (ii) such untrue statement or omission of a material fact was corrected in an amended or supplemented preliminary prospectus relating to the Offered Debt Securities which is a component of the Time of Sale Prospectus and such amended or supplemented preliminary prospectus was provided to such Underwriter by the Company within a reasonable period of time in advance of the Applicable Time, (iii) the Underwriter did not convey such amended or supplemented preliminary prospectus to such person at or prior to the time of sale (including, without limitation, a contract of sale) of Offered Debt Securities to such person, and (iv) such losses, claims, damages or liabilities would not have occurred had the Underwriter conveyed such amended or supplemented preliminary prospectus to such person prior to such time of sale. (b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Time of Sale Prospectus (including each component thereof) or any amendment or supplement thereto, any "issuer free writing prospectus" as defined in Rule 433(h) under the Securities Act, the Registration Statement or any amendment thereto or the Prospectus or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Time of Sale Prospectus or any amendment or supplement thereto, any "issuer free writing prospectus" as defined in Rule 433(h) under the Securities Act, the Registration Statement or any amendment thereto, the Prospectus or any amendment or supplement thereto or any other prospectus relating to the Offered Debt Securities or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as incurred. (c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action is brought against any indemnified party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other 13 expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. (d) If the indemnification provided for in this Section 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Offered Debt Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the sale of Offered Debt Securities (before deducting expenses) received by the Company bear to the total commissions or discounts received by the Underwriters in respect thereof. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading relates to information supplied by the Company on the one hand or by the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Debt Securities purchased by or through such Underwriter were sold exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) The obligations of the Company under this Section 7 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Securities Act; and the obligations of each Underwriter under this Section 7 shall be in addition to any liability which such Underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act. 8. DEFAULTS OF UNDERWRITERS. (a) If any Underwriter shall default in its obligation to purchase Underwriters' Offered Debt Securities which it has agreed to purchase hereunder, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Underwriters' Offered Debt Securities on the terms contained herein. If within twenty-four hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Underwriters' Offered Debt Securities, then the Company shall be entitled to a further period of twenty-four hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Underwriters' Offered Debt Securities on such terms. In the event that, within the respective prescribed periods, the Representatives notify the Company that they have so arranged for the purchase of 14 such Underwriters' Offered Debt Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Underwriters' Offered Debt Securities, the Representatives or the Company shall have the right to postpone the Closing Date for the Underwriters' Offered Debt Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Time of Sale Prospectus or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement, the Time of Sale Prospectus or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section 8 with like effect as if such person had originally been a party to this Agreement. (b) If, after giving effect to any arrangements for the purchase of the Underwriters' Offered Debt Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of such Underwriters' Offered Debt Securities which remains unpurchased does not exceed ten percent of the aggregate principal amount of the Offered Debt Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Underwriters' Offered Debt Securities which such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of the Offered Debt Securities which such Underwriter agreed to purchase hereunder) of the Underwriters' Offered Debt Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. The respective commitments of the Underwriters for purposes of this Section 8 shall be determined without regard to reduction in the respective Underwriters' obligations to purchase the principal amounts of the Offered Debt Securities set forth opposite their names in Schedule II hereto as a result of Delayed Delivery Contracts, if any, entered into by the Company. (c) If, after giving effect to any arrangements for the purchase of the Underwriters' Offered Debt Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of Underwriters' Offered Debt Securities which remains unpurchased exceeds ten percent of the aggregate principal amount of the Offered Debt Securities as determined as set forth in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Underwriters' Offered Debt Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 5(f) hereof and the indemnity and contribution agreements in Section 7 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective indemnities, agreements, representations, warranties, and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter or any controlling person of any Underwriter or the Company or any of its officers or directors or any controlling person, and will survive delivery of and payment for the Offered Debt Securities. 10. NOTICES. All communications hereunder will be in writing, and, if sent to the Underwriters, will be mailed or delivered and confirmed to the Representatives at the address set forth in Schedule I or, if sent to the Company, will be mailed or delivered and confirmed to it at 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. 11. SUCCESSORS. This Underwriting Agreement will inure solely to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation 15 hereunder. No purchaser of the Offered Debt Securities from any Underwriter shall be deemed a successor or assign merely by reason of such purchase. 12. REPRESENTATION. In all dealings hereunder, the Representatives shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by the Representatives. 13. TERMINATION. If for any reason, other than the occurrence of an event described in Section 6(c), Underwriters' Offered Debt Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through the Representatives for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) approved in writing by the Representatives reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Offered Debt Securities, but the Company shall then be under no further liability to any Underwriter with respect to such Offered Debt Securities except as provided in Section 5(f) and Section 7 hereof. 14. ADDITIONAL ACKNOWLEDGEMENTS. The Company acknowledges that in connection with the offering and sale of the Offered Debt Securities: (a) the Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (b) the Underwriters owe the Company only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, and (c) the Underwriters may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Offered Debt Securities. 15. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. 16. COUNTERPARTS. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be an original, but all such respective counterparts shall together constitute one and the same instrument. 16 If the foregoing is in accordance with your understanding of our agreement, please sign and return to us four counterparts hereof, whereupon this letter will become a binding agreement between the Company and the several Underwriters in accordance with its terms. Very truly yours, AMERICAN GENERAL FINANCE CORPORATION By: -------------------------------------- Name: Title: The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. [NAME[S]] By: -------------------------------- Name: Title: 17 SCHEDULE I Title of Offered Debt [--%] [Floating Rate] [Zero Coupon] Senior Securities: [Notes] due Form: [Global Security-Book Entry][Certificated][Bearer] Aggregate Principal Amount: [$] -- Registration Statement No.: -- Price to Public: --% of the principal amount of the Offered Debt Securities, plus accrued interest [, if any,] from -- to the date of payment and delivery [and accrued amortization, if any, from -- to the date of payment and delivery] Purchase Price by --% of the principal amount of the Offered Underwriters: Debt Securities, plus accrued interest [, if any,] from -- to the date of payment and delivery [and accrued amortization, if any, from -- to the date of payment and delivery] Specified Funds for Payment of Purchase Price: [New York] Clearing House funds Indenture: Indenture dated as of May 1, 1999 between the Company and Wilmington Trust Company (successor trustee to Citibank, N.A.), as Trustee Maturity: -- Interest Rate: [--%] [Zero Coupon] [See Floating Rate Provisions] Interest Payment Dates: [months and dates] Interest Record Dates: -- Redemption Provisions: [No provisions for redemption] [The Offered Debt Securities may be redeemed, [otherwise than through the sinking fund,] in whole or in part, at the option of the Company, in the amount of -- or an integral multiple thereof, [on or after --, at the following redemption prices (expressed in percentages of principal amount). If [redeemed on or before --, --%, and if] redeemed during the 12-month period beginning Year Redemption Price -- -- and thereafter at 100% of their principal amount, together in each case with accrued interest to the redemption date.] [on any interest payment date falling on or after --, at the election of the Company, at a redemption price equal to the principal amount thereof, plus accrued interest to the date of redemption.] [Other possible redemption provisions, such as mandatory redemption upon occurrence of certain events or redemption for changes in tax law] [Restriction on refunding] Repayment Provisions: [None][Offered Debt Securities are repayable on --, at the option of the holder, at their principal amount with accrued interest.] Schedule I-1 Sinking Fund Provisions: [No sinking fund provisions] [The Offered Debt Securities are entitled to the benefit of a sinking fund to retire $-- principal amount of Offered Debt Securities on -- in each of the years -- through -- at 100% of their principal amount plus accrued interest] [, together with [cumulative] [non-cumulative] redemptions at the option of the Company to retire an additional $-- principal amount of Offered Debt Securities in the years -- through -- at 100% of their principal amount plus accrued interest]. [If Securities are Extendable The Offered Debt Securities are repayable Debt Securities, insert on --, [insert date and years], at the Extendable Provisions: option of the holder, at their principal amount with accrued interest. Initial annual interest rate will be --%, and thereafter annual interest rate will be adjusted on --, and -- to a rate not less than --% of the effective annual interest rate on U.S. Treasury obligations with ---year maturities as of the [insert date 15 days prior to maturity date] prior to such [insert maturity date]]. [If Securities are Floating Initial annual interest rate will be --% Rate Debt Securities, insert through -- [and thereafter will be Floating Rate Provisions: adjusted [MONTHLY][QUARTERLY][SEMI-ANNUALLY] [on each --, -- and --] [to an annual rate of --% above the average rate for ---year [month] [securities] [certificates of deposit] issued by -- and -- [insert names of banks].] [and the annual interest rate [thereafter] [from -- through --] will be the interest yield equivalent of the weekly average per annum market discount rate for ---month Treasury bills plus --% of Interest Differential (the excess, if any, of (i) then current weekly average per annum secondary market yield for ---month certificates of deposit over (ii) then current interest yield equivalent of the weekly average per annum market discount rate for ---month Treasury bills); [from -- and thereafter the rate will be the then current interest yield equivalent plus --% of Interest Differential].] Authorized Denominations: -- Time of Sale Prospectus: Prospectus, dated --, 20-- [Preliminary Prospectus Supplement, dated --, 20--, relating to the Offered Debt Securities] [Final Term Sheet, dated --, 20--, containing a description of the final terms of the Offered Debt Securities] [Any free writing prospectuses containing a description of terms that does not reflect final terms, if the Time of Sale Prospectus does not include a Final Term Sheet] [Any other free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act] [Any orally communicated pricing information, if a Final Term Sheet is not used] Original Issue Date: -- Time of Delivery: -- Closing Location: -- Schedule I-2 Names and Addresses of Designated Representatives: Representatives: Address for Notices, etc.: Delayed Delivery: [None][Underwriters' commissions shall be --% of the principal amount of Debt Securities for which Delayed Delivery Contracts have been entered into. Such commission shall be payable to the order of --.] [Other Terms] -- Schedule I-3 SCHEDULE II
PRINCIPAL AMOUNT OF OFFERED DEBT SECURITIES TO BE UNDERWRITERS PURCHASED ------------ --------- [Name(s) of Representative(s)].................................................. [Name(s) of Underwriter(s)]..................................................... --------------------- Total........................................................................... $ =====================
Schedule II-1 SCHEDULE III DELAYED DELIVERY CONTRACT (Three copies of this Delayed Delivery Contract should be signed and returned to the address shown below so as to arrive not later than 9:00 A.M., New York Time, on , 20--.) --, 20-- AMERICAN GENERAL FINANCE CORPORATION c/o [Name and Address of Representatives] Attention: Ladies and Gentlemen: The undersigned hereby agrees to purchase from American General Finance Corporation (hereinafter called the "COMPANY"), and the Company agrees to sell to the undersigned, [if one delayed closing, insert - as of the date hereof, for delivery on --, 20-- (the "DELIVERY DATE")] $-- principal amount of the Company's [state title of Offered Debt Securities] (hereinafter called "DEBT SECURITIES"), offered by the Company's Time of Sale Prospectus relating thereto, receipt of a copy of which is hereby acknowledged, at --% of the principal amount of the Debt Securities so purchased plus accrued interest, if any, from - --, 20--, [and accrued amortization, if any, from ?, 20?] to the Delivery Date and on the further terms and conditions set forth in this Delayed Delivery Contract ("CONTRACT"). [If two or more delayed Closings, insert the following: The undersigned will purchase from the Company as of the date hereof, for delivery on the dates set forth below, Debt Securities in the principal amounts set forth below DELIVERY DATE PRINCIPAL AMOUNT ------------- ---------------- Each of such delivery dates is hereinafter referred to as a "DELIVERY DATE".] Payment for Debt Securities which the undersigned has agreed to purchase for delivery on [the] [each] Delivery Date shall be made to the Company by wire transfer of immediately available funds to a bank account specified by the Company, on [the] [such] Delivery Date upon delivery to the undersigned of the Debt Securities to be purchased by the undersigned - for delivery on such Delivery Date - in definitive form and in such denominations and registered in such names as the undersigned may designate by written communication addressed to the Company not less than three full business days prior to [the] [such] Delivery Date. It is expressly agreed that the provisions for delayed delivery and payment are for the sole convenience of the undersigned; that the purchase hereunder of Debt Securities is to be regarded in all respects as a purchase as of the date of this Contract; that the obligation of the Company to make delivery of and accept payment for, and the obligation of the undersigned to take delivery of and make payment for, Debt Securities on [the] [each] Delivery Date shall be subject only to the conditions that (A) investment in the Debt Securities shall not at [the] [such] Delivery Date be prohibited under the laws of any jurisdiction [in the United States] to which the undersigned is subject and which governs such investment and (B) the Schedule III-1 Company shall have sold to the Underwriters the total principal amount of the Debt Securities less the principal amount thereof covered by this and other similar Contracts. The undersigned represents that its investment in the Debt Securities is not, as of the date hereof, prohibited under the laws of any jurisdiction to which the undersigned is subject and which governs such investment. Promptly after completion of the sale to the Underwriters the Company will mail or deliver to the undersigned at its address set forth below notice to such effect. This Contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. This Contract shall be governed by and construed in accordance with the laws of the State of New York. The obligation of the undersigned to take delivery of and make payment for Debt Securities shall not be affected by the failure of any purchaser to take delivery of and make payment for Debt Securities pursuant to other contracts similar to this Contract. It is understood that the acceptance of any Delayed Delivery Contract (including this Contract) is in the Company's sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If this Contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned when such counterpart is so mailed or delivered. Very truly yours, [Name of Purchaser] By: ----------------------------------------- Title: Address: Telephone No.: Accepted, as of the above date. AMERICAN GENERAL FINANCE CORPORATION By: ------------------------------- Name: Title: Schedule III-2 SCHEDULE IV Pursuant to Section 6(g) of the Underwriting Agreement, the accountants shall provide comfort letters to the effect that: (i) They are an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission; (ii) In their opinion, the financial statements and any supplementary financial information and schedules (and, if applicable, financial forecasts and/or pro forma financial information) audited by them and included or incorporated by reference in the Registration Statement as amended, the Time of Sale Prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act or the Exchange Act, as applicable, and the related rules and regulations thereunder; and, if applicable, they have made a review in accordance with standards established by the Public Company Accounting Oversight Board ("PCAOB") of the consolidated interim financial statements, selected financial data, pro forma financial information, financial forecasts and/or condensed financial statements derived from audited financial statements of the Company for the periods specified in such letters, as indicated in their reports thereon, copies of which have been separately furnished to the representative or representatives of the Underwriters (the "REPRESENTATIVES"), such term to include an Underwriter or Underwriters who act without any firm being designated as its or their representatives; (iii) They have made a review in accordance with standards established by the PCAOB of the unaudited condensed consolidated statements of income, consolidated balance sheets, consolidated statements of cash flows and consolidated statements of comprehensive income included in the Time of Sale Prospectus and the Prospectus and/or included in the Company's Quarterly Reports on Form 10-Q incorporated by reference into the Time of Sale Prospectus and the Prospectus; and on the basis of specified procedures including inquiries of officials of the Company who have responsibility for financial and accounting matters regarding whether the unaudited condensed consolidated financial statements referred to in paragraph (v)(A)(i) below comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations, nothing came to their attention that caused them to believe that the unaudited condensed consolidated financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission; (iv) The unaudited selected financial information with respect to the consolidated results of operations and financial position of the Company for the five most recent fiscal years included in the Time of Sale Prospectus and the Prospectus and included or incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K for the most recent fiscal year agrees with the corresponding amounts (after restatement where applicable) in the audited consolidated financial statements for such five fiscal years included or incorporated by reference in the Company's Annual Reports on Form 10-K for such fiscal years; (v) On the basis of limited procedures, not constituting an examination in accordance with generally accepted auditing standards, consisting of a reading of the unaudited financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Time of Sale Prospectus and the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letters, nothing came to their attention that caused them to believe that: A. (i) the unaudited condensed consolidated statements of income, consolidated balance sheets, consolidated statements of cash flows and consolidated statements of comprehensive income included and/or incorporated by reference in the Time of Sale Prospectus and the Prospectus and included in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Time of Sale Schedule IV-1 Prospectus and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission, or (ii) any material modifications should be made to the unaudited condensed consolidated statements of income, consolidated balance sheets, consolidated statements of cash flows and consolidated statements of comprehensive income included in the Time of Sale Prospectus and the Prospectus or included in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Time of Sale Prospectus and the Prospectus for them to be in conformity with generally accepted accounting principles; B. any other unaudited income statement data and balance sheet items included in the Time of Sale Prospectus and the Prospectus do not agree with the corresponding items in the unaudited consolidated financial statements from which such data and items were derived, and any such unaudited data and items were not determined on a basis substantially consistent with the basis for the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; C. the unaudited financial statements which were not included in the Time of Sale Prospectus and the Prospectus but from which were derived the unaudited condensed financial statements referred to in clause (A) and any unaudited income statement data and balance sheet items included in the Time of Sale Prospectus and the Prospectus and referred to in clause (B) were not determined on a basis substantially consistent with the basis for the audited financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; D. any unaudited pro forma consolidated condensed financial statements included or incorporated by reference in the Time of Sale Prospectus and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the rules and regulations adopted by the Commission thereunder or the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements; E. as of a specified date not more than five days prior to the date of the letter, there have been any changes in the consolidated capital stock or any increase in the consolidated long-term debt of the Company and its subsidiaries, or as of the end of the latest period for which financial statements are available, any decreases in consolidated net assets, in each case as compared with amounts shown in the latest balance sheet included or incorporated by reference in the Time of Sale Prospectus and the Prospectus, except in each case for changes, increases or decreases which the Time of Sale Prospectus and the Prospectus discloses have occurred or may occur or which are described in such letter; and F. for the period from the date of the latest financial statements included or incorporated by reference in the Time of Sale Prospectus and the Prospectus to the end of the last period for which financial statements are available there were any decreases in consolidated total revenues or the total amount of consolidated income before extraordinary items or consolidated net income of the Company and its subsidiaries in each case as compared with the comparable period of the preceding year, except in each case for increases or decreases which the Time of Sale Prospectus and Prospectus discloses have occurred or may occur or which are described in such letters; and (vi) In addition to the audit referred to in their report(s) included or incorporated by reference in the Time of Sale Prospectus and the Prospectus and the limited procedures, inspection of minute books, inquiries and other procedures referred to in paragraphs (iii) and (v) above, they have carried out certain specified procedures, not constituting an audit in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Representatives which are derived from the general accounting records of the Company and its subsidiaries, which appear in the Time of Sale Prospectus and the Prospectus (excluding documents incorporated by reference), or in Part II of, or in exhibits and schedules to, the Registration Statement as amended specified by the Representatives or in documents incorporated by reference in the Time of Sale Prospectus and the Prospectus specified by the Representatives, and have compared certain of such amounts, percentages and Schedule IV-2 financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement. All references in this Schedule IV to the Prospectus shall be deemed to refer to the Prospectus as amended or supplemented (including the documents incorporated by reference therein) as defined in the Underwriting Agreement. All references in this Schedule IV to the Time of Sale Prospectus shall be deemed to refer to the Time of Sale Prospectus and any amendment or supplement thereto (including the documents incorporated by reference therein) as defined in the Underwriting Agreement. Schedule IV-3 EX-4.B 3 y23463exv4wb.txt AGREEMENT OF RESIGNATION EXHIBIT 4(b) AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of July 25, 2006 by and among AMERICAN GENERAL FINANCE CORPORATION, a corporation duly organized and existing under the laws of State of Indiana and having its principal office at 601 N.W. Second Street, Evansville, Indiana 47708 (the "Company"), WILMINGTON TRUST COMPANY a BANKING CORPORATION duly organized and existing under the laws of the STATE OF DELAWARE and having its principal corporate trust office at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890 ("Successor Trustee") and CITIBANK, N.A., a national banking association duly organized and existing under the laws of the United States of America having its principal corporate trust office at 388 Greenwich Street, 14th Floor, New York, New York 10013 ("Resigning Trustee"). Capitalized terms not otherwise defined herein shall have the meanings given to them in the Indenture (as defined below). RECITALS: WHEREAS, there are currently $14,007,980,000.00 aggregate principal amount of the Company's Senior Debt Securities (the "Securities") outstanding under the Indenture dated as of May 1, 1999, by and between the Company and the Resigning Trustee (the "Indenture"); WHEREAS, the Company appointed the Resigning Trustee as the Trustee, Security Registrar and Paying Agent under the Indenture. WHEREAS, Section 610 of the Indenture provides that the Trustee may at any time resign with respect to the Securities of one or more series by giving written notice of such resignation to the Company, effective upon the acceptance by a successor Trustee of its appointment as a successor Trustee; WHEREAS, Section 610(e) of the Indenture provides that, if the Trustee shall resign, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee; WHEREAS, Section 611(a) of the Indenture provides that any successor Trustee appointed in accordance with the Indenture shall execute, acknowledge and deliver to the Company and to the retiring trustee an instrument accepting such appointment under the Indenture, and thereupon the resignation of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, trusts and duties of the retiring trustee; WHEREAS, the Company desires to appoint Successor Trustee as Trustee to succeed Resigning Trustee in such capacity under the Indenture; and WHEREAS, Successor Trustee is willing to accept such appointment as successor Trustee, under the Indenture; NOW, THEREFORE, the Company, Resigning Trustee and Successor Trustee, for and in consideration of the premises and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby consent and agree as follows: 1 THE RESIGNING TRUSTEE 1.1 Pursuant to Section 610(b) of the Indenture, Resigning Trustee hereby notifies the Company that Resigning Trustee is hereby resigning as Trustee under the Indenture, but (a) will retain the roles of Security Registrar and Paying Agent under the Indenture and (b) accepts its appointment set forth in Article 3 hereof, as Authenticating Agent with respect to all Securities issued or to be issued under the Indenture. 1.2 Resigning Trustee hereby represents and warrants to Successor Trustee that: (a) No covenant or condition contained in the Indenture has been waived by Resigning Trustee or, to the best knowledge of responsible officers of Resigning Trustee's corporate trust department, by the Holders of the percentage in aggregate principal amount of the Securities required by the Indenture to effect any such waiver. (b) There is no action, suit or proceeding pending or, to the best knowledge of responsible officers of Resigning Trustee's corporate trust department, threatened against Resigning Trustee before any court or any governmental authority arising out of any act or omission of Resigning Trustee as Trustee under the Indenture. (c) As of the effective date of this Agreement, Resigning Trustee will hold no moneys or property under the Indenture. -2- (d) Pursuant to Section 303 of the Indenture, Resigning Trustee has duly authenticated and delivered, $14,007,980,000.00 aggregate principal amount of Securities which remain outstanding as of the effective date hereof. (e) The registers in which the Resigning Trustee has registered and transferred registered Securities accurately reflect the amount of Securities issued and outstanding and the amounts payable thereon. (f) Each person who so authenticated the Securities was duly elected, qualified and acting as an officer of Resigning Trustee and empowered to authenticate the Securities at the respective times of such authentication and the signature of such person or persons appearing on such Securities is each such person's genuine signature. (g) This Agreement has been duly authorized, executed and delivered on behalf of Resigning Trustee and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms. (h) To the best knowledge of responsible officers of the Resigning Trustee's corporate trust department, no event has occurred and is continuing which is, or after notice or lapse of time would become, an Event of Default under Section 501 of the Indenture. 1.3 Resigning Trustee hereby represents and warrants to Successor Trustee and the Company that its satisfies the Authenticating Agent eligibility requirements of Section 613 of the Indenture. 1.4 Resigning Trustee hereby assigns, transfers, delivers and confirms to Successor Trustee all right, title and interest of Resigning Trustee in and to the trust under the Indenture and all the rights, powers and trusts of the Resigning Trustee under the Indenture. Resigning Trustee shall execute and deliver such further instruments and shall do such other things as Successor Trustee may reasonably require so as to more fully and certainly vest and confirm in Successor Trustee all the rights, powers and trusts hereby assigned, transferred, delivered and confirmed to Successor Trustee as Trustee. 1.5 Resigning Trustee shall deliver to Successor Trustee, as of or immediately after the effective date hereof, all of the documents listed on Exhibit A hereto. -3- 2 THE COMPANY 2.1 The Company hereby (a) accepts the resignation of Resigning Trustee as Trustee under the Indenture (b) approves the appointment of the Resigning Trustee as Authenticating Agent with respect to all Securities issued under the Indenture and (c) acknowledges that the Resigning Trustee will retain the roles of Security Registrar and Paying Agent under the Indenture. 2.2 The Company hereby certifies that Exhibit B annexed hereto are true copies of resolutions duly adopted by the Terms and Pricing Committee of the Company's Board of Directors, which resolution remain in full force and effect on the date hereof, and which authorizes, among other things, certain officers of the Company to: (a) accept Resigning Trustee's resignation as Trustee under the Indenture; (b) appoint Successor Trustee as Trustee under the Indenture; and (c) execute and deliver such agreements and other instruments as may be necessary or desirable to effectuate the succession of Successor Trustee as Trustee under the Indenture. 2.3 The Company hereby appoints Successor Trustee as Trustee under the Indenture to succeed to, and hereby vests Successor Trustee with, all the rights, powers, duties and obligations of Resigning Trustee under the Indenture with like effect as if originally named as Trustee in the Indenture. 2.4 Promptly after the effective date of this Agreement, the Company shall cause a notice, substantially in the form of Exhibit C annexed hereto, to be sent to each Holder of the Securities in accordance with the provisions of Section 106 of the Indenture. 2.5 The Company hereby represents and warrants to Resigning Trustee and Successor Trustee that: (a) The Company is a corporation duly and validly organized and existing pursuant to the laws of the State of Indiana. (b) The Indenture was validly and lawfully executed and delivered by the Company and the Securities were validly issued by the Company. -4- (c) To the best of its knowledge, the Company has performed or fulfilled prior to the date hereof, and will continue to perform and fulfill after the date hereof, each covenant, agreement, condition, obligation and responsibility under the Indenture. (d) No event has occurred and is continuing which is, or after notice or lapse of time would become, an Event of Default under Section 501 of the Indenture. (e) To the best of its knowledge, no covenant or condition contained in the Indenture has been waived by the Company or, to the best of the Company's knowledge, by Holders of the percentage in aggregate principal amount of the Securities required to effect any such waiver. (f) To the best of its knowledge, there is no action, suit or proceeding pending or, to the best of the Company's knowledge, threatened against the Company before any court or any governmental authority arising out of any act or omission of the Company under the Indenture. (g) This Agreement has been duly authorized, executed and delivered on behalf of the Company and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms. (h) All conditions precedent relating to the appointment of Wilmington Trust Company as successor Trustee under the Indenture have been complied with by the Company. 3 THE SUCCESSOR TRUSTEE 3.1 Successor Trustee hereby represents and warrants to Resigning Trustee and to the Company that: (a) Successor Trustee is not disqualified under the provisions of Section 608 and is eligible under the provisions of Section 609 of the Indenture to act as Trustee under the Indenture. -5- (b) This Agreement has been duly authorized, executed and delivered on behalf of Successor Trustee and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms. 3.2 Successor Trustee hereby accepts its appointment as successor Trustee under the Indenture and accepts the rights, powers, duties and obligations of Resigning Trustee as Trustee under the Indenture, upon the terms and conditions set forth therein, with like effect as if originally named as Trustee under the Indenture. 3.3 References in the Indenture to "Corporate Trust Office" or other similar terms shall be deemed to refer to the principal corporate trust office of Successor Trustee, which is presently located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890. 3.4 Successor Trustee hereby appoints, pursuant to Section 613 of the Indenture, Resigning Trustee as Authenticating Agent with respect to all Securities issued or to be issued under the Indenture. 4 MISCELLANEOUS 4.1 Except as otherwise expressly provided herein or unless the context otherwise requires, all terms used herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture. 4.2 This Agreement and the resignation, appointments, approval and acceptance effected hereby shall be effective as of the opening of business on July 26, 2006. 4.3 Resigning Trustee hereby acknowledges payment or provision for payment in full by the Company of compensation for all services rendered by Resigning Trustee in its capacity as Trustee under Section 607 of the Indenture and reimbursement in full by the Company of the expenses, disbursements and advances incurred or made by Resigning Trustee in its capacity as Trustee in accordance with the provisions of the Indenture. Resigning Trustee acknowledges that it relinquishes any lien it may have upon all property or funds held or collected by it to secure any amounts due. The Company acknowledges that the provisions of Section 607 of the Indenture remain in effect. -6- 4.4 This Agreement shall be governed by and construed in accordance with the laws of the State of New York. 4.5 This Agreement may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. 4.6 The Company, Resigning Trustee and Successor Trustee hereby acknowledge receipt of an executed and acknowledged counterpart of this Agreement and the effectiveness thereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement of Resignation, Appointment and Acceptance to be duly executed and acknowledged and duly attested all as of the day and year first above written. [SEAL] AMERICAN GENERAL FINANCE CORPORATION Attest: By: /s/ Bryan A. Binyon ----------------------------------- Name: Bryan A. Binyon Title: Vice President and Treasurer /s/ Linda C. Meredith - ------------------------------ Name: Linda C. Meredith Title: Assistant Secretary [SEAL] Attest: CITIBANK, N.A. as Resigning Trustee By: /s/ Jennifer McCourt ----------------------------------- Name: Jennifer McCourt Title: /s/ Karen Schluter - ------------------------------ Name: Karen Schluter Title: -7- [SEAL] Attest: WILMINGTON TRUST COMPANY, as Successor Trustee By: /s/ Kristin L. Moore -------------------------------- Name: Kristin L. Moore Title: Senior Financial Services Officer /s/ Mary C. St. Amand - ------------------------------ Name: Mary C. St. Amand Title: Assistant Vice President -8- EXHIBIT A Documents to be delivered to Successor Trustee 1. Executed copy of the Indenture. 2. Conformed copy of Indenture. 3. File of closing documents from initial issuance. 4. Copies of the most recent of each of the SEC reports delivered by the Company pursuant to Section 704 of the Indenture. 5. A copy of the most recent compliance certificate delivered pursuant to Section 1005 of the Indenture. 6. Certified list of Holders, including certificate detail and all "stop transfers" and the reason for such "stop transfers" (or, alternatively, if there are a substantial number of registered Holders, the computer tape reflecting the identity of such Holders). 7. Copies of any official notices sent by the Trustee to all the Holders of the Securities pursuant to the terms of the Indenture during the past twelve months and a copy of the most recent Trustee's annual report to holders delivered pursuant to Section 703 of the Indenture. 8. List of any documents which, to the knowledge of Resigning Trustee, are required to be furnished but have not been furnished to Resigning Trustee, or if none, a statement from the Resigning Trustee to that effect. EXHIBIT B Trustee Resignation; Successor Trustee Appointment. FURTHER RESOLVED, that the resignation of Citibank, N.A. as Trustee under the Indenture dated as of May 1, 1999 between the Company and Citibank, N.A., as Trustee (the "Indenture" and Citibank, N.A., in its capacity as resigning Trustee, the "Resigning Trustee"), is hereby accepted, such resignation to be effective upon the execution, delivery and effectiveness of an instrument or instruments pursuant to which Wilmington Trust Company ("Successor Trustee") accepts appointment as successor Trustee under the Indenture (such instrument or instruments collectively being referred to herein as the "Agreement of Resignation, Appointment and Acceptance"); and be it FURTHER RESOLVED, that the Successor Trustee be, and it hereby is, designated and appointed as successor Trustee under the Indenture; and be it FURTHER RESOLVED, that the form of Agreement of Resignation, Appointment and Acceptance presented to this Committee and attached hereto, and the terms and conditions set forth therein, are hereby approved; and that the Chairman, the Chief Executive Officer, the President or the Treasurer be, and each of them hereby is, authorized and empowered to make or cause to be made such further changes in the form of Agreement of Resignation, Appointment and Acceptance as they may deem necessary or desirable; and be it FURTHER RESOLVED, that the Chairman, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company (the "Authorized Officers") be, and each of them hereby is, authorized and empowered in the name and on behalf of the Company to do or cause to be done all such acts or things, and to execute and deliver, or cause to be executed or delivered, any and all such other agreements, amendments, instruments, certificates, documents or papers (including, without limitation, any and all notices and certificates required or permitted to be given or made on behalf of the Company to the Successor Trustee or to the Resigning Trustee), under the terms of any of the executed instruments in connection with the resignation of Resigning Trustee and the appointment of Successor Trustee in the name and on behalf of the Company as any of such officers, in his or her discretion, may deem necessary or advisable to effectuate or carry out the purposes and intent of the foregoing resolutions; and to perform any of the Company's obligations under the instruments and agreements executed on behalf of the Company in connection with the resignation of the Resigning Trustee and the appointment of the Successor Trustee. c. Indenture Authorization. FURTHER RESOLVED, that the Debt Securities shall be issued under the Indenture; and that the Chairman, the Chief Executive Officer, the President or the Treasurer be, and each of them hereby is, authorized and empowered to take any such action as may be necessary or appropriate to qualify the Indenture under the Trust Indenture Act of 1939, as amended, for purposes of the Registration Statement; and be it Paying Agent and Security Registrar. FURTHER RESOLVED, that Citibank, N.A. be, and it hereby is, designated and appointed as the Paying Agent, Security Registrar and Authenticating Agent with respect to the Debt Securities; EXHIBIT C [COMPANY LETTERHEAD] NOTICE To the Holders of: [List Indentures and relevant Cusips] NOTICE IS HEREBY GIVEN, pursuant to Section 106 of the Indenture (the "Indenture") dated as of May 1, 1999 by and between American General Finance (the "Company") and Citibank, N.A., as Trustee, that Citibank, N.A. has resigned as Trustee under the Indenture, but will serve as Authenticating Agent, Security Registrar and Paying Agent under the Indenture. Pursuant to Sections 611 of the Indenture, Wilmington Trust Company, a banking corporation duly organized and existing under the laws of the State of Delaware, has accepted appointment as Trustee under the Indenture. The address of the corporate trust office of Wilmington Trust Company is Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890 Citibank's resignation as Trustee and Wilmington Trust Company's appointment as successor Trustee were effective as of the opening of business on July 26, 2006. AMERICAN GENERAL FINANCE CORPORATION By: ---------------------------- Name: Title: Dated: New York, New York July ___, 2006 EX-5 4 y23463exv5.txt OPINION AND CONSENT OF JACK R. ERKILLA EXHIBIT 5 AMERICAN GENERAL FINANCE, INC. 601 N.W. Second Street P.O. Box 59 Evansville, IN 47701-0059 812.424.8031 AMERICAN GENERAL FINANCIAL SERVICES [Logo omitted] July 26, 2006 American General Finance Corporation 601 N.W. Second Street Evansville, Indiana 47708 Ladies and Gentlemen: This opinion is furnished in connection with the proposed issuance and sale by American General Finance Corporation, an Indiana corporation (the "Company"), of its debt securities (the "Debt Securities") pursuant to: (a) The Company's Registration Statement on Form S-3 relating to the Debt Securities (the "Registration Statement"); and (b) The Indenture, dated as of May 1, 1999, between the Company and Wilmington Trust Company (successor trustee to Citibank, N.A.), as Trustee, pursuant to which the Debt Securities are to be issued (the "Indenture"). I am Deputy General Counsel of the Company, and am familiar with and have examined, either personally or through attorneys under my supervision, direction and control, originals or copies certified to my satisfaction, of the Registration Statement, the Indenture, the Restated Articles of Incorporation and bylaws of the Company and such other corporate records, certificates of corporate officials as to certain matters of fact, and instruments and documents as I have deemed necessary or advisable as a basis for the opinions set forth herein. In such examination, I have assumed the genuineness of all signatures (other than the signatures of persons signing on behalf of the Company), the authenticity and completeness of all documents, certificates, instruments and records submitted as originals and the conformity to the original instruments of all documents submitted as copies, and the authenticity and completeness of the originals of such copies. In addition, in rendering this opinion, as to certain matters of fact, I have relied solely upon certificates of officers of the Company and certificates or telegrams of public officials, without any independent investigation of such matters. Based upon the foregoing, I am of the opinion that: 1. The Company is existing as a corporation under the laws of the State of Indiana. 2. When the issuance of a Debt Security has been duly authorized by all necessary corporate action of the Company as contemplated by the Indenture, subject to the terms of such Debt Security being otherwise in compliance with then applicable law, and when such Debt Security has been duly executed, authenticated, sold and delivered in the form approved pursuant to and in accordance with the terms of the Indenture and as described in the Registration Statement, which Registration Statement shall have become effective, the supplement or supplements to the Prospectus constituting a part thereof and, if applicable, such agreement or agreements as may have been duly authorized and executed in connection with the sale of such Debt Security, such Debt Security will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (a) enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws of general applicability relating to or affecting enforcement of creditors' rights or by general equity principles and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. To the extent that the obligations of the Company under such Debt Security may be dependent upon such matters, I assume for purposes of this opinion that Wilmington Trust Company is a banking corporation at all times duly incorporated, validly existing and in good standing under the laws of the state of Delaware with full power and authority to enter into and perform its obligations under the Indenture, and the Indenture, at the time of the issuance and sale of such Debt Security, will constitute the valid and legally binding obligation of Wilmington Trust Company, enforceable against Wilmington Trust Company in accordance with its terms. The laws covered by the opinions expressed herein are limited to the laws of the State of Indiana and, with respect to the opinions expressed in paragraph 2 above, the laws of the State of New York. I consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me under the heading "Legal Opinions" in the prospectus included in the Registration Statement. In giving such consent, I do not admit that I come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission thereunder. This opinion is for the sole benefit of the addressee and, without my express prior written consent, may not be relied upon by any other person. Very truly yours, /s/ Jack R. Erkilla - --------------------------- Jack R. Erkilla Deputy General Counsel EX-12 5 y23463exv12.txt COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES . . . EXHIBIT 12 AMERICAN GENERAL FINANCE CORPORATION AND SUBSIDIARIES COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
YEARS ENDED DECEMBER 31, THREE -------------------------------------------------------------- THREE MONTHS MONTHS ENDED ENDED MARCH 31, MARCH 31, 2005 2006 (RESTATED) 2005 2004 2003 2002 2001 ---------- ---------- ---------- ---------- ---------- ---------- ---------- (DOLLARS IN THOUSANDS) EARNINGS: Income before provision for income taxes .................. $ 199,304 $ 225,876 $ 809,839 $ 680,951 $ 571,587 $ 496,270 $ 394,217 Interest expense .............. 254,086 190,509 866,203 626,401 538,858 553,877 620,487 Implicit interest in rents .... 4,983 4,588 18,834 18,306 18,382 17,690 16,863 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Total earnings ................... $ 458,373 $ 420,973 $1,694,876 $1,325,658 $1,128,827 $1,067,837 $1,031,567 ========== ========== ========== ========== ========== ========== ========== FIXED CHARGES: Interest expense .............. $ 254,086 $ 190,509 $ 866,203 $ 626,401 $ 538,858 $ 553,877 $ 620,487 Implicit interest in rents .... 4,983 4,588 18,834 18,306 18,382 17,690 16,863 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Total fixed charges .............. $ 259,069 $ 195,097 $ 885,037 $ 644,707 $ 557,240 $ 571,567 $ 637,350 ========== ========== ========== ========== ========== ========== ========== RATIO OF EARNINGS TO FIXED CHARGES 1.77 2.16 1.92 2.06 2.03 1.87 1.62
EX-23.B 6 y23463exv23wb.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP EXHIBIT 23(b) CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM -------------------------------------------------------- We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated March 30, 2006 relating to the financial statements and financial statement schedule, which appears in American General Finance Corporation's Annual Report on Form 10-K for the year ended December 31, 2005. We also consent to the references to us under the headings "Experts" and "Selected Financial Information" in such Registration Statement. /s/ PricewaterhouseCoopers LLP Chicago, Illinois July 26, 2006 EX-25 7 y23463exv25.txt FORM T-1 STATEMENT OF ELIGIBILITY ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) __ WILMINGTON TRUST COMPANY (Exact name of Trustee as specified in its charter) DELAWARE 51-0055023 (Jurisdiction of incorporation of organization (I.R.S. Employer if not a U.S. national bank) Identification No.)
1100 NORTH MARKET STREET WILMINGTON, DELAWARE 19890-0001 (302) 651-1000 (Address of principal executive offices, including zip code) CAROLYN MCKINNEY AFSHAR VICE PRESIDENT AND COUNSEL WILMINGTON TRUST COMPANY 1100 NORTH MARKET STREET WILMINGTON, DELAWARE 19890-0001 (302) 651-1360 (Name, address, including zip code, and telephone number, including area code, of agent of service) AMERICAN GENERAL FINANCE CORPORATION (Exact name of obligor as specified in its charter) INDIANA 35-0416090 (State or other jurisdiction or (I.R.S. Employer incorporation or organization) Identification No.)
601 N.W. SECOND STREET EVANSVILLE, INDIANA 47708 (Address of principal executive offices, including zip code) ---------- DEBT SECURITIES (Title of the indenture securities) ================================================================================ ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Federal Deposit Insurance Corp. State Bank Commissioner 20 Exchange Place, Room 6014 555 East Loockerman Street, Suite 210 New York, New York 10005 Dover, Delaware 19901 (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each affiliation: Based upon an examination of the books and records of the trustee and information available to the trustee, the obligor is not an affiliate of the trustee. ITEM 16. LIST OF EXHIBITS. List below all exhibits filed as part of this Statement of Eligibility and Qualification. - A copy of the Charter of Wilmington Trust Company (Exhibit 1), which includes the certificate of authority of Wilmington Trust Company to commence business (Exhibit 2) and the authorization of Wilmington Trust Company to exercise corporate trust powers (Exhibit 3). - A copy of the existing By-Laws of Wilmington Trust Company (Exhibit 4). - Consent of Wilmington Trust Company required by Section 321(b) of the Trust Indenture Act (Exhibit 6). - A copy of the latest Report of Condition of Wilmington Trust Company (Exhibit 7). Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 26 day of July, 2006. [SEAL] WILMINGTON TRUST COMPANY Attest: /s/ Kristin L. Moore By: /s/ Denise M. Geran ----------------------------- ------------------------------------ Assistant Secretary Name: Denise M. Geran Title: Vice President EXHIBIT 1* AMENDED CHARTER WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON MAY 9, 1987 * Exhibit 1 also constitutes Exhibits 2 and 3. AMENDED CHARTER OR ACT OF INCORPORATION OF WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows: FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY. SECOND: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority. THIRD: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.: (1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. (2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. (3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. (4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. (5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. (6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. (7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. (8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. (9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not 2 be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. (10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. (11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. (b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers: (1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. (2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. (3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. 3 (4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. (5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. (6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. FOURTH: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of: (1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and (2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock"). (b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following: (1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the 4 Board of Directors; (2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative; (3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; (4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. (5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. (6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and (7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. (c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article FOURTH), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article FOURTH), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article FOURTH, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. (2) After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article FOURTH), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to 5 stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. (3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article FOURTH, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. (d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. (e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article FOURTH and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article FOURTH that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock. (f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon. FIFTH: - (a) The business and affairs of the Corporation shall be conducted and managed by 6 a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board. (b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director. (c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose. (d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board. (e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee. (f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. 7 (g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. SIXTH: - The Directors shall choose such officers, agents and servants as may be provided in the By-Laws as they may from time to time find necessary or proper. SEVENTH: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended. EIGHTH: - This Act shall be deemed and taken to be a private Act. NINTH: - This Corporation is to have perpetual existence. TENTH: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. ELEVENTH: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever. TWELFTH: - The Corporation may transact business in any part of the world. THIRTEENTH: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class). FOURTEENTH: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them. FIFTEENTH: - (a) (1) In addition to any affirmative vote required by law, and except as otherwise expressly provided in sections (b) and (c) of this Article FIFTEENTH: (A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after 8 such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or (B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or (C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or (D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or (E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise. (2) The term "business combination" as used in this Article FIFTEENTH shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of paragraph 1 of the section (a). (b) The provisions of section (a) of this Article FIFTEENTH shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation or By-Laws if such business combination has been approved by a majority of the whole Board. (c) For the purposes of this Article FIFTEENTH: (1) A "person" shall mean any individual, firm, corporation or other entity. (2) "Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record 9 date for the determination of stockholders entitled to notice of and to vote on such business combination, or immediately prior to the consummation of any such transaction: (A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or (B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or (C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. (3) A person shall be the "beneficial owner" of any Voting Shares: (A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or (B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or (C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation. (4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. (5) "Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. (6) "Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, 10 directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. (d) majority of the directors shall have the power and duty to determine for the purposes of this Article FIFTEENTH on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,000,000 or more. (e) Nothing contained in this Article FIFTEENTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. SIXTEENTH: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation. SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended. (b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification." 11 EXHIBIT 4 BY-LAWS WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON DECEMBER 16, 2004 BY-LAWS OF WILMINGTON TRUST COMPANY ARTICLE 1 STOCKHOLDERS' MEETINGS Section 1. Annual Meeting. The annual meeting of stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time or place as may be designated by resolution by the Board of Directors. Section 2. Special Meetings. Special meetings of stockholders may be called at any time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President. Section 3. Notice. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting. Section 4. Quorum. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a smaller number of shares may adjourn from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each share of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein. ARTICLE 2 DIRECTORS Section 1. Management. The affairs and business of the Company shall be managed by or under the direction of the Board of Directors. Section 2. Number. The authorized number of directors that shall constitute the Board of Directors shall be fixed from time to time by or pursuant to a resolution passed by a majority of the Board of Directors within the parameters set by the Charter of the Company. No more than two directors may also be employees of the Company or any affiliate thereof. Section 3. Qualification. In addition to any other provisions of these Bylaws, to be qualified for nomination for election or appointment to the Board of Directors, a person must have not attained the age of sixty-nine years at the time of such election or appointment, provided however, the Nominating and Corporate Governance Committee may waive such qualification as to a particular candidate otherwise qualified to serve as a director upon a good faith determination by such committee that such a waiver is in the best interests of the Company and its stockholders. The Chairman of the Board and the Chief Executive Officer shall not be qualified to continue to serve as directors upon the termination of their service in those offices for any reason. Section 4. Meetings. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Board of Directors, the Chief Executive Officer or the President. Section 5. Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board, the Chief Executive Officer or the President, and shall be called upon the written request of a majority of the directors. Section 6. Quorum. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors. Section 7. Notice. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting. Section 8. Vacancies. In the event of the death, resignation, removal, inability to act or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified. Section 9. Organization Meeting. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Audit Committee, a Compensation Committee and a Nominating and Corporate Governance Committee, and shall elect from its own members a Chairman of the Board, a Chief Executive Officer and a President, who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Chief Financial Officer, who may be the same person, and may appoint at any time such committees as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. The Board of Directors, or a committee designated by the Board of Directors may elect or appoint such other officers as they may deem advisable. Section 10. Removal. The Board of Directors may at any time remove, with or without cause, any member of any committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor. Section 11. Responsibility of Officers. The Board of Directors may designate an officer to be in charge of such departments or divisions of the Company as it may deem advisable. Section 12. Participation in Meetings. The Board of Directors or any committee of the Board of Directors may participate in a meeting of the Board of Directors or such committee, as the case may be, by conference telephone, video facilities or other communications equipment. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all of the members of the Board of Directors or the committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the Board of Directors or such committee. ARTICLE 3 COMMITTEES OF THE BOARD OF DIRECTORS Section 1. Audit Committee. 2 (A) The Audit Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board. (B) The Audit Committee shall have general supervision over the Audit Services Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Services Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable. (C) The Audit Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee. Section 2. Compensation Committee. (A) The Compensation Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors. (B) The Compensation Committee shall in general advise upon all matters of policy concerning compensation, including salaries and employee benefits. (C) The Compensation Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee. Section 3. Nominating and Corporate Governance Committee. (A) The Nominating and Corporate Governance Committee shall be composed of not more than five members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors. (B) The Nominating and Corporate Governance Committee shall provide counsel and make recommendations to the Chairman of the Board and the full Board with respect to the performance of the Chairman of the Board and the Chief Executive Officer, candidates for membership on the Board of Directors and its committees, matters of corporate governance, succession planning for the Company's executive management and significant shareholder relations issues. (C) The Nominating and Corporate Governance Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President, or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the 3 Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee. Section 4. Other Committees. The Company may have such other committees with such powers as the Board may designate from time to time by resolution or by an amendment to these Bylaws. Section 5. Associate Directors. (A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve at the pleasure of the Board of Directors. (B) Associate directors shall be entitled to attend all meetings of directors and participate in the discussion of all matters brought to the Board of Directors, but will not have a right to vote. Section 6. Absence or Disqualification of Any Member of a Committee. In the absence or disqualification of any member of any committee created under Article III of these Bylaws, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. ARTICLE 4 OFFICERS Section 1. Chairman of the Board. The Chairman of the Board shall preside at all meetings of the Board of Directors and shall have such further authority and powers and shall perform such duties the Board of Directors may assign to him from time to time. Section 2. Chief Executive Officer. The Chief Executive Officer shall have the powers and duties pertaining to the office of Chief Executive Officer conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. Section 3. President. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board and the Chief Executive Officer, the President shall have the powers and duties of the Chairman of the Board. Section 4. Duties. The Chairman of the Board, the Chief Executive Officer or the President, as designated by the Board of Directors, shall carry into effect all legal directions of the Board of Directors and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office. Section 5. Vice Presidents. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all of the duties of the Chairman of the Board, the Chief Executive Officer and/or the President and such other powers and duties incident to their respective offices or as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President or the officer in charge of the department or division to which they are assigned may assign to them from time to time. 4 Section 6. Secretary. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the committees thereof, to the keeping of accurate minutes of all such meetings, recording the same in the minute books of the Company and in general notifying the Board of Directors of material matters affecting the Company on a timely basis. In addition to the other notice requirements of these Bylaws and as may be practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any such meeting. He shall have custody of the corporate seal, affix the same to any documents requiring such corporate seal, attest the same and perform other duties incident to his office. Section 7. Chief Financial Officer. The Chief Financial Officer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all transactions of the Company. He shall have general supervision of the expenditures of the Company and periodically shall report to the Board of Directors the condition of the Company, and perform such other duties incident to his office or as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President may assign to him from time to time. Section 8. Controller. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors or the Audit Committee at appropriate times a report relating to the general condition and internal operations of the Company and perform other duties incident to his office. There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller. Section 9. Audit Officers. The officer designated by the Board of Directors to be in charge of the Audit Services Division of the Company, with such title as the Board of Directors shall prescribe, shall report to and be directly responsible to the Audit Committee and the Board of Directors. There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Services Division. Section 10. Other Officers. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office of Assistant Secretary of the Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to which they are assigned. Section 11. Powers and Duties of Other Officers. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President and the officer in charge of the department or division to which they are assigned. Section 12. Number of Offices. Any one or more offices of the Company may be held by the same person, except that (A) no individual may hold more than one of the offices of Chief Financial Officer, Controller or Audit Officer and (B) none of the Chairman of the Board, the Chief Executive Officer or the President may hold any office mentioned in Section 12(A). 5 ARTICLE 5 STOCK AND STOCK CERTIFICATES Section 1. Transfer. Shares of stock shall be transferable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded. Section 2. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the Company by the Chairman of the Board, the Chief Executive Officer or the President or a Vice President, and by the Secretary or an Assistant Secretary, of the Company, certifying the number of shares owned by him in the Company. The corporate seal affixed thereto, and any of or all the signatures on the certificate, may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors. Section 3. Record Date. The Board of Directors is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of any dividend, or to any allotment of rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days preceding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent. ARTICLE 6 SEAL The corporate seal of the Company shall be in the following form: Between two concentric circles the words "Wilmington Trust Company" within the inner circle the words "Wilmington, Delaware." ARTICLE 7 FISCAL YEAR The fiscal year of the Company shall be the calendar year. ARTICLE 8 EXECUTION OF INSTRUMENTS OF THE COMPANY The Chairman of the Board, the Chief Executive Officer, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company 6 or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors, and any and all such instruments shall have the same force and validity as though expressly authorized by the Board of Directors. ARTICLE 9 COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be authorized by the Company to perform such special services as the Board of Directors may from time to time determine in accordance with any guidelines the Board of Directors may adopt for such services, and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors. ARTICLE 10 INDEMNIFICATION Section 1. Persons Covered. The Company shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director or associate director of the Company, a member of an advisory board the Board of Directors of the Company or any of its subsidiaries may appoint from time to time or is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or non-profit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Company shall be required to indemnify such a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors. The Company may indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or threatened to be made a party or is otherwise involved in any proceeding by reason of the fact that he, or a person for whom he is the legal representative, is or was an officer, employee or agent of the Company or a director, officer, employee or agent of a subsidiary or affiliate of the Company, against all liability and loss suffered and expenses reasonably incurred by such person. The Company may indemnify any such person in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors. Section 2. Advance of Expenses. The Company shall pay the expenses incurred in defending any proceeding involving a person who is or may be indemnified pursuant to Section 1 in advance of its final disposition, provided, however, that the payment of expenses incurred by such a person in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by that person to repay all 7 amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article 10 or otherwise. Section 3. Certain Rights. If a claim under this Article 10 for (A) payment of expenses or (B) indemnification by a director, associate director, member of an advisory board the Board of Directors of the Company or any of its subsidiaries may appoint from time to time or a person who is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, is not paid in full within sixty days after a written claim therefor has been received by the Company, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, the Company shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law. Section 4. Non-Exclusive. The rights conferred on any person by this Article 10 shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise. Section 5. Reduction of Amount. The Company's obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity. Section 6. Effect of Modification. Any amendment, repeal or modification of the foregoing provisions of this Article 10 shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such amendment, repeal or modification. ARTICLE 11 AMENDMENTS TO THE BYLAWS These Bylaws may be altered, amended or repealed, in whole or in part, and any new Bylaw or Bylaws adopted at any regular or special meeting of the Board of Directors by a vote of a majority of all the members of the Board of Directors then in office. ARTICLE 12 MISCELLANEOUS Whenever used in these Bylaws, the singular shall include the plural, the plural shall include the singular unless the context requires otherwise and the use of either gender shall include both genders. 8 EXHIBIT 6 SECTION 321(B) CONSENT Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. WILMINGTON TRUST COMPANY Dated: July 26, 2006 By: /s/ Denise M. Geran ------------------------------------ Name: Denise M. Geran Title: Vice President EXHIBIT 7 NOTICE This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements. REPORT OF CONDITION Consolidating domestic subsidiaries of the WILMINGTON TRUST COMPANY of WILMINGTON Name of Bank City in the State of DELAWARE, at the close of business on March 31, 2006. Thousands of dollars ASSETS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coins............... 217,381 Interest-bearing balances......................................... 0 Held-to-maturity securities.......................................... 2,196 Available-for-sale securities........................................ 1,484,798 Federal funds sold in domestic offices............................... 308,258 Securities purchased under agreements to resell...................... 18,106 Loans and lease financing receivables: Loans and leases held for sale................ 0 Loans and leases, net of unearned income...... 6,996,935 LESS: Allowance for loan and lease losses..... 84,213 Loans and leases, net of unearned income, allowance, and reserve.. 6,912,722 Assets held in trading accounts...................................... 0 Premises and fixed assets (including capitalized leases)............. 136,800 Other real estate owned.............................................. 199 Investments in unconsolidated subsidiaries and associated companies.. 2,398 Customers' liability to this bank on acceptances outstanding......... 0 Intangible assets: a. Goodwill....................................................... 1,946 b. Other intangible assets........................................ 6,419 Other assets......................................................... 255,830 Total assets......................................................... 9,347,053
CONTINUED ON NEXT PAGE 2 LIABILITIES Deposits: In domestic offices................................................. 7,543,642 Noninterest-bearing......................... 850,133 Interest-bearing............................ 6,693,509 Federal funds purchased in domestic offices......................... 125,340 Securities sold under agreements to repurchase...................... 342,226 Trading liabilities (from Schedule RC-D)............................ 0 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases:........................................ 353,398 Bank's liability on acceptances executed and outstanding............ 0 Subordinated notes and debentures................................... 0 Other liabilities (from Schedule RC-G).............................. 185,160 Total liabilities................................................... 8,549,766 EQUITY CAPITAL Perpetual preferred stock and related surplus....................... 0 Common Stock........................................................ 500 Surplus (exclude all surplus related to preferred stock)............ 113,816 a. Retained earnings................................................ 708,490 b. Accumulated other comprehensive income........................... (25,519) Total equity capital................................................ 797,287 Total liabilities, limited-life preferred stock, and equity capital. 9,347,053
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