EXHIBIT 1.3
Transamerica Finance Corporation
$4,000,000,000
Medium-Term Notes, Series __
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
December ___, 1998
Ladies and Gentlemen:
Transamerica Finance Corporation, a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the issue and sale
by the Company of up to $4,000,000,000 aggregate principal amount of its Medium-
Term Notes, Series __, consisting of Senior Medium-Term Notes ("Senior Notes")
and/or Subordinated Medium-Term Notes ("Subordinated Notes"; such Senior Notes
and Subordinated Notes being herein collectively referred to as the "Notes").
The Senior Notes are to be issued under an Indenture dated as of April 1, 1991
(the "Senior Indenture") between the Company and Xxxxxx Trust and Savings Bank,
as trustee (the "Senior Trustee"). The Subordinated Notes are to be issued
under an Indenture dated as of April 1, 1991 (the "Subordinated Indenture";
together with the Senior Indenture, the "Indentures") between the Company and
The Bank of New York as successor trustee to First Interstate Bank of
California, formerly First Interstate Bank, Ltd., as trustee (the "Subordinated
Trustee"; together with the Senior Trustee, the "Trustees"). The Notes will
have the maturities, interest rates (whether fixed or floating), redemption and
repayment provisions and other terms set forth in a pricing supplement to the
Prospectus referred to below. The Notes may be denominated in U.S. dollars,
foreign currencies or foreign composite currency units (the "Specified
Currency") as may be specified in the applicable pricing supplement.
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes to any agent acting as
principal at a discount for its own account or for resale to one or more
investors and the right to sell Notes directly to investors on their own behalf
or through other agents (the "Other Agents"), dealers or underwriters, the
Company hereby (i) appoints you as an agent of the Company for the purpose of
soliciting offers to purchase the Notes and (ii) agrees that whenever the
Company determines to sell Notes directly to you as principal for resale to
others, it will enter into a Terms Agreement relating to such sale in accordance
with the provisions of Section 1(b) hereof. For the purposes of this Agreement,
the term "the Agent" shall refer to you acting solely in the capacity as agent
for the
Company xxxxxxxxx and not as principal, the term "the Purchaser" shall refer to
you acting solely as principal hereunder and not as agent, and the name
"[Addressee]" shall refer to you acting in both such capacities or in either
such capacity.
1. Solicitations by the Agent of Offers to Purchase; Sales of Notes
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to the Purchaser.
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(a) Solicitations as Agent. Following the Commencement Date
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(referred to below), the Company shall notify the Agent from time to time as to
the commencement of a period during which the Notes may be offered and sold by
the Agent (each period, commencing with such a notification and ending at such
time as the authorization for offers and sales through the Agent shall have been
suspended by the Company or the Agent as provided hereunder, being herein
referred to as an "Offering Period"). On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, the Agent will use its best reasonable efforts to solicit offers to
purchase the Notes during each Offering Period upon the terms and conditions set
forth in the Prospectus as then amended and supplemented.
The Company agrees to pay the Agent at the time of delivery of and
payment for the Notes, as consideration for soliciting the sale of the Notes, a
commission equal to the percentage set forth on Schedule 1 hereto of the price
to public of each Note sold by the Company as the result of a solicitation by
the Agent; provided, however, that either the Agent or the Company may, upon not
less than 30 days notice, request that the commissions be renegotiated and if no
agreement is reached within such 30 day period this Agreement shall be
terminated, subject to Section 6 hereof.
The Agent is authorized to solicit orders for the Notes only in
principal amounts of $1,000 or any amount in excess thereof which is a multiple
of $1,000 or, in the case of Notes denominated in a Specified Currency other
than U.S. dollars, in the denominations set forth in the applicable pricing
supplement, at a purchase price equal to 100% of the principal amount of the
Notes, unless otherwise mutually agreed upon by the purchaser, the Agent and the
Company and specified in the applicable pricing supplement. The Agent shall
communicate to the Company, orally or in writing, each reasonable offer or
indication of interest to purchase Notes received by the Agent. The Company
shall have the sole right to accept offers to purchase the Notes and may reject
any such offer in whole or in part. The Agent shall have the right to reject,
in its discretion reasonably exercised, any offer received by it to purchase the
Notes, in whole or in part, and any such rejection shall not be deemed a breach
of its agreements contained herein. In soliciting offers to purchase the Notes
hereunder, the Agent is acting solely as agent for the Company, and not as
principal, and does not assume any obligation toward or relationship of agency
or trust with any purchaser of the Notes (other than any such obligation or
relationship which the Agent assumes independently of this Agreement). The
Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by the Agent and accepted by the Company, but the Agent shall not have any
liability to the Company in the event any such purchase is not consummated for
any reason. Under no circumstances will the Agent be obligated to purchase any
Notes for its own account.
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The Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Medium-Term
Note Administrative Procedures attached hereto as Exhibit A (the "Procedures").
The Procedures may be amended only by written agreement of the Company and the
Agent.
The documents required to be delivered by Section 4 of this Agreement
shall be delivered at the office of Xxxxxx, Gottlieb, Xxxxx & Xxxxxxxx, counsel
for the Agent, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, X.X. 10006, or such other place as
may be agreed to by the Company and the Agent, on such date as may be agreed to
by the Company and the Agent (the "Commencement Date").
(b) Purchases as Principal. Each sale of Notes to the Purchaser shall
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be made in accordance with the terms of this Agreement and a supplemental
agreement which will provide for the sale of such Notes to, and the purchase and
reoffering thereof by, the Purchaser. Each such supplemental agreement (which
may be oral and confirmed in writing, and shall be substantially to the effect
of Exhibit B hereto and which may take the form of an exchange of any standard
form of written telecommunication between the Purchaser and the Company) is
herein referred to as a "Terms Agreement". The Purchaser's commitment to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each Terms Agreement shall describe the Notes to be purchased by the Purchaser
pursuant thereto, specify the principal amount of such Notes, the interest rate
or interest rate formula, if any, on the Notes, the interest payment dates, if
any, the redemption dates and prices, if any, the repayment dates and prices, if
any, the Specified Currency, the price to be paid to the Company for such Notes,
the date and time of delivery of payment for such Notes (the "Purchase Date"),
the place of delivery of the Notes and payment therefor, the method of payment,
any requirements for the delivery or modification of the opinions of counsel,
the certificates from the Company or its officers, and the letters from the
Company's independent public accountants pursuant to Section 5 hereof. The
Purchaser may reallow any portion of the discount received by the Purchaser
pursuant to this paragraph to dealers or purchasers in connection with the offer
and sale of the Notes.
Delivery of the certificates for Notes sold to the Purchaser pursuant
to any Terms Agreement shall be made to the office of the Purchaser in New York,
New York or by other means for the account of the Purchaser through The
Depository Trust Company, not later than the Purchase Date set forth in the
respective Terms Agreement, against payment of funds to the Company in the net
amount due to the Company for such Notes by the method and in the form set forth
in the respective Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a
Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such
Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity and (ii) may be resold by such Purchaser at varying prices
from time to time or, if set forth in the applicable Terms Agreement and Pricing
Supplement, at a fixed public offering price. In connection with any resale of
Notes purchased, a Purchaser may use a selling or dealer group and may reallow
to any broker or dealer any portion of the discount or commission payable
pursuant hereto.
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2. Representations and Warranties. The Company represents and
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warrants to, and agrees with, [Addressee] that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such form for the registration under the Act of the Notes (Registration
Statement No. 333-_______) and such registration statement has become effective.
Each of the Indentures has been qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the Company has duly authorized the
issuance of the Notes. Such registration statement, at the time of filing, at
the time it became effective, and at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all
other material respects with said Rule. Such registration statement, including
the exhibits thereto, when such registration statement became effective, is
hereinafter called the "Registration Statement", and the prospectus in the form
in which it appears in the Registration Statement is hereinafter called the
"Prospectus." The term "preliminary prospectus" as used herein means a
prospectus filed as part of any post-effective amendment to the Registration
Statement prior to the effective date of such post-effective amendment, as
contemplated in Rule 430 under the Act. The Company proposes to file with the
Commission from time to time, pursuant to Rule 424(b) under the Act, supplements
to the Prospectus, which will describe certain terms of the Notes and prior to
any such filing will advise [Addressee] of all further information (financial
and other) with respect to the Company to be set forth therein. Any preliminary
form of supplemental prospectus which may be filed pursuant to Rule 424(b) under
the Act is hereinafter called a "preliminary supplemental prospectus." Any
reference herein to the Registration Statement, any preliminary prospectus, any
preliminary supplemental prospectus, or the Prospectus, as amended and
supplemented, shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before
the effective date of the Registration Statement, or the issue date of such
preliminary prospectus, preliminary supplemental prospectus, supplemental
prospectus or the Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus, any preliminary supplemental prospectus,
any supplemental prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the effective
date of the Registration Statement or the issue date of any preliminary
prospectus, any preliminary supplemental prospectus, any supplemental prospectus
or the Prospectus, as the case may be, deemed to be incorporated therein by
reference.
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(b) When the Registration Statement became effective, when this
Agreement is executed and delivered by the parties hereto, when any amendment to
the Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when any
supplement to the Prospectus is filed with the Commission pursuant to Rule
424(b) under the Act, on each day during an Offering Period, and at the time of
delivery of any Notes to any purchaser or his agent whose offer to purchase such
Notes was delivered to the Company during an Offering Period:
(i) the Registration Statement, as amended as of any such time,
and the Prospectus, as amended and supplemented as of any such time,
and the Indentures, complied and will comply in all material respects
with the applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act, and the respective rules thereunder; and
(ii) the Registration Statement, as amended as of any such time,
did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements not misleading and the
Prospectus as amended and supplemented as of any such time, did not
and will not include any untrue statement therein of a material fact
or omit to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Forms T-1) under the Trust Indenture
Act of the Trustees or (ii) the information contained in or omitted
from the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
[Addressee] or the Other Agents specifically for use in connection
with the preparation of the Registration Statement and the Prospectus
or any amendment thereof or supplement thereto.
3. Agreements of the Company. The Company agrees with [Addressee]
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that:
(a) Prior to the termination of the offering of the Notes pursuant to
this Agreement, the Company will not file any amendment to the Registration
Statement or any supplement to the Prospectus which relates to the Notes unless
the Company has previously furnished [Addressee] with a copy thereof for its
review and will not file any such proposed amendment or supplement to which
[Addressee] reasonably objects. Subject to the foregoing sentence, the Company
will promptly cause the Prospectus together with each supplement thereto to be
filed with the Commission pursuant to Rule 424(b). The Company will promptly
advise [Addressee] of (i) the filing of any amendment or supplement to the
Prospectus, including the filing of documents incorporated therein by reference,
(ii) the filing or effectiveness of any amendment to the Registration Statement,
(iii) any comments from the Commission relating to or any request by the
Commission for any amendment of the Registration Statement or any amendment of
or supplement to the Prospectus or for any additional information, (iv) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) the receipt
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by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof. Upon [Addressee]'s request, the
Company will within a reasonable time inform [Addressee] of the aggregate
principal amount of Notes registered under the Registration Statement that
remain unissued.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs or condition exists as
a result of which, in the reasonable opinion of counsel for [Addressee] or
counsel for the Company, the Registration Statement or the Prospectus as then
amended or supplemented would not reflect any facts or events which,
individually or in the aggregate, represent a fundamental change as contemplated
by Item 512 of Regulation S-K under the Act in the information set forth in the
Registration Statement or the Prospectus, as then amended or supplemented,
and/or would include an untrue statement of a material fact, or omit to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if, in the
reasonable opinion of either such counsel, it is necessary at any time to amend
or supplement the Registration Statement or the Prospectus, as then amended or
supplemented, to comply with the Act, the Company promptly will notify
[Addressee] and, if so notified by the Company, [Addressee] shall forthwith
suspend solicitation of offers to purchase Notes or sales, as the case may be,
and cease using the Prospectus as then amended or supplemented; the Company will
promptly prepare and file with the Commission, subject to the first sentence of
Section 3(a) above, an amendment or supplement to such Registration Statement or
Prospectus which will include such facts or events and/or will correct such
statement or omission or effect such compliance and will supply such amended or
supplemented Prospectus to [Addressee] in such quantities as [Addressee] may
reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to [Addressee] pursuant to Section 3(g)
below in connection with the preparation or filing of such amendment or
supplement, are satisfactory in all respects to [Addressee], upon the filing of
such amendment or supplement with the Commission or effectiveness of an
amendment to the Registration Statement, [Addressee] will resume its obligation
to solicit offers to purchase Notes hereunder.
(c) The Company will (i) comply, in a timely manner, with all
applicable requirements under the Exchange Act relating to the filing with the
Commission of the Company's reports pursuant to Section 13(a), 13(c) or 15(d) of
the Exchange Act and, if then applicable, of the Company's proxy statements
pursuant to Section 14 of the Exchange Act and (ii) undertake to obtain the
written consent of the Company's independent accountants as to the incorporation
by reference in the Registration Statement of the audited financial statements
reported on by them and contained in the Company's annual reports on Form 10-K
under the Exchange Act.
(d) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days after the end of the 12-month
period (except not later than 90 days if such period covers the Company's fiscal
year) beginning at the end of the fiscal quarter of the Company during which the
Registration Statement or a post-effective amendment thereto (as defined in Rule
158 under the Act) relating to the Notes became effective, an earnings statement
of the Company and its consolidated subsidiaries, which need not be audited,
covering
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such 12-month period, which earnings statement shall satisfy the provisions of
Section 11(a) of the Act and the rules and regulations of the Commission issued
thereunder (including Rule 158 under the Act).
(e) The Company will furnish to [Addressee] and counsel for
[Addressee] copies of the Registration Statement, the Prospectus and all
amendments of and supplements to such documents (including exhibits thereto and
documents incorporated by reference therein), in each case as soon as available
and in such quantities as [Addressee] reasonably requests.
(f) The Company will take all action reasonably necessary for the
qualification of the Notes for sale under the laws of such jurisdictions as
[Addressee] may designate, will maintain such qualifications in effect so long
as required for the distribution of the Notes pursuant to this Agreement and
will arrange for the determination of the legality of the Notes for purchase by
institutional investors.
(g) The Company shall furnish to [Addressee] such documents,
certificates of officers of the Company and opinions of counsel for the Company
relating to the business, operations and affairs of the Company, the
Registration Statement and the Prospectus, any amendments or supplements
thereto, the Indentures, the Notes, this Agreement, the Procedures and the
performance by the Company and [Addressee] of their respective obligations
hereunder and thereunder as [Addressee] may from time to time prior to the
termination of this Agreement reasonably request.
(h) If so provided in the Terms Agreement, during the period of time
commencing with the date of any such Terms Agreement and ending on the Purchase
Date of the Notes subject to such Terms Agreement, the Company shall not,
without the prior written consent of the Purchaser, (1) issue or announce the
proposed issuance of any of its debt securities with substantially similar terms
to the Notes being purchased pursuant to the Terms Agreement or (2) purchase any
of its Notes.
(i) The Company shall, whether or not any sale of Notes is
consummated, pay all expenses incident to the establishment of the Notes program
(including reasonable fees and disbursements of counsel to [Addressee]) and to
the performance of its obligations under this Agreement and any Terms Agreement,
including, without limitation, the fees and disbursements of its accountants and
counsel, the cost of printing (or other production) and delivery of the
Registration Statement and the Prospectus, all amendments and supplements
thereto, the Indentures, and all other documents relating to the offering, the
cost of preparing, printing, packaging and delivering the Notes, the fees and
disbursements (including fees of counsel) incurred in connection with the
qualification of the Notes for sale and determination of eligibility for
investment of the Notes under the securities or Blue Sky laws of such
jurisdictions as [Addressee] may designate, the fees and disbursements of the
Trustees, the fees of any agency that rates the Notes and the fees and expenses
in connection with any listing of the Notes on the New York Stock Exchange.
(j) The Company shall, whether or not any sale of Notes is
consummated, reimburse the Agent for any out-of-pocket expenses (including,
without limitation, advertising expenses approved by the Company in its
discretion and the reasonable fees and disbursements
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of counsel to the Agent) incurred heretofore or hereafter by the Agent in
connection with the offering, purchase and sale of the Notes. Any such out-of-
pocket expenses shall be payable upon the receipt by the Company from the Agent
of an itemized statement therefor.
(k) Each time the Registration Statement or the Prospectus is amended
or supplemented, including by incorporation by reference upon the filing of any
annual report on Form 10-K or quarterly report on Form 10-Q (other than by an
amendment or supplement providing solely for a change in the interest rate or
formula, redemption date(s) and price(s), repayment date(s) and price(s),
currency, denominations, interest payment dates, maturity and other terms set
forth on the face of the Notes or for a change deemed immaterial in the
reasonable opinion of [Addressee]), the Company will deliver or cause to be
delivered forthwith to [Addressee] a certificate of the Company signed by the
President or the Vice President and Treasurer of the Company (or another officer
or officers acceptable to [Addressee]), dated the date of the effectiveness of
such amendment or the date of filing of such amendment or supplement, as the
case may be, in form reasonably satisfactory to [Addressee], to the effect that
the statements contained in the certificate referred to in Section 4(d) that was
last furnished to [Addressee] (either pursuant to Section 4(d), 5(b) or pursuant
to this Section 3(k)) are true and correct at the time of the effectiveness of
such amendment (which for the purposes of this Agreement in the case of the
filing of materials incorporated by reference shall be the date of the filing of
such materials) or the filing of such amendment or supplement, as the case may
be, as though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement, as amended at the time of
effectiveness of such amendment, and to the Prospectus, as amended and
supplemented at the date of such certificate) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in Section 4(d) but
modified, if necessary, to relate to the Registration Statement, as amended at
the time of the effectiveness of such amendment, and to the Prospectus, as
amended and supplemented at the date of such certificate.
(l) Each time the Registration Statement or the Prospectus is amended
or supplemented, including by incorporation by reference upon the filing of any
annual report on Form 10-K or quarterly report on Form 10-Q, the Company shall
furnish to or cause to be furnished forthwith to [Addressee] written opinions of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Xxxxxx X. Xxx, Vice President, General
Counsel and Secretary of the Company, to the effect set forth in Exhibits C and
D hereto, respectively, or in either such case other counsel satisfactory to
[Addressee] (it being agreed that, in the case of the opinion to the effect set
forth in Exhibit C hereto, an opinion of the General Counsel and Secretary of
the Company will be satisfactory to [Addressee]); provided, however, that such
opinion need not be furnished with respect to an amendment or supplement
providing solely for a change in the interest rate or formula, redemption
date(s) and price(s), repayment date(s) and price(s), currency, denominations,
interest payment dates, maturity and other terms set forth on the face of the
Notes or for a change deemed immaterial in the reasonable opinion of
[Addressee]. Any such opinion shall be dated the date of the effectiveness of
such amendment or the date of filing of such supplement, as the case may be, in
form satisfactory to [Addressee]. In lieu of such opinion, either counsel last
furnishing such an opinion to [Addressee] may furnish to [Addressee] a letter to
the effect that [Addressee] may rely on such last opinion to the same extent as
though it were dated the date of such letter and authorizing reliance on such
last opinion (except that statements in such last opinion will be deemed to
relate to the Registration Statement, as amended at the time of the
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effectiveness of such amendment, and to the Prospectus, as amended and
supplemented at the date of such letter).
(m) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information, the Company shall cause Ernst & Young LLP, its independent public
accountants, forthwith to furnish [Addressee] a letter, dated the date of the
effectiveness of such amendment or the date of filing of such supplement, as the
case may be, in form satisfactory to [Addressee], of the same tenor as the
letter referred to in Section 4(e) and the provisions of such letter described
in clause (i) of Exhibit F hereto but modified to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date of such
letter, and of the same tenor as the portions of the letter referred to in
clauses (ii) and (iii) of Exhibit F hereto with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company; provided, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include or
incorporate by reference financial information with respect to a fiscal quarter,
Xxxxx & Young LLP may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
included or incorporated by reference therein of an accounting, financial or
statistical nature is of such a nature that, in the reasonable judgment of
[Addressee], such letter should cover such other information.
(n) Each acceptance by the Company of an offer for the purchase of
Notes hereunder (including any purchase by [Addressee] as principal and each
execution and delivery by the Company of a Terms Agreement with [Addressee])
shall be deemed to be an affirmation that the representations and warranties of
the Company contained in or made pursuant to this Agreement to [Addressee]
pursuant hereto are true and correct as of the time of such acceptance or as of
the date of such Terms Agreement, as the case may be, as though made at and as
of such date and an undertaking that such representations and warranties will be
true and correct at the time of delivery to the purchaser or his agent, or
[Addressee], of the Notes relating to such acceptance or as of the Purchase Date
relating to such sale as the case may be, as though made at and as of each such
time (and it is understood that such representations and warranties shall relate
to the Registration Statement and the Prospectus as amended and supplemented to
each such time).
(o) The Company will comply, and represents and warrants that it has
complied, with the provisions of that certain Florida act relating to the
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida Statutes, and the rules and regulations thereunder or is exempt
therefrom.
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4. Conditions to the Obligations of the Agent. The obligations of
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the Agent to solicit offers to purchase the Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in each
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed and to the following additional conditions
precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Agent the opinions of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Xxxxxx X. Xxx, Vice President, General
Counsel and Secretary of the Company (or in either such case other counsel of
the Company acceptable to the Agent), dated the Commencement Date, to the effect
set forth in Exhibits C and D, respectively, hereto.
(c) The Agent shall have received from Xxxxxx, Xxxxxxxx, Xxxxx &
Xxxxxxxx, counsel for the Agent (or other counsel acceptable to the Agent), an
opinion dated the Commencement Date to the effect set forth in Exhibit E hereto.
(d) The Company shall have furnished to the Agent a certificate of
the Company, signed by the President or the Vice President and Treasurer of the
Company (or another officer acceptable to the Agent), dated the Commencement
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, as amended as of the date of such certificate, the
Prospectus, as amended and supplemented as of the date of such certificate, and
this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date of such certificate with the same effect as if made on the
date of such certificate and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligations of the Agent
under this Agreement;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, have been
contemplated; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus, as amended
and supplemented, there has been no material adverse change, or any
development involving a prospective change, in or affecting the
financial condition, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, nor any material
change in the debt maturing more than one year after the date of issue
of the Company and its consolidated subsidiaries, other than those
reflected in or contemplated by the Prospectus, as amended and
supplemented as of the date of the certificate.
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(e) Ernst & Young LLP shall have furnished to the Agent a letter or
letters, dated the Commencement Date, in form and substance satisfactory to the
Agent, confirming that they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable published rules and
regulations thereunder, that the response to Item 10 of the Registration
Statement is correct insofar as it relates to them and to the effect set forth
in Exhibit F hereto.
(f) The Company shall have furnished to the Agent such further
information, certificates and documents as the Agent may reasonably request from
time to time.
Any certificate signed by any officer of the Company and delivered to
[Addressee] or its counsel and delivered explicitly pursuant to the terms of
this Agreement shall be deemed a representation and a warranty by the Company to
[Addressee] as to matters covered thereby, as if set forth herein.
5. Conditions to the Obligations of the Purchaser. The obligations
----------------------------------------------
of the Purchaser to purchase Notes pursuant to any Terms Agreement will be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, and as of the date of the
respective Terms Agreement and as of the Purchase Date thereunder (as if made on
such respective dates), to the accuracy of the statements of the Company's
officers made in each certificate furnished pursuant to the provisions hereof,
to the performance and observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall be in effect and no proceedings
for that purpose shall have been instituted or threatened.
(b) To the extent required by the respective Terms Agreement, the
Purchaser shall have received (i) the opinions of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP and Xxxxxx X. Xxx, Vice President, General Counsel and Secretary of the
Company, dated the Purchase Date, to the effect set forth in Exhibits C and D,
respectively hereto, (ii) the opinion of Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx,
counsel for the Purchaser (or other counsel acceptable to the Purchaser), dated
the Purchase Date, to the effect set forth in Exhibit E hereto, (iii) a
certificate of the Company, dated the Purchase Date, to the effect set forth in
Section 4(d), and (iv) a letter or letters from the Company's independent public
accountants to the effect set forth in Section 4(e) but dated the Purchase Date.
(c) Subsequent to the date of the Terms Agreement, there shall not
have been any change, or any development involving a prospective change, in or
affecting the financial condition, business or properties of the Company and its
subsidiaries, taken as a whole, the effect of which is, in the judgment of the
Purchaser, so material and adverse as to make it impractical or inadvisable to
proceed with the delivery or offering of the Notes to be purchased as
contemplated by the Terms Agreement.
11
(d) Prior to the Purchase Date, the Company shall have furnished to
the Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, this Agreement and all
obligations of the Purchaser hereunder may be canceled at, or at any time prior
to, the respective Purchase Date by the Purchaser. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless [Addressee] and each person who controls [Addressee]
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities and reasonable expenses (including
reasonable costs of investigation), joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any amendment
thereof, or in any preliminary prospectus, any preliminary supplemental
prospectus, or the Prospectus, or in any amendment thereof or supplement
thereto, or arising out of or based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them,
as the same shall be incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon any untrue
statement or omission, or allegation thereof, which has been made therein or
omitted therefrom in reliance upon and in conformity with written information
furnished to the Company by or on behalf of [Addressee] specifically for use in
connection with the preparation thereof, and (ii) such indemnity with respect to
any preliminary prospectus, the Prospectus or any preliminary supplemental
prospectus, shall not inure to the benefit of [Addressee] (or any person
controlling [Addressee]), if the Company shall have delivered sufficient
quantities of the Prospectus, as amended and supplemented, to [Addressee] within
a reasonable time prior to the earlier of the delivery of the written
confirmation of the sale of such Notes or the delivery of such Notes to the
person asserting such loss, claim, damage, liability or action for which
indemnification is sought, and the Prospectus as so amended and supplemented
(excluding documents incorporated by reference) was not sent or given to such
person at or prior to the earlier of the delivery of the written confirmation of
the sale of such Notes or the delivery of such Notes to such person in any case
where such sending or giving of a prospectus is required by the Act and the
untrue statement or omission of a material fact contained in such preliminary
prospectus, such Prospectus or such preliminary supplemental prospectus, was
corrected in the Prospectus, as so amended and supplemented, provided to
[Addressee], unless such failure to deliver the Prospectus (or the Prospectus as
amended or supplemented) was a result of noncompliance by the Company with
Section 3(e) of this Agreement. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
12
(b) [Addressee] agrees to indemnify and hold harmless the Company,
each person, if any, who controls the Company within the meaning of either the
Act or the Exchange Act, each director of the Company and each officer of the
Company who signs the Registration Statement or any amendment thereto to the
same extent as the foregoing indemnity from the Company to [Addressee], but only
insofar as such losses, claims, damages or liabilities arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
which was made therein in reliance upon and in conformity with written
information supplied to the Company by or on behalf of [Addressee] with respect
to [Addressee]. This indemnity agreement will be in addition to any liability
which [Addressee] may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 6. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 6 for any legal or other expense
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel), approved by [Addressee] in the
case of paragraph (a) of this Section 6, representing the indemnified parties
under such paragraph (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel xxxxxxxxxxxx to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii). The indemnifying party shall not be liable for any settlement of any
proceeding affected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder
13
by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability arising out of such
proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 6(a) is
unavailable or insufficient, 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 (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Notes that gave rise to such losses, claims,
damages or liabilities or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative benefits
but also the relative fault of the indemnifying party or parties on the one hand
and the indemnified party on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
benefits received by the Company on the one hand and [Addressee] on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by [Addressee] from
the offering of such Notes. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or [Addressee],
the parties' relative intents, knowledge, access to information and opportunity
to correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company and [Addressee]
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the first sentence of this Section 6(d); provided, that, notwithstanding
the provisions of this Section 6(d), (y) [Addressee] shall not be required to
contribute any amount in excess of the amount by which the total price at which
such Notes were offered and sold to the public through [Addressee] exceeds the
amount of any damages which [Addressee] has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission and (z) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6(d), each person who controls [Addressee] within the meaning of
the Act shall have the same rights to contribution as [Addressee]. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Section
6(d), notify such party or parties from whom contribution may be sought, but the
omission to notify such party or parties shall not relieve the party or parties
from whom contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this Section 6(d).
14
7. Termination of the Appointment of the Agent or any Terms
--------------------------------------------------------
Agreement.
---------
(a) The appointment of the Agent and the obligations of the Agent
under this Agreement may be terminated at any time either by the Company or by
the Agent upon the giving of written notice of such termination to the other
party hereto. In the event of such termination, neither party shall have any
liability to the other party hereto, except as provided in the first sentence of
the second paragraph of Section 1 and Sections 3(d), 3(i), 3(j), 6, 8 and 11 and
except that, if at the time of termination an offer to purchase any of the Notes
has been accepted by the Company but the time of delivery to the purchaser or
its agent of the Note or Notes relating thereto has not occurred, the Company's
representations and warranties stated in Section 2(b) and its obligations under
the third and fourth paragraphs of Section 1 and Sections 3(a), 3(b), 3(c),
3(e), 3(f), 3(g), 3(k), 3(l), 3(m), and 3(n) shall remain in full force and
effect and not be terminated until the delivery of such Notes.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company prior to
delivery of and payment for Notes to be purchased thereunder, if prior to such
time (i) trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum prices shall have been established on
such Exchange, (ii) a commercial banking moratorium shall have been declared by
federal, New York or California State authorities, (iii) unless so provided in
the Terms Agreement, there shall have occurred any downgrading in the rating
accorded the Company's debt securities by Xxxxx'x or S & P, (iv) unless so
provided in the Terms Agreement, either of such organizations shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities, or
(v) there shall have occurred any material adverse change in the financial
markets in the United States, or if such Offered Securities are denominated
and/or payable in, or indexed to, one or more foreign or composite currencies,
in the international financial markets, or any outbreak or material escalation
of hostilities or other calamity or crisis or any change or development or
events involving a prospective change in national or international political,
financial or economic conditions, the effect of which on the financial markets
of the United States is such as to make it, in the judgment of the Purchaser,
impracticable to market the Notes, such Terms Agreements and all obligations of
the Purchaser hereunder may be cancelled at, or any time prior to, the Closing
Date in the absolute discretion of the Purchaser, without liability on the part
of any Purchaser to the Company.
8. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Agent set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Agent or the Company or any of the officers,
directors or controlling persons referred to in Section 6 hereof, and will
survive delivery of and payment for the Notes.
15
9. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to [Addressee], will be mailed,
delivered or transmitted to it by any standard form of telecommunications at
, New York, New York ; or, if sent to the Company, will be mailed,
delivered or transmitted by any standard form of telecommunications at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, attention of the Senior Vice
President and Treasurer.
10. Successors. This Agreement will inure 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 6 hereof, and no
other person will have any right or obligation hereunder. No purchaser of the
Notes from [Addressee] shall be deemed a successor because of such purchase.
11. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of California.
12. Counterparts. This Agreement may be executed by each of the
------------
parties hereto in any number of counterparts, each of which counterparts, when
so executed and delivered shall be deemed to be an original but all such
counterparts shall together constitute but one and the same agreement.
16
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and [Addressee].
Very truly yours,
Transamerica Finance Corporation
By: __________________________________
Senior Vice President
and Treasurer
The foregoing Agreement is
hereby confirmed and
accepted as of the date
first written above.
By: __________________________
17
Schedule 1
Transamerica Finance Corporation
Medium-Term Notes, Series __
Commission Schedule
Term Commission Rate
---- ---------------
From 9 months to less than 1 year....................... .125%
From 1 year to less than 18 months...................... .150%
From 18 months to less than 2 years..................... .200%
From 2 years to less than 3 years....................... .250%
From 3 years to less than 4 years....................... .350%
From 4 years to less than 5 years....................... .450%
From 5 years to less than 6 years....................... .500%
From 6 years to less than 7 years....................... .550%
From 7 years to less than 10 years...................... .600%
From 10 years to less than 15 years..................... .625%
From 15 years to less than 20 years..................... .650%
From 20 years up to and including 30 years.............. .750%
Beyond 30 years......................................... *
* At a rate to be agreed by the Company and the Agent
18
EXHIBIT A
TRANSAMERICA FINANCE CORPORATION
Medium-Term Note Administrative Procedures
------------------------------------------
Medium-Term Notes, Series __ (the "Notes") are to be offered on a
continuing basis by Transamerica Finance Corporation (the "Company"). The Notes
may be issued as Senior Medium-Term Notes ("Senior Notes") and/or Subordinated
Medium-Term Notes ("Subordinated Notes"). The Agent has agreed to solicit
purchases of the Notes. The Agent will not be obligated to purchase Notes for
its own account. The Notes are being sold pursuant to a Distribution Agreement
between the Company and the Agent dated December ___, 1998 (the "Distribution
Agreement"). In the Distribution Agreement, the Agent may have agreed to use
its best reasonable efforts to solicit purchases of the Notes and/or the Agent,
as principal, may purchase the Notes for its own account pursuant to the terms
and settlement details of a terms agreement entered into between the Company and
such Agent, as contemplated by the Distribution Agreement. Only those
provisions contained in these Administrative Procedures which are applicable to
the particular role that the Agent shall perform shall apply. The Senior Notes
are to be issued under an Indenture dated as of April 1, 1991 (the "Senior
Indenture") between the Company and Xxxxxx Trust and Savings Bank, as Trustee
(the "Senior Trustee"). The Subordinated Notes are to be issued under an
Indenture dated as of April 1, 1991 (the "Subordinated Indenture") between the
Company and The Bank of New York as successor trustee to First Interstate Bank
of California, formerly First Interstate Bank, Ltd., as Trustee (the
"Subordinated Trustee"; together with the Senior Trustee, the "Trustees").
Notes issued under the Senior Indenture will rank pari passu with all other
Senior Indebtedness (as defined in the Prospectus) of the Company. Notes issued
under the Subordinated Indenture will rank pari passu with all other
Subordinated Indebtedness (as defined in the Prospectus) of the Company and,
together with such other Subordinated Indebtedness, will be subordinated in
right of payment to the prior payment in full of the Senior Indebtedness of the
Company. The Notes will be registered with the Securities and Exchange
Commission (the "Commission"). The Senior Trustee and the Subordinated Trustee
will be appointed as registrars and paying agents with respect to the Senior
Notes and the Subordinated Notes, respectively.
The procedure to be followed during, and the specific terms of, the
solicitation of orders by the Agent and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities
will be handled for the Company by its Treasury Department. The Company will
advise the Agent and the Trustees in writing of those persons handling
administrative responsibilities with whom the Agent and the Trustees are to
communicate regarding orders to purchase Notes and the details of their
delivery.
The Notes will bear interest at either fixed rates ("Fixed Rate
Notes") or floating rates ("Floating Rate Notes"). Each Note will be
represented by either a Global Security (as defined hereinafter) delivered to
the applicable Trustee, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (a "Book-Entry Note") or a
certificate delivered to the Holder thereof or a Person designated by such
Holder (a "Certificated Note"). Except in certain limited circumstances, an
owner of a Book-Entry Note will not be entitled to receive a certificate
representing such Note.
A-1
Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indentures, the Prospectus
dated December __, 1998 or the Prospectus Supplement dated December ___, 1998
shall be used herein as therein defined. To the extent that the procedures set
forth below conflict with the provisions of the Notes, the applicable Indenture
or the Distribution Agreement, the relevant provisions of the Notes, the
applicable Indenture and the Distribution Agreement shall control.
A-2
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustees will
perform the custodial, document control and administrative functions described
below, each in accordance with its respective obligations under a Letter of
Representations from the Company and such Trustee to DTC and a Medium-Term Note
Certificate Agreement between such Trustee and DTC and in accordance with its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without coupons
(a "Global Security") representing up to
$200,000,000 principal amount of all such Notes
that have the same rank (senior or subordinated),
Stated Maturity, redemption provisions, repayment
provisions, renewability provisions, Interest
Payment Dates, Interest Payment Period, Original
Issue Date, Original Issue Discount provisions
and, in the case of Fixed Rate Notes, Interest
Rate, or, in the case of Floating Rate Notes,
Initial Interest Rate, Base Rate, Index Maturity,
Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier, Minimum Interest Rate
(if any) and Maximum Interest Rate (if any)
(collectively, "Terms"). Each Global Security will
be dated and issued as of the date of its
authentication by the applicable Trustee. Each
Global Security will bear an "Interest Accrual
Date", which will be (i) with respect to an
original Global Security (or any portion thereof),
its original issuance date, and (ii) with respect
to any Global Security (or portion thereof) issued
subsequently upon exchange of a Global Security or
in lieu of a destroyed, lost or stolen Global
Security, the most recent Interest Payment Date to
which interest has been paid or duly provided for
on the predecessor Global Security or Securities
(or if no such payment or provision has been made,
the original issuance date of the predecessor
Global Security), regardless of the date of
authentication of such subsequently issued Global
Security. No Global Security will represent (i)
both Fixed Rate and Floating Rate Book-Entry Notes
or (ii) any Certificated Note.
Identification Numbers: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of two
series of CUSIP numbers (including tranche
numbers), each of which series consists of
approximately 900 CUSIP numbers and relates to
Global Securities representing one of the two
ranks of Book-Entry Notes. The Company has
obtained
A-3
from the CUSIP Service Bureau a written list of
each such series of reserved CUSIP numbers and has
delivered to the applicable Trustee and DTC such
written list of 900 CUSIP numbers of each such
series. The Company will assign CUSIP numbers,
serially with respect to each rank, to Global
Securities as described below under Settlement
Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Company has assigned to Global Securities. At any
time when fewer than 100 of the reserved CUSIP
numbers of a series remain unassigned to Global
Securities, and if it deems necessary, the Company
will reserve additional CUSIP numbers for
assignment to Global Securities representing Book-
Entry Notes of the rank to which such series
relates. Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list of such
additional CUSIP numbers to the applicable Trustee
and DTC.
Registration: Each Global Security will be registered in the
name of Cede & Co., as nominee for DTC, on the
Security Register maintained under the Indenture
governing such Global Security. The beneficial
owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by such
owner) will designate one or more participants in
DTC (with respect to such Note, the
"participants") to act as agent or agents for such
owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-
entry form, in accordance with instructions
provided by such participants, a credit balance
with respect to such Note in the account of such
participants. The ownership interest of such
beneficial owner in such Note will be recorded
through the records of such participants or
through the separate records of such participants
and one or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and, in
turn, by participants (and in certain cases, one
or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees
of such Note.
Exchanges: The Trustees may deliver to DTC and the CUSIP
Service Bureau at any time a written notice of
consolidation specifying (i) the CUSIP numbers of
two or more Outstanding Global Securities that
represent Book-Entry Notes having the same Terms
and for which interest has been paid to the same
date, (ii) a date, occurring at least thirty days
after such written notice is delivered and at
least thirty days before the next Interest Payment
Date for such Book-Entry Notes, on which such
Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP
number, obtained from the Company, to be assigned
to such replacement Global Security. Upon receipt
of such a notice, DTC
A-4
will send to its participants (including the
applicable Trustee) a written reorganization
notice to the effect that such exchange will occur
on such date. Prior to the specified exchange
date, the applicable Trustee will deliver to the
CUSIP Service Bureau a written notice setting
forth such exchange date and the new CUSIP number
and stating that, as of such exchange date, the
CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the
specified exchange date, the applicable Trustee
will exchange such Global Securities for a single
Global Security bearing the new CUSIP number and a
new Interest Accrual Date, and the CUSIP numbers
of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures,
be cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $200,000,000 in
aggregate principal amount, one Global Security
will be authenticated and issued to represent each
$200,000,000 of principal amount of the exchanged
Global Securities and an additional Global
Security will be authenticated and issued to
represent any remaining principal amount of such
Global Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date not
less than nine months nor more than 30 years after
the settlement date for such Note, as selected by
the purchaser and approved by the Company.
Price to Public: Each Note will be issued at 100% of its principal
amount, unless otherwise mutually agreed upon by
the purchaser and the Company and specified in the
applicable pricing supplement.
Notice of Repayment Dates: The applicable Trustee will notify DTC 60 days
prior to each Repayment Date, if any, with respect
to a Note of the CUSIP number of such Note, the
Repayment Date, the Repayment Price and the
exercise period.
Denominations: Book-Entry Notes will be issued in principal
amounts of $1,000 or any amount in excess thereof
that is an integral multiple of $1,000. Global
Securities will be denominated in principal
amounts not in excess of $200,000,000. If one or
more Book-Entry Note or Notes having an aggregate
principal amount in excess of $200,000,000 would,
but not for the preceding sentence, be represented
by a single Global Security, then one Global
Security will be issued to represent each
$200,000,000 principal amount of such Book-Entry
Note or Notes and an additional Global Security
will be issued to represent any remaining
principal amount of such Book-Entry Note or Notes.
In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall
be assigned the same CUSIP number.
A-5
Interest: General. Interest, if any, on each Book-Entry Note
-------
will accrue from the Interest Accrual Date of the
Global Security representing such Note. Each
payment of interest on a Book-Entry Note will
include interest accrued to but excluding the
related Interest Payment Date (provided that in
the case of Floating Rate Notes which reset daily
or weekly, interest payments will include interest
accrued to and including the Regular Record Date
immediately preceding the related Interest Payment
Date) or Maturity (other than a Maturity of a
Fixed Rate Book-Entry Note occurring on the
thirty-first day of a month, in which case such
payment will include interest accruing to but
excluding the thirtieth day of such month).
Interest payable at the Maturity of a Book-Entry
Note will be payable to the Person to whom the
principal of such Note is payable. Standard &
Poor's Corporation will use the information
received in the pending deposit message described
under Settlement Procedure "C" below in order to
include the amount of any interest payable and
certain other information regarding the related
Global Security in the appropriate weekly bond
report published by Standard & Poor's Corporation.
Regular Record Dates. The Regular Record Date with
--------------------
respect to any Interest Payment Date shall be the
date fifteen calendar days immediately preceding
such Interest Payment Date whether or not such
date shall be a Business Day.
Fixed Rate Book-Entry Notes. Unless otherwise
---------------------------
specified pursuant to Settlement Procedure "A"
below, interest payments on Fixed Rate Book-Entry
Notes will be made semi-annually on March 1 and
September 1 of each year and at Maturity;
provided, however, that in the case of a Fixed
Rate Book-Entry Note issued between a Regular
Record Date and an Interest Payment Date or on an
Interest Payment Date, the first interest payment
will be made on the Interest Payment Date
following the next succeeding Regular Record Date
to the registered owner on such succeeding Regular
Record Date.
Floating Rate Book-Entry Notes. Interest payments
------------------------------
will be made on Floating Rate Book-Entry Notes
monthly, quarterly, semi-annually or annually.
Interest will be payable, in the case of Floating
Rate Book-Entry Notes with a monthly Interest
Payment Period, on the third Wednesday of each
month; with a quarterly Interest Payment Period,
on the third Wednesday of March, June, September
and December of each year; with a semi-annual
Interest Payment Period, on the third Wednesday of
the two months specified pursuant to Settlement
Procedure "A" below; and with an annual Interest
Payment Period, on the third Wednesday of the
month specified pursuant to Settlement Procedure
"A" below;
A-6
provided, however, that if an Interest Payment
Date for Floating Rate Book-Entry Notes would
otherwise be a day that is not a Business Day with
respect to such Floating Rate Book-Entry Notes,
such Interest Payment Date will be the next
succeeding Business Day with respect to such
Floating Rate Book-Entry Notes, except in the case
of a LIBOR Note if such Business Day is in the
next succeeding calendar month, in which event
such Interest Payment Date will be the immediately
preceding Business Day; and provided, further,
that in the case of a Floating Rate Book-Entry
Note issued between a Regular Record Date and an
Interest Payment Date or on an Interest Payment
Date, the first interest payment will be made on
the Interest Payment Date following the next
succeeding Regular Record Date to the registered
owner on such succeeding Regular Record Date.
Notice of Interest Payment and Regular Record
---------------------------------------------
Dates. On the first Business Day of January,
-----
April, July and October of each year, the
applicable Trustee will deliver to the Company a
written list of Regular Record Dates and Interest
Payment Dates that will occur with respect to the
related Book-Entry Notes during the six-month
period beginning on such first Business Day.
Promptly after each Interest Determination Date
for Floating Rate Notes, the Calculation Agent
will notify Standard & Poor's Corporation and the
applicable Trustee of the interest rates
determined on such Interest Determination Date.
Calculation of Interest Fixed Rate Book-Entry Notes. Interest on Fixed
---------------------------
Rate Book-Entry Notes (including interest for
partial periods) will be calculated on the basis
of a year of twelve thirty-day months. (Examples
of interest calculations are as follows: The
period from September 1, 1997, to March 1, 1998,
equals 6 months and 0 days, or 180 days; the
interest payable equals 180/360 times the annual
rate of interest times the principal amount of the
Note. The period from September 3, 1997, to
February 1, 1998, equals 4 months and 28 days, or
148 days; the interest payable equals 148/360
times the annual rate of interest times the
principal amount of the Note.)
Floating Rate Book-Entry Notes. Interest rates on
------------------------------
Floating Rate Book-Entry Notes will be determined
as set forth in the form of Notes. Interest on
Floating Rate Book-Entry Notes will be calculated
on the basis of actual days elapsed and a year of
360 days except that in the case of Treasury Rate
Notes, interest will be calculated on the basis of
the actual number of days in the year.
Payments of Principal Payments of Interest Only. Promptly after each
and Interest -------------------------
Regular Record Date, each Trustee will deliver
to the Company and DTC a written notice
specifying by CUSIP number the amount of
interest to be
A-7
paid on each Global Security for which such Person
serves as Trustee on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
Maturity) and the total of such amounts. DTC will
confirm the amount payable on each Global Security on
such Interest Payment Date by reference to the daily
bond reports published by Standard & Poor's Corporation.
The Company will pay to the applicable Trustee (in
immediately available funds) the total amount of
interest due on such Interest Payment Date (other than
at Maturity), and such Trustee will pay such amount to
DTC at the times and in the manner set forth below under
"Manner of Payment". If any Interest Payment Date for or
the Maturity of a Book-Entry Note is not a Business Day,
the payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on
such payment for the period from and after such Interest
Payment Date or Maturity, as the case may be.
Payments at Maturity. On or about the first Business Day
--------------------
of each month, each Trustee will deliver to the Company
and DTC a written list of principal and interest to be
paid on each Global Security for which such Person
serves as Trustee maturing either at Stated Maturity or
on a Redemption or Repayment Date in the following
month. The Company, the Trustees and DTC will confirm
the amounts of such principal and interest payments with
respect to each such Global Security on or about the
fifth Business Day preceding the Maturity of such Global
Security. The Company will pay to the applicable Trustee
(in immediately available funds) the principal amount of
such Global Security, together with interest due at such
Maturity. Such Trustee will pay such amounts to DTC at
the times and in the manner set forth below under
"Manner of Payment". If any Maturity of a Global
Security representing Book-Entry Notes is not a Business
Day, the payment due on such day shall be made on the
next succeeding Business Day and no interest shall
accrue on such payment for the period from and after
such Maturity. Promptly after payment to DTC of the
principal and interest due at the Maturity of such
Global Security, the applicable Trustee will cancel such
Global Security in accordance with the terms of the
applicable Indenture and deliver it to the Company with
a certificate with respect to such cancellation.
Manner of Payment. The total amount of any principal and
-----------------
interest due on Global Securities on any Interest
Payment Date or at Maturity shall be paid by the Company
to the applicable Trustee in funds available for
immediate use by such Trustee as of 9:30 A.M. (New York
City time) on such date. The Company will make such
payment on such Global Securities by wire transfer to
the
A-8
applicable Trustee. The Company will confirm such
instructions in writing to the applicable Trustee. Prior
to 10 A.M. (New York City time) on each Maturity Date or
as soon as possible thereafter, the applicable Trustee
will pay by separate wire transfer (using Fedwire
message entry instructions in a form previously
specified by DTC) to an account at the Federal Reserve
Bank of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment of
interest or principal (together with interest thereon)
due on a Global Security on such Maturity Date. On each
Interest Payment Date, interest payments shall be made
to DTC in same day funds in accordance with existing
arrangements between the Trustees and DTC. Thereafter on
each such date, DTC will pay, in accordance with its
SDFS operating procedures then in effect, such amounts
in funds available for immediate use to the respective
institutions that have accounts with the Depositary or
its nominee ("participants") and in whose names the
Book-Entry Notes represented by such Global Securities
are recorded in the book-entry system maintained by DTC.
None of the Company and the Trustees shall have any
direct responsibility or liability for the payment by
DTC to such participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
-----------------
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in DTC
or other Person responsible for forwarding payments and
materials directly to the beneficial owner of such Note.
Acceptance and Unless otherwise instructed by the Company, the Agent
Rejection of Offers: will advise the Company promptly by telephone of all
offers to purchase Book-Entry Notes received by the
Agent other than any offers rejected by it in whole or
in part in the reasonable exercise of its discretion.
Unless otherwise agreed by the Company and the Agent,
the Company has the sole right to accept offers to
purchase Book-Entry Notes and may reject any such offer
in whole or in part.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All orders accepted by the
Company will be settled on the fifth Business Day
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement at a
different time.
A-9
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company through the Agent shall be as
follows:
A. The Agent will advise the Company by telephone of
the following settlement information:
1. Principal amount.
2. Stated Maturity and New Maturity Date(s), if
any, and Notice of Renewal Date(s), if any.
3. In the case of a Fixed Rate Book-Entry Note,
the Interest Rate and, in the case of a
Floating Rate Book-Entry Note, the Initial
Interest Rate (if known at such time), Base
Rate, Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any) and Maximum Interest Rate (if any).
4. Interest Payment Period and Interest Payment
Dates.
5. Rank.
6. Redemption provisions, if any.
7. Repayment provisions, if any.
8. Settlement date.
9. Price.
10. Agent's commission or discount, if
applicable.
11. Whether the Note is an Original Issue
Discount Note.
12. Net Proceeds to the Company.
13. Whether the Agent is acting as agent or as
principal.
14. Specified Currency and if the Specified
Currency is not U.S. dollars, the authorized
denominations.
15. Such other information specified with
respect to such Note.
A-10
B. The Company will assign a CUSIP number to the
Global Security representing such Note and then
advise the applicable Trustee by telephone or
electronic transmission (confirmed in writing at
any time on the same date) of the information set
forth in Settlement Procedure "A" above, such
CUSIP number, the name of such Agent and if such
Note is an Original Issue Discount Note, the total
amount of OID, the yield to maturity, the Initial
Accrual Period and the method used. The Company
will also notify the Agent of such CUSIP number by
telephone as soon as practicable. Each such
communication by the Company shall constitute a
representation and warranty by the Company to the
applicable Trustee and the Agent that (i) such
Note is then, and at the time of issuance and sale
thereof will be, duly authorized for issuance and
sale by the Company, (ii) such Note, and the
Global Security representing such Note, will
conform with the terms of the Indenture pursuant
to which such Note and Global Security are issued
and (iii) upon authentication and delivery of such
Global Security, the aggregate principal amount of
all Notes issued under the Indentures will not
exceed $4,000,000,000 or the equivalent thereof in
one or more foreign currencies or currency units
(except for Securities authenticated and delivered
upon registration of transfer of, in exchange for,
or in lieu of, Securities pursuant to Section 304,
305, 306, 906, 1107 or (in the case of Senior
Notes) 1503 or (in the case of Subordinated Notes)
1603 of the applicable Indenture).
C. The applicable Trustee will enter a pending
deposit message through DTC's Participant Terminal
System, providing the following settlement
information to DTC, the Agent, Standard & Poor's
Corporation, the Exchange Rate Agent and the
Calculation Agent:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
A-11
3. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related DTC record date
(which, in the case of Floating Rate Notes
which re-set daily or weekly, shall be the
date five calendar days immediately
preceding the applicable Interest Payment
Date and in the case of all other Notes
shall be the Regular Record Date as defined
in the Note) and amount of interest payable
on such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Security
representing such Note.
6. Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time).
D. The Company will deliver to the applicable Trustee
a pre-printed or pre-typed packet for the Global
Security representing such Note, which packet will
contain the following documents in forms that have
been approved by the Company, the Agents and the
Trustees:
1. Note with customer information.
2. Copy One - For Trustee.
3. Copy Two - For Agent.
4. Copy Three - For the Company.
5. Copy Four - For the Exchange Rate Agent.
6. Copy Five - For the Calculation Agent.
E. The applicable Trustee will complete such Note,
stamp the appropriate legend (if such legend is
not printed or typed on such Note) and
authenticate the Global Security representing such
Note.
F. DTC will credit such Note to the applicable
Trustee's participant account at DTC.
A-12
G. The applicable Trustee will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to such
Trustee's participant account and credit such Note
to the Agent's participant account and (ii) debit
the Agent's settlement account and credit such
Trustee's settlement account for an amount equal
to the price of such Note less the Agent's
commission. The entry of such a deliver order
shall constitute a representation and warranty by
such Trustee to DTC that (i) the Global Security
representing such Book-Entry Note has been issued
and authenticated and (ii) the Trustee is holding
such Global Security pursuant to the Medium-Term
Note Certificate Agreement between the Trustee and
DTC.
H. The Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
(i) to debit such Note to the Agent's participant
account and credit such Note to the participant
accounts of the participants with respect to such
Note and (ii) to debit the settlement accounts of
such participants and credit the settlement
account of the Agent for an amount equal to the
price of such Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and
"H" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
J. The applicable Trustee will wire transfer to the
account of the Company funds available for
immediate use in the amount transferred to such
Trustee in accordance with Settlement Procedure
"G".
K. The applicable Trustee will send Copy Three to the
Company, Copy Four to the Exchange Rate Agent and
Copy Five to the Calculation Agent, in each case
by first-class mail. Upon written request, the
applicable Trustee will deliver Copy Two to the
Agent. Monthly, such Trustee will send to the
Company a statement setting forth the principal
amount of Notes Outstanding as of that date under
the Indenture relating to the Notes for which it
serves as Trustee and setting forth a brief
description of any sales of which the Company has
advised such Trustee but which have not yet been
settled.
A-13
L. The Agent will confirm the purchase of such Note
to the purchaser either by transmitting to the
participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
Settlement Procedures For orders of Book-Entry Notes solicited by the Agent,
Timetable: as agent, and accepted by the Company for settlement on
the first Business Day after the sale date, Settlement
Procedures "A" through "L" set forth above shall be
completed as soon as possible but not later than the
respective times (New York City time) set forth below:
Settlement Procedure Time
-------------------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
Settlement Procedure Time
-------------------- ----
D 3:00 P.M. on day before settlement date
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
X-X 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B" and
"C" shall be completed as soon as practicable but no
later than 11:00 A.M., 12 Noon and 2:00 P.M., as the
case may be, on the first Business Day after the sale
date. If the initial interest rate for a Floating Rate
Book-Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 12 Noon
and 2:00 P.M., respectively, on the second Business Day
before the settlement date. Settlement Procedure "I" is
subject to extension in accordance with any extension of
Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note is rescheduled or
cancelled, the applicable Trustee will deliver to DTC,
through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
2:00 P.M. on the Business Day immediately preceding the
scheduled settlement date.
A-14
Failure to Settle If the applicable Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant to
Settlement Procedure "G", such Trustee may deliver to
DTC, through DTC's Participant Terminal System, as soon
as practicable a withdrawal message instructing DTC to
debit such Note to such Trustee's participant account.
DTC will process the withdrawal message, provided that
such Trustee's participant account contains a principal
amount of the Global Security representing such Note
that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by a
Global Security, such Trustee will mark such Global
Security "cancelled", make appropriate entries in the
Trustee's records and send such cancelled Global
Security to the Company. The CUSIP number assigned to
such Global Security shall, in accordance with CUSIP
Service Bureau procedures, be cancelled and not
immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Security,
such Trustee will exchange such Global Security for two
Global Securities, one of which shall represent such
Book-Entry Note or Notes and shall be cancelled
immediately after issuance and the other of which shall
represent the remaining Book-Entry Notes previously
represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note is not
timely paid to the participants with respect to such
Note by the beneficial purchaser thereof (or a Person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such participants and, in
turn, the Agent for such Note may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures "H" and "G", respectively. Thereafter, the
Trustee will deliver the withdrawal message and take the
related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the
Book-Entry Notes to have been represented by a Global
Security, the applicable Trustee will provide, in
accordance with Settlement Procedures "D" and "E", for
the authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
A-15
Procedure for Rate Changes: When the Company has determined to change Rate
Changes: the interest rates of Notes being
offered, it will promptly advise the Agent and the
Agent will forthwith suspend solicitation of
offers. The Agent will telephone the Company with
recommendations as to the changed interest rates.
At such time as the Company has advised the Agent
of the new interest rates, the Agent may resume
solicitation of offers. Until such time only
"indications of interest" may be recorded. Within
two Business Days after any sale of Notes, the
Company will file with the Securities and Exchange
Commission a pricing supplement to the prospectus
and prospectus supplement relating to such Notes
that reflects the applicable interest rates and
other terms and will deliver copies of such
pricing supplement to the Agent in accordance with
the terms of the Distribution Agreement by 11:00
a.m. on the Business Day preceding the settlement
date.
Suspension of Solicitation; Subject to the Company's representations,
Amendment or Supplement: warranties and covenants contained in the
Amendment or Distribution Agreement, the Company
may instruct the Agent to suspend solicitation of
purchases of Book-Entry Notes at any time. Upon
receipt of such instructions, the Agent will
forthwith suspend such solicitations until such
time as it has been advised by the Company that
such solicitations may be resumed. The Company
will, consistent with its obligations under the
Distribution Agreement, promptly advise the Agent
and the Trustee whether orders outstanding at the
time the Agent suspends solicitation may be
settled and whether copies of such prospectus and
prospectus supplement as in effect at the time of
the suspension, together with the appropriate
pricing supplement, may be delivered in connection
with the settlement of such orders. The Company
will have the sole responsibility for such
decision and for any arrangements that may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
prospectus, prospectus supplement and pricing
supplement may not be so delivered.
Delivery of Prospectus: A copy of the prospectus and prospectus supplement
relating to the Notes and a pricing supplement
relating to a Book-Entry Note must accompany or
precede the earliest of any written offer of such
Note, confirmation of the purchase of such Note or
payment for such Note by its purchaser. If notice
of a change in the terms of the Book-Entry Notes
is received by the Agent between the time an order
for a Book-Entry Note is placed and the time
written confirmation thereof is sent by the Agent
to a customer or his agent, such confirmation
shall be accompanied by a prospectus, prospectus
supplement and pricing supplement setting forth
the terms in effect when the order was placed.
Subject to the preceding paragraph, the Agent will
deliver a prospectus,
A-16
prospectus supplement and pricing supplement as herein
described with respect to each Book-Entry Note sold by
it.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the applicable
Trustee. Each Certificated Note will bear an Original
Issue Date, which will be (i) with respect to an
original Certificated Note (or any portion thereof),
its original issuance date (which will be the
settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost or
stolen Certificated Note, the Original Issue Date of
the predecessor Certificated Note, regardless of the
date of authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and Exchanges: A Certificated Note may be presented for transfer or
exchange at the office of the applicable Trustee.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms (including
rank) but different denominations without service
charge. Certificated Notes will not be exchangeable
for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date not less
than nine months or more than 30 years from the
settlement date for such Note, as selected by the
purchaser and approved by the Company.
Price to Public: Each Note will be issued at 100% of its principal
amount, unless otherwise mutually agreed upon by the
purchaser and the Company and specified in the
applicable pricing supplement.
Denominations: Certificated Notes denominated in U.S. dollars will be
issued in denominations of $1,000 or any amount in
excess thereof that is an integral multiple of $1,000.
The authorized denominations of Notes denominated in a
currency other than U.S. dollars will be specified
pursuant to "Settlement Procedures", below, and set
forth in such Notes and the applicable pricing
supplement.
Interest: General. Interest, if any, on each Certificated Note
-------
will accrue from the Original Issue Date of such Note
for the first interest period and from the most recent
Interest Payment Date to which interest has been paid
for all subsequent interest periods. Each payment of
interest on a Certificated Note will include interest
accrued to but excluding the related Interest Payment
Date
A-17
(provided that in the case of Floating Rate Notes
which reset daily or weekly, interest payments will
include interest accrued to and including the Regular
Record Date immediately preceding the related Interest
Payment Date) or Maturity (other than a Maturity of a
Fixed Rate Certificated Note occurring on the thirty-
first day of a month, in which case such payment will
include interest accruing to but excluding the
thirtieth day of such month).
Regular Record Dates. The Regular Record Date with
--------------------
respect to any Interest Payment Date shall be the date
fifteen calendar days immediately preceding such
Interest Payment Date whether or not such date shall
be a Business Day.
Fixed Rate Certificated Notes. Unless otherwise
-----------------------------
specified pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Certificated Notes
will be made semi-annually on March 1 and September 1
of each year and at Maturity; provided, however, that
-------- -------
in the case of a Fixed Rate Certificated Note issued
between a Regular Record Date and an Interest Payment
Date or on an Interest Payment Date, the first
interest payment will be made on the Interest Payment
Date following the next succeeding Regular Record
Date.
Floating Rate Certificated Notes. Interest payments
--------------------------------
will be made on Floating Rate Certificated Notes
monthly, quarterly, semi-annually or annually.
Interest will be payable, in the case of Floating Rate
Certificated Notes with a monthly Interest Payment
Period, on the third Wednesday of each month; with a
quarterly Interest Payment Period, on the third
Wednesday of March, June, September and December of
each year; with a semi-annual Interest Payment Period,
on the third Wednesday of the two months specified
pursuant to Settlement Procedure "A" below; and with
an annual Interest Payment Period, on the third
Wednesday of the month specified pursuant to
Settlement Procedure "A" below; provided, however,
-------- -------
that if an Interest Payment Date for Floating Rate
Certificated Notes would otherwise be a day that is
not a Business Day with respect to such Floating Rate
Certificated Notes, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Certificated Notes, except in the case
of a LIBOR Note if such Business Day is in the next
succeeding calendar month, in which event such
Interest Payment Date will be the immediately
preceding Business Day; and provided, further, that in
-------- -------
the case of a Floating Rate Certificated Note issued
between a Regular Record Date and an Interest Payment
Date or on an Interest Payment Date, the first
interest payment will be made on the Interest Payment
Date following the next succeeding Regular Record
Date.
A-18
Calculation of Interest Fixed Rate Certificated Notes. Interest on Fixed Rate
-----------------------------
Certificated Notes (including interest for partial
periods) will be calculated on the basis of a year of
twelve thirty-day months. (Examples of interest
calculations are as follows: September 1, 1997 to
March 1, 1998, equals 6 months and 0 days or 180 days;
the interest payable equals 180/360 times the annual
rate of interest times the principal amount of the
Note. The period from September 3, 1997 to February 1,
1998 equals 4 months and 28 days, or 148 days; the
interest payable equals 148/360 times the annual rate
of interest times principal amount of the Note.)
Floating Rate Certificated Notes. Interest rates on
--------------------------------
Floating Rate Certificated Notes will be determined as
set forth in the form of Notes. The Company and the
Trustees will confirm the amount of the initial
interest payment due on any Floating Rate Certificated
Note for which the initial Interest Period is shorter
or longer than the Index Maturity. Interest on
Floating Rate Certificated Notes will be calculated on
the basis of actual days elapsed and a year of 360
days except that in the case of Treasury Rate Notes,
interest will be calculated on the basis of the actual
number of days in the year.
Payments of Principal The applicable Trustee, in its capacity as paying
and Interest: agent, will pay the principal amount of each
Certificated Note at Maturity upon presentation of
such Note to such Trustee. Such payment, together with
payment of interest due at Maturity of such Note, will
be made in funds available for immediate use by such
Trustee and in turn by the Holder of such Note.
Certificated Notes presented to the applicable Trustee
at Maturity for payment will be cancelled and
delivered to the Company with a certificate with
respect to such cancellation. All interest payments on
a Certificated Note (other than interest due at
Maturity) will be made by check drawn on the
applicable Trustee (or another Person appointed by
such Trustee) and mailed by the applicable Trustee to
the Person entitled thereto as provided in such Note
and the Indenture governing such Note. The Company may
at its option elect to make payments in U.S. dollars
of interest on Notes (other than interest payable at
Maturity) by wire transfer of immediately available
funds, but only if appropriate payment instructions
have been received in writing by the applicable
Trustee not less than fifteen calendar days prior to
the related Interest Payment Date. Following each
Regular Record Date and Special Record Date, each
Trustee will furnish the Company with a list of
interest payments to be made on the following Interest
Payment Date for each Certificated Note for which such
Person serves as Trustee and in total for all such
Certificated Notes. Interest at Maturity will be
payable to the Person to whom the payment of principal
is payable.
A-19
Each Trustee will provide monthly to the Company lists
of principal and interest to be paid on Certificated
Notes for which such Person serves as Trustee maturing
in the next month. Each Trustee will be responsible
for withholding taxes on interest paid on Certificated
Notes for which such Person serves as Trustee as
required by applicable law.
If any Interest Payment Date for or the Maturity of a
Certificated Note is not a Business Day, the payment
due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Interest
Payment Date or Maturity, as the case may be.
Acceptance and Rejection Unless otherwise instructed by the Company, the Agent
of Offers: will advise the Company promptly by telephone of all
offers to purchase Certificated Notes received by the
Agent, other than those rejected by it in whole or in
part in the reasonable exercise of its discretion.
Unless otherwise agreed by the Company and the Agent,
the Company has the sole right to accept offers to
purchase Certificated Notes and may reject any such
offer in whole or in part.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the Agent and the Agent's delivery
of such Note against receipt of immediately available
funds shall, with respect to such Note, constitute
"settlement". All orders accepted by the Company will
be settled not later than the close of business on the
third (or the fourth if accepted after 4:30 p.m. New
York City time) Business Day succeeding the date of
acceptance, unless the Company and the purchaser agree
to settlement on a later date; provided, however, that
-------- -------
in the case of a delayed settlement the Company will
notify the Trustee under the Indenture governing such
Note at least twenty-four hours prior to the time of
settlement.
Settlement Procedures: Settlement Procedures with regard to each Certificated
Note sold by the Company through the Agent, as agent,
shall be as follows:
A. The Agent will advise the Company by telephone of
the following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the Registered
Owner (if
A-20
available).
4. Principal amount.
5. Stated Maturity and New Maturity Date(s), if any,
and Notice of Renewal Date(s), if any.
6. In the case of a Fixed Rate Certificated Note, the
Interest Rate and, in the case of a Floating Rate
Certificated Note, the Initial Interest Rate (if
known at such time), Base Rate, Index Maturity,
Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum Interest Rate
(if any).
7. Interest Payment Period and Interest Payment
Dates.
8. Rank.
9. Specified Currency and whether the option to elect
payment in a Specified Currency applies and if the
Specified Currency is not U.S. dollars, the
authorized denominations.
10. Redemption provisions, if any.
11. Repayment provisions, if any.
12. Settlement date.
13. Price (including currency).
14. Agent's commission or discount, if applicable.
15. Whether the Note is an Original Issue Discount
Note.
16. Net proceeds to the Company.
17. Whether the Agent is acting as agent or as
principal.
18. Such other information specified with respect to
such Note.
A-21
B. The Company will advise the applicable Trustee,
the Exchange Rate Agent and the Calculation Agent
by telephone or electronic transmission (confirmed
in writing at any time on the sale date) of the
information set forth in Settlement Procedure "A"
above, the name of such Agent and if such Note is
an Original Issue Discount Note, the total amount
of OID, the yield to maturity, the Initial Accrual
Period and the method used. Each such
communication by the Company shall constitute a
representation and warranty by the Company to the
Trustee and the Agent that (i) such Note is then,
and at the time of issuance and sale thereof will
be, duly authorized for issuance and sale by the
Company, (ii) such Note will conform with the
terms of the Indenture pursuant to which such Note
is issued and (iii) upon authentication and
delivery of such Note, the aggregate principal
amount of all Notes issued under the Indentures
will not exceed $4,000,000,000 or the equivalent
thereof in foreign currencies or currency units
(except for securities authenticated and delivered
upon registration of transfer, in exchange for or
in lieu of, securities pursuant to Section 304,
305, 306, 906, 1107 or (in the case of Senior
Notes) 1503 or (in the case of Subordinated Notes)
1603 of the applicable Indenture).
C. The Company will deliver to the applicable Trustee
a pre-printed five-ply packet for such Note, which
packet will contain the following documents in
forms that have been approved by the Company, the
Agents and the Trustees:
1. Note with customer confirmation.
2. Stub One - For Trustee.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
D. The applicable Trustee will complete such Note and
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to such Agent,
and such Agent will acknowledge receipt of the
Note by stamping or otherwise marking Stub One and
returning it to the applicable Trustee. Such
delivery will be made only against such
acknowledgement of receipt and evidence that
instructions have been given by the Agent for
payment to the account of the Company in funds
available for
A-22
immediate use, of an amount equal to the price of
such Note less the Agent's commission. In the
event that the instructions given by the Agent for
payment to the account of the Company are revoked,
the Company will as promptly as possible (and in
any event not later than the Business Day
following the Settlement Date) wire transfer to
the account of such Agent an amount of immediately
available funds equal to the amount of such
payment made.
E. The Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately payable funds. The Agent will obtain
the acknowledgement of receipt of such Note by
retaining Stub Two.
F. The applicable Trustee will send Stub Three to the
Company by first-class mail. Such Trustee will
also send a copy of the front of such Note to the
Exchange Rate Agent and the Calculation Agent.
Periodically, each Trustee will also send to the
Company a statement setting forth the principal
amount of the Notes Outstanding as of that date
under the Indenture relating to the Notes for
which it serves as Trustee and setting forth a
brief description of any sales of which the
Company has advised such Trustee but which have
not yet been settled.
Settlement Procedures For offers of Certificated Notes solicited by an
Timetable: Agent, as agent, and accepted by the Company,
Settlement Procedures "A" through "F" set forth above
shall be completed on or before the respective times
(New York City time) set forth below:
Settlement Procedure Time
-------------------- ----
A 3:00 P.M. on day before settlement date
B 5:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the Agent will
notify the Company and the applicable Trustee by
telephone and return such Note to the applicable
Trustee. Upon receipt of the Note, the Company will
immediately wire transfer to the account of the Agent
an amount equal to the amount previously credited
thereto in respect of such Note. Such wire transfer
will be made on the settlement date, if possible, and
in any event not later than the day following the
settlement date. If the failure shall have occurred
for any reason
A-23
other than a default by the Agent in the
performance of its obligations hereunder and under
the Distribution Agreement, then the Company will
reimburse the Agent or the applicable Trustee, as
appropriate, on an equitable basis for its loss of
the use of the funds during the period when they
were credited to the account of the Company.
Immediately upon receipt of the Certificated Note
in respect of which such failure occurred, the
applicable Trustee will mark such Note
"cancelled", make appropriate entries in its
records and send such Note to the Company.
Procedure for Rate Changes: When the Company has determined to change the
interest rates of Notes being offered, it will
promptly advise the Agent and the Agent will
forthwith suspend solicitation of offers. The
Agent will telephone the Company with
recommendations as to the changed interest rates.
At such time as the Company has advised the Agent
of the new interest rates, the Agent may resume
solicitation of offers. Until such time only
"indications of interest" may be recorded. Within
two business days after any sale of Notes, the
Company will file with the Securities and Exchange
Commission a pricing supplement to the prospectus
and prospectus supplement relating to such Notes
that reflects the applicable interest rates and
other terms and will deliver copies of such
pricing supplement to the Agent in accordance with
the terms of the Distribution Agreement.
Suspension of Solicitation; Subject to the Company's representations,
Amendment or Supplement: warranties and covenants contained in the
Distribution Agreement, the Company may instruct
the Agent to suspend solicitation of purchases of
Certificated Notes at any time. Upon receipt of
such instructions, the Agent will forthwith
suspend such solicitations until such time as it
has been advised by the Company that such
solicitations may be resumed. The Company will,
consistent with its obligations under the
Distribution Agreement, promptly advise the Agent
and the Trustees whether orders outstanding at the
time the Agent suspends solicitation may be
settled and whether copies of such prospectus and
prospectus supplement as in effect at the time of
the suspension, together with the appropriate
pricing supplement, may be delivered in connection
with the settlement of such orders. The Company
will have the sole responsibility for such
decision and for any arrangements that may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
prospectus, prospectus supplement and pricing
supplement may not be so delivered.
Delivery of Prospectus: A copy of the prospectus and prospectus supplement
relating to the Notes and a pricing supplement
relating to a Certificated Note must accompany or
precede the earlier of any written offer of such
A-24
Note, delivery of such Note, confirmation of the
purchase of such Note and payment for such Note by
its purchaser. If notice of a change in the terms
of the Certificated Notes is received by the Agent
between the time an order for a Certificated Note
is placed and the time written confirmation
thereof is sent by the Agent to a customer or his
agent, such confirmation shall be accompanied by a
prospectus, prospectus supplement and pricing
supplement setting forth the terms in effect when
the order was placed. Subject to the preceding
paragraph, the Agent will deliver a prospectus,
prospectus supplement and pricing supplement as
herein described with respect to each Note sold by
it.
A-25
EXHIBIT B
TRANSAMERICA FINANCE CORPORATION
Medium-Term Notes, Series __
Due Nine Months or More from Date of Issue
TERMS AGREEMENT
_________, ____
Transamerica Finance Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention:
Re: Distribution Agreement dated December ___, 1998
Subject to the terms and conditions of the Distribution Agreement
dated December ___, 1998, the undersigned agrees to purchase the following
principal amount of Notes:
________________________________________
Principal Amount
Senior: Subordinated:
Fixed Rate Note: Floating Rate Note:
Interest Rate or Formula:
Maturity Date:
Renewable:
New Maturity Date:
Interest Payment Dates:
Specified Currency:
Redemption and Repayment Provisions:
Public Offering Price:
Discount: % of Principal Amount
Purchase Date and Time:
B-1
Place for Delivery of Notes and Payment
Therefor:
Method of Payment:
[The opinions referred to in Section 5(b)(i) and in Section 5(b)(ii)
of the Distribution Agreement, the certificate referred to in Section 5(b)(iii)
of the Distribution Agreement, and the accountants' letter referred to in
Section 5(b)(iv) of the Distribution Agreement will be required.]
[The provision of Section 3(h) of the Distribution Agreement will
apply.]
[The provision of Section 7(b)(iii) of the Distribution Agreement will
apply.]
[The provision of Section 7(b)(iv) of the Distribution Agreement will
apply.]
All capitalized terms shall have the meaning ascribed to them in the
Distribution Agreement unless defined herein.
[Purchaser]
By__________________________________
Title:
Accepted:
Transamerica Finance Corporation
By_______________________________
Title:
By_______________________________
Title:
B-2
EXHIBIT C
FORM OF OPINION OF
XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP
The opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, to be delivered
pursuant to Section 3(l), 4(b) or 5(b) of the Distribution Agreement, shall be
to the effect set forth below. All references to the "Registration Statement"
shall be to the Registration Statement as amended as of the date of such opinion
and all references to the "Prospectus" shall be to the Prospectus, as amended
and supplemented as of the date of such opinion.
(i) the Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its
business as set forth in the Prospectus;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) the Senior Indenture and the Subordinated Indenture
(collectively, the "Indentures") have each been duly and validly
authorized, executed and delivered by the Company and each of the
Indentures constitutes the valid and binding agreement of the Company,
enforceable in accordance with its respective terms;
(iv) the Notes have been duly and validly authorized by all
necessary corporate action for issuance and sale pursuant to this
Agreement, except for the determination of the interest rate or formula,
redemption date(s) and price(s), repayment date(s) and price(s), currency,
denominations, interest payment dates, maturity and other terms to be set
forth on the face of each Note, and, when such determination has been made
and the Notes have been completed, executed and authenticated as specified
in the applicable Indenture and delivered pursuant to the provisions of
this Agreement, the Notes will be valid and binding obligations of the
Company, enforceable in accordance with their terms, and will be entitled
to the benefits provided by the applicable Indenture;
(v) the Indentures are qualified under the Trust Indenture
Act;
(vi) the terms and provisions of the Notes conform in all
material respects to the description thereof contained in the Prospectus
and the information in the Prospectus under the captions "Description of
Debt Securities", "Description of Notes" and "Certain United States
Federal Income Tax Consequences" to the extent that it constitutes matters
of law and legal conclusions and to the extent it summarizes the documents
referred to therein, has been reviewed by us and is correct in all
material respects;
(vii) the execution and delivery of this Agreement, the
Indentures and the Notes, the incurrence of the obligations therein set
forth and the consummation of the transactions therein contemplated will
not conflict with, result in a breach of any of the terms, conditions or
provisions of, or constitute, with or without the giving of notice or
C-1
lapse of time or both, a default under the Certificate of Incorporation or
Bylaws of the Company;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Company
of the transactions contemplated by this Agreement, the Indentures and the
Notes, except such as have been obtained under the Act and such as may be
required under state securities or Blue Sky laws in connection with the
distribution of the Notes by the Agent, and except those which, if not made
or obtained, will not, in the aggregate, have an adverse effect on the
transactions contemplated by this Agreement or on the financial condition
of the Company and its subsidiaries, taken as a whole;
(ix) the Registration Statement is effective under the Act and, to
the best of such counsel's knowledge, no proceedings for a stop order have
been instituted or are pending or threatened under Section 8(d) of the Act
and any required filing of the Prospectus pursuant to Rule 424(b) has been
made in accordance therewith;
(x) the Registration Statement and the Prospectus (except the
financial statements and schedules and other financial and statistical data
included therein and the Statement of Eligibility and Qualification of the
Trustees on Form T-1 (the "Forms T-1"), as to which no opinion need be
rendered), as of their respective effective or issue dates, complied as to
form in all material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder; and
(xi) each document incorporated by reference in the Prospectus
(except the financial statements and schedules and other financial and
statistical data included therein, as to which no opinion need be rendered)
complied when it was filed as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
In addition, the opinion shall state that such counsel has participated
in conferences with representatives of the underwriters and representatives of
the Company and its accountants concerning the Registration Statement and the
Prospectus and have considered the matters required to be stated therein and the
statements contained therein, although such counsel has not independently
verified the accuracy, completeness or fairness of such statements (except as
specified herein). Based upon and subject to the foregoing, nothing has come to
their attention that would lead them to believe (A) that the Registration
Statement, or any amendment thereof (including the documents incorporated by
reference therein), at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or (B)
that the Prospectus (including the documents incorporated by reference therein)
as of the Closing Date, 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 (it being understood that as to both clauses A and B above such
counsel expresses no belief or opinion with respect to the accuracy,
completeness or fairness of the financial statements and schedules and other
financial and statistical data included or incorporated by reference therein or
with respect to the Forms T-1).
C-2
In addition, such opinion shall also cover, if applicable to a
particular issue of Notes, matters relating to listing on the New York Stock
Exchange and such other matters as the Agent may reasonably require.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
California or the United States, to the extent such counsel shall deem proper
and specify in such opinion, upon the opinion of other counsel of good standing
whom such counsel believes to be reliable and who are satisfactory to counsel
for the Agent; and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and public
officials.
In so far as the foregoing relates to the enforceability of any
instrument, such opinion is qualified as to:
(a) limitations imposed by bankruptcy, insolvency, reorganization,
arrangement, fraudulent conveyance, moratorium or other laws relating to or
affecting the rights of creditors generally;
(b) rights to indemnification and contribution which may be limited by
applicable law or equitable principles; and
(c) general principles of equity, including without limitation
concepts of materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or at law.
C-3
EXHIBIT D
FORM OF OPINION OF
XXXXXX X. XXX
VICE PRESIDENT GENERAL COUNSEL AND SECRETARY
OF
TRANSAMERICA FINANCE CORPORATION
The opinion of Xxxxxx X. Xxx Vice President General Counsel and
Secretary of Transamerica Finance Corporation, to be delivered pursuant to
Section 3(l), 4(b) or 5(b) of the Distribution Agreement shall be to the effect
set forth below. All references to the "Registration Statement" shall be to the
Registration Statement as amended as of the date of such opinion and all
references to the "Prospectus" shall be to the Prospectus, as amended and
supplemented as of the date of such opinion:
(i) each of the Company and its Significant Subsidiaries, as such term is
defined in Rule 405 of the Securities Act of 1933, as amended (a list of
the Significant Subsidiaries is attached as Schedule A hereto), is a
corporation duly organized and validly existing in good standing under the
laws of its jurisdiction of incorporation, with corporate and other power
and authority to own its properties and conduct its business as set forth
in the Prospectus;
(ii) all of the issued and outstanding shares of capital stock of each
Significant Subsidiaries of the Company have been duly authorized and
validly issued and are fully paid and nonassessable;
(iii) all of the issued and outstanding shares of capital stock of each
Significant Subsidiary of the Company are owned, directly or indirectly,
by the Company free and clear of any claim, lien, encumbrance or security
interest;
(iv) each of the Company and its Significant Subsidiaries (A) is duly licensed
and duly qualified as a foreign corporation in good standing in all the
jurisdictions in which the character of the property owned or leased or
the nature of the business conducted by it requires such licensing or
qualification except where the failure to do so will not have a material
adverse effect on the Company and its subsidiaries taken as a whole and
(B) holds all material approvals, authorizations, orders, licenses,
certificates and permits from governmental authorities necessary for the
conduct of its business as described in the Prospectus;
(v) the execution and delivery of this Agreement, the Indentures and the
Notes, the incurrence of the obligations therein set forth and the
consummation of the transactions therein contemplated will not conflict
with, result in a breach of any of the terms, conditions or provisions of,
or constitute, with or without the giving of notice or lapse of time or
both, a default under, the Certificate of Incorporation or Bylaws of the
Company, the articles of incorporation or bylaws of any of its
subsidiaries, or any material bond, debenture, note, contract, indenture,
mortgage, loan agreement, lease or other evidence of indebtedness,
agreement or instrument known to such counsel and to which the Company or
any of its subsidiaries is a party or by which any of them or any of their
properties may
D-1
be bound, or result in the material violation by the Company or any of its
Significant Subsidiaries of any law, order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties;
(vi) such counsel does not know of any pending or threatened action, suit or
proceeding before or by any court or government agency, authority or body,
domestic or foreign, involving the Company or any of its Significant
Subsidiaries, that is required to be disclosed in the Prospectus that is
not adequately disclosed in the Prospectus or of any contract or other
document that is required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement
that is not described or filed as required; and
(vii) nothing has come to such counsel's attention that would lead such counsel
to believe that the Registration Statement (except the financial
statements and schedules and other financial and statistical data included
therein and the Statements of Eligibility of the Trustees on Form T-1 (the
"Forms T-1"), as to which such counsel expresses no opinion), or any
amendment thereof, at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus (except the financial statements and
schedules and other financial and statistical data included therein, as to
which such counsel expresses no opinion) at the date of this Agreement or
as of the date of such opinion 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, in the light of the
circumstances under which they were made, not misleading.
With your permission such counsel has assumed the following: (a) the
authenticity of original documents and genuineness of all signatures; (b) the
conformity to the originals of all documents submitted to us as copies; (c)
except with respect to the contents of the Registration Statement and
Prospectus, the truth, accuracy and completeness of the information, factual
matters, representations and warranties contained in the records, documents,
instruments and certificates such counsel has reviewed; (d) that, except as
specifically covered in the opinions set forth above, the documents referred to
herein were duly authorized, executed and delivered on behalf of the respective
parties thereto and that such documents are legal, valid and binding obligations
of such parties; and (e) the absence of any evidence extrinsic to the provisions
of the written agreements between the parties that the parties intended a
meaning contrary to that expressed by those provisions.
Such counsel expresses no opinion as to laws other than laws of the
State of California, the federal law of the United States of America and the
general corporate law of the State of Delaware. As you know, such counsel is
not licensed to practice law in the State of Delaware, and such counsel's
opinions herein as to such law are based solely on such counsel's review of
standard compilations of the laws of Delaware.
D-2
EXHIBIT E
FORM OF OPINION OF
COUNSEL TO [ADDRESSEE]
The opinion of counsel for [Addressee], to be delivered pursuant to
Section 4(c) or 5(b) of this Agreement, shall be to the effect set forth below.
All references to the "Registration Statement" shall be to the Registration
Statement as amended as of the date of such opinion and all references to the
"Prospectus" shall be to the Prospectus, as amended and supplemented as of the
date of such opinion.
(i) the Company is a corporation validly existing and in good
standing under the laws of the State of Delaware;
(ii) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company and this
Agreement has been duly executed and delivered by the Company;
(iii) the execution and delivery of the Indentures have been duly
authorized by all necessary corporate action of the Company and the
Indentures have been duly executed and delivered by the Company and
qualified under the Trust Indenture Act; and
(iv) the execution and delivery of the Notes have been duly
authorized by all necessary corporate action of the Company.
They have participated in conferences and telephone conversations with
representatives of the Company, representatives of counsel for the Company and
representatives of [Addressee], during which conferences and conversations the
contents of the Registration Statement and the Prospectus, portions of certain
of the documents incorporated by reference therein and related matters were
discussed, and they reviewed certain corporate records and documents furnished
to them by the Company and based on their participation in such conferences and
conversations and their review of such records and documents as described above,
their understanding of the U.S. federal securities laws and the experience they
have gained in their practice thereunder, they advise that no information has
come to their attention that causes them to believe that the Registration
Statement, including the documents incorporated by reference therein (except the
financial statements and schedules and other financial and statistical data
included therein, as to which they express no view), at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading and no information has come to their attention
that causes them to believe that the Prospectus, including the documents
incorporated by reference therein (except the financial statements and schedules
and other financial and statistical data included therein, as to which they
express no view), as of the date thereof or hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In addition, such opinion shall also cover such other matters as
[Addressee] may reasonably require.
E-1
Such counsel expresses no opinion as to the laws other than laws of
the State of New York, the federal laws of the United States of America and the
General Corporation Law of the State of Delaware.
E-2
EXHIBIT F
FORM OF LETTER OF
INDEPENDENT ACCOUNTANTS TO THE COMPANY
The letter of the independent accountants to the Company to be
delivered pursuant to Section 3(m), 4(e) or 5(b) of this Agreement shall confirm
that they are independent accountants within the meaning of the Act and the 1934
Act and the related published rules and regulations thereunder and shall be to
the effect set forth below. All references to the "Registration Statement"
shall be to the Registration Statement as amended as of the date of such letter
and all references to the "Prospectus" shall be to the Prospectus, as amended
and supplemented as of the date of such letter.
(i) in their opinion the consolidated financial statements and
schedules included or incorporated by reference in the Registration
Statement and the Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting requirements of the
Act and the 1934 Act and the related published rules and regulations
thereunder;
(ii) on the basis of a reading of the unaudited financial statements,
if any, included or incorporated by reference in the Prospectus or used as
a basis for the summary consolidated financial data included in the
Prospectus and of the latest unaudited financial statements made available
by the Company and its subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and
Executive Committee of the Company; and inquiries of certain officials of
the Company who have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events subsequent
to the date of the most recent audited balance sheet of the Company and its
consolidated subsidiaries, nothing came to their attention which caused
them to believe that:
(1) the unaudited financial statements included in the Company's
quarterly reports on Form 10-Q incorporated by reference in the
Prospectus, if any, do not comply in form in all material respects
with the applicable accounting requirements of the 1934 Act and the
published rules and regulations thereunder or are not presented in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements incorporated by reference in the Prospectus; or
(2) the amounts in the unaudited summary financial information,
if any, included in the Prospectus do not agree with the corresponding
amounts in the financial statements from which such amounts were
derived or were not determined on a basis substantially consistent
with that of the audited financial statements included or incorporated
in the Prospectus; or
F-1
(3) as of a date within five days of the date of such letter
there was any change in excess of 5% in the capital stock or long-term
debt of the Company and its consolidated subsidiaries or any decrease
in consolidated net assets as compared with the amounts shown on the
latest balance sheet of the Company and its consolidated subsidiaries
included or incorporated by reference in the Prospectus; or for the
period from the date of such balance sheet to a date within five days
of the date of such letter there was any decrease, as compared with
the corresponding period in the preceding year, in net income of the
Company and its consolidated subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary
by [Addressee];
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company) set forth in the Registration Statement or Prospectus agrees
with the accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation; and
(iv) if pro forma financial statements are included or incorporated
in the Registration Statement and the Prospectus, on the basis of a reading
of the unaudited pro forma financial statements, carrying out certain
specified procedures, inquiries of certain officials of the company and the
acquired company who have responsibility for financial accounting matters,
and proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to believe
that the pro forma financial statements do not comply in form in all
material respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such statements.
In addition, such letter shall cover such other matters as may be
mutually agreed upon by the Company and [Addressee].
F-2
