<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TRANSAMERICA FINANCE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 95-1077235
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
600 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 983-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
AUSTIN D. KIM
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
TRANSAMERICA FINANCE CORPORATION
600 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 983-4000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
M. PETER LILLEVAND, ESQ. PETER H. DARROW, ESQ.
ORRICK HERRINGTON & SUTCLIFFE LLP CLEARY, GOTTLIEB, STEEN & HAMILTON
OLD FEDERAL RESERVE BANK BUILDING ONE LIBERTY PLAZA
400 SANSOME STREET NEW YORK, NEW YORK 10006
SAN FRANCISCO, CALIFORNIA 94111-3143
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please, check the
following box. [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
TITLE OF EACH PROPOSED
CLASS OF AMOUNT MAXIMUM OFFERING PROPOSED AMOUNT OF
SECURITIES TO TO BE PRICE PER SHARE MAXIMUM AGGREGATE REGISTRATION
BE REGISTERED REGISTERED(1) (2) OFFERING PRICE(1)(2) FEE
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<S> <C> <C> <C> <C>
Senior and
Subordinated
Debt
Securities
and Warrants
to
Purchase
Debt
Securities.. $4,000,000,000 100%(1) $4,000,000,000 $1,112,000
</TABLE>
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(1) Or, (i) if any Debt Securities are issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial
offering price equal to $4,000,000,000 United States dollars or (ii) if any
Debt Securities or Warrants are issued with a principal amount denominated
in a foreign currency or composite currency, such principal amount as shall
result in an aggregate initial offering price equivalent to $4,000,000,000
United States dollars at the time of initial offering.
(2)Exclusive of accrued interest, if any. These figures are estimates made
solely for the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY +
+NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN +
+OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE +
+SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED DECEMBER 16, 1998.
PROSPECTUS
TRANSAMERICA FINANCE CORPORATION
DEBT SECURITIES AND WARRANTS
We may from time to time sell up to $4,000,000,000 aggregate initial offering
price of our debt securities and warrants to purchase our debt securities. The
debt securities may consist of debentures, notes or other types of debt. We
will provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest.
-----------
These securities have not been approved by the Securities and Exchange
Commission or any state securities commission, nor have these organizations
determined that this prospectus is accurate or complete. Any representation to
the contrary is a criminal offense.
-----------
, 1998
<PAGE>
We have not authorized any dealer, salesman or other person to give any
information or to make any representation other than those contained or
incorporated by reference in this prospectus and the accompanying supplement to
this prospectus. You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or the accompanying
prospectus supplement as if we had authorized it. This prospectus and the
accompanying supplement to this prospectus do not constitute an offer to sell
or the solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor do this prospectus and the accompanying
supplement to this prospectus constitute an offer to sell or the solicitation
of an offer to buy securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. The
information contained in this prospectus and the supplement to this prospectus
is accurate as of the date on their covers. When we deliver this prospectus or
a supplement or make a sale pursuant to this prospectus, we are not implying
that the information is current as of the date of the delivery or sale. This
prospectus may not be used to consummate sales of debt securities or warrants
unless accompanied by a prospectus supplement.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More Information........................................ 2
Disclosure Regarding Forward-Looking Statements............................ 3
Transamerica Finance Corporation........................................... 3
Application of Proceeds.................................................... 3
Consolidated Ratio of Earnings to Fixed Charges............................ 3
Description of Debt Securities............................................. 4
Description of Warrants.................................................... 13
Plan of Distribution....................................................... 14
Legal Opinions............................................................. 15
Experts.................................................................... 15
</TABLE>
1
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. The Securities and
Exchange Commission is referred to in this prospectus and the accompanying
prospectus supplement as the "Commission." You may read and copy any document
we file at the Commission's public reference rooms in Washington, D.C., New
York, New York and Chicago, Illinois. Please call the Commission at 1-800-SEC-
0330 for further information on the public reference rooms. Our Commission
filings (file number 001-06798) are also available to the public at the
Commission's web site at http://www.sec.gov. You may also read any copy of
these documents at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
The Commission allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is considered to be part of this prospectus and later information that we file
with the Commission will automatically update or supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the Commission under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), until such time as all
of the securities covered by this prospectus have been sold:
(i) The Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 1997;
(ii) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998;
(iii) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998; and
(iv) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998.
You may request a copy of these filings, at no cost, by writing or telephoning
us as follows:
Transamerica Finance Corporation
600 Montgomery Street
San Francisco, CA 94111
Attn: Corporate Secretary
Phone: (415) 983-4000
You should not assume that the information in this prospectus and the
accompanying prospectus supplement (each a "Prospectus Supplement") is accurate
as of any date other than the date on the front of those documents regardless
of the time of delivery of this prospectus and the accompanying Prospectus
Supplement or any sale of the debt securities or warrants. Additional updating
information with respect to the matters discussed in this prospectus and the
accompanying Prospectus Supplement may be provided in the future by means of
appendices or supplements to this prospectus and the accompanying Prospectus
Supplement or other documents including those incorporated by reference.
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DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference,
contains forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the "Securities Act") and Section 21E of
the Exchange Act. Such statements relate to, among other things, capital
expenditures, cost reduction, cash flow and operating improvements and are
indicated by words or phrases such as "anticipate," "estimate," "plans,"
"projects," "continuing," "ongoing," "expects," "management believes," "the
Company believes," "the Company intends," "we believe," "we intend" and similar
words or phrases. The following factors are among the principal factors that
could cause actual results to differ materially from the forward-looking
statements: general business and economic conditions, including the rate of
inflation, employment and job growth in our markets; pricing pressures and
other competitive factors, which could include business strategies; results of
our programs to reduce costs; the ability to integrate any companies we acquire
and achieve operating improvements at those companies; issues arising from
addressing year 2000 information technology issues; opportunities or
acquisitions that we pursue; and the availability and terms of financing.
Consequently, actual events and results may vary significantly from those
included in or contemplated or implied by such statements.
TRANSAMERICA FINANCE CORPORATION
Transamerica Finance Corporation (the "Company") is a wholly owned subsidiary
of Transamerica Corporation ("Transamerica") and is principally engaged in
commercial lending and leasing operations.
Transamerica is a financial services organization which engages through its
subsidiaries in commercial lending, leasing, life insurance and real estate
services.
The executive offices of the Company are located at 600 Montgomery Street,
San Francisco, California 94111 (telephone: 415-983-4000).
Because the Company is a holding company, the rights of its creditors,
including the holders of the debt securities, to participate in the assets of
any subsidiary upon the latter's liquidation or reorganization will be subject
to the claims of the subsidiary's creditors, which will take priority except to
the extent that the Company may itself be a creditor with recognized claims
against the subsidiary.
APPLICATION OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
net proceeds from the sale of the Company's debt securities consisting of
senior debentures, notes, bonds and/or other evidences of indebtedness ("Senior
Securities") and/or subordinated debentures, notes, bonds and/or other
evidences of indebtedness ("Subordinated Securities"; the Senior Securities and
the Subordinated Securities being herein collectively referred to as "Debt
Securities") and warrants to purchase Debt Securities ("Warrants") offered
hereby and the exercise of Warrants will be used (1) to reduce short-term debt
incurred to provide funds for use in the ordinary course of the Company's
financing business, (2) to pay maturing long-term debt and (3) to provide funds
needed in the ordinary course of its financing business.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The consolidated ratios of earnings from continuous operations to fixed
charges were computed by dividing income from continuing operations before
fixed charges and income taxes and extraordinary loss on early extinguishment
of debt in 1993 by the fixed charges. Fixed charges consist of interest and
debt expense and one-third of rent expense, which approximates the interest
factor.
3
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<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------
1997 1996 1995 1994 1993
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<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges..................... 1.51 1.68 1.70 1.66 1.37
</TABLE>
For current information on the Consolidated Ratio of Earnings to Fixed
Charges, see our most recent reports on Form 10-K and Form 10-Q. See "Where You
Can Find More Information."
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be
described in the Prospectus Supplement relating to such Debt Securities.
The Senior Securities are to be issued under an Indenture dated as of April
1, 1991 (the "Senior Indenture") between the Company and Harris Trust and
Savings Bank, as Trustee (the "Senior Trustee"). The Subordinated Securities
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"). The Senior Indenture and the Subordinated
Indenture (collectively, the "Indentures") are exhibits to the Registration
Statement. The following summaries of certain provisions of the Indentures do
not purport to be complete and are qualified in their entirety by reference to
the provisions of the Indentures. Numerical references in parentheses below are
to sections of the Indentures and, unless otherwise indicated, capitalized
terms shall have the meanings given to them in the Indentures.
GENERAL
Debt Securities and Warrants offered by this Prospectus will be limited to an
aggregate initial public offering price of $4,000,000,000 (unless otherwise
indicated, currency amounts in this Prospectus and any Prospectus Supplement
are stated in United States dollars ("$", "dollars", "U.S. dollars" or "U.S.
$")) or the equivalent thereof in one or more foreign currencies or composite
currencies. The Indentures provide that Debt Securities in an unlimited amount
may be issued thereunder from time to time in one or more series. The Senior
Securities will rank pari passu with other Senior Indebtedness of the Company.
The Subordinated Securities will rank pari passu with other Subordinated
Indebtedness of the Company and, together with such Subordinated Indebtedness,
will be subordinated in right of payment to the prior payment in full of the
Senior Indebtedness of the Company as described under "Subordination--
Subordinated Securities."
The applicable Prospectus Supplement will describe the following terms of the
series of Debt Securities offered thereby: (i) the title of the Debt
Securities; (ii) any limit on the aggregate principal amount of the Debt
Securities; (iii) whether the Debt Securities are Senior Securities or
Subordinated Securities; (iv) whether the Debt Securities are to be issuable as
Registered Securities or Bearer Securities or both, whether any Bearer
Securities will be subject to any limitations on offering, sale and
distribution, whether any of the Debt Securities are to be issuable initially
in temporary global form and whether any of the Debt Securities are to be
issuable in permanent global form; (v) the price or prices (expressed as a
percentage of the aggregate principal amount thereof) at which the Debt
Securities will be issued; (vi) the date or dates on which the Debt Securities
will mature; (vii) the rate or rates at which the Debt Securities will bear
interest, if any, or the formula pursuant to which such rate or rates shall be
determined, and the date or dates from which any such interest will accrue;
(viii) the Interest Payment Dates on which any such interest on the Debt
Securities will be payable, the Regular Record Date for any interest payable on
any Debt Securities which are Registered Securities on any Interest Payment
Date, and the extent to which, or the manner in which, any interest payable on
a temporary global Security on an Interest Payment Date will be paid if other
than in the manner described under "Temporary
4
<PAGE>
Global Securities" below; (ix) the person to whom any interest on any
Registered Security will be payable if other than the person in whose name such
Registered Security is registered at the close of business on the Regular
Record Date for such interest as described under "Payment and Paying Agents"
below, and the manner in which any interest on any Bearer Security will be paid
if other than in the manner described under "Payment and Paying Agents" below;
(x) any mandatory or optional sinking fund or analogous provisions; (xi) each
office or agency where, subject to the terms of the Indenture as described
below under "Payment and Paying Agents," the principal of and any premium and
interest on the Debt Securities will be payable and each office or agency
where, subject to the terms of the Indenture as described under "Form,
Exchange, Registration and Transfer" below, the Debt Securities may be
presented for registration of transfer or exchange; (xii) the date, if any,
after which, and the price or prices at which, the Debt Securities may be
redeemed, in whole or in part at the option of the Company or the Holder, or
pursuant to mandatory redemption provisions, and the other detailed terms and
provisions of any such optional or mandatory redemption provisions; (xiii) the
denominations in which any Debt Securities which are Registered Securities will
be issuable, if other than denominations of $1,000 and any integral multiple
thereof, and the denominations in which any Debt Securities which are Bearer
Securities will be issuable, if other than the denomination of $5,000; (xiv)
the currency of payment of principal of and any premium and interest on the
Debt Securities; (xv) any index used to determine the amount of payments of
principal of and any premium and interest on the Debt Securities; (xvi) the
portion of the principal amount of the Debt Securities, if other than the
principal amount thereof, payable upon acceleration of maturity thereof; (xvii)
the application, if any, of either or both of the defeasance or covenant
defeasance sections of the Indenture as described below under "Defeasance and
Covenant Defeasance" to the Debt Securities; (xviii) the Person who shall be
the Security Registrar for Debt Securities issuable as Registered Securities,
if other than the Trustee, the Person who shall be the initial Paying Agent and
the Person who shall be the initial Common Depositary or the depositary, as the
case may be; (xix) any other terms of the Debt Securities not inconsistent with
the provisions of the Indenture; and (xx) the terms of any Warrants offered
together with such Debt Securities. Any such Prospectus Supplement will also
describe any special provisions for the payment of additional amounts with
respect to the Debt Securities of such series.
Debt Securities may be issued as Original Issue Discount Securities to be
sold at a substantial discount below their stated principal amounts. Special
United States federal income tax considerations applicable to Debt Securities
issued at an original issue discount will be set forth in a Prospectus
Supplement relating thereto. Special United States tax considerations
applicable to any Debt Securities that are denominated in a currency other than
United States dollars or that use an index to determine the amount of payments
of principal of and any premium and interest on the Debt Securities will be set
forth in a Prospectus Supplement relating thereto.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in an applicable
Prospectus Supplement, definitive Bearer Securities (other than Bearer
Securities in global form) will have interest coupons attached. (Section 201)
The Indenture also will provide that Bearer Securities of a series may be
issuable in permanent global form. (Section 201) See "Permanent Global
Securities" below. If Bearer Securities are being offered, the applicable
Prospectus Supplement will set forth various limitations on their offering,
sale and distribution.
Registered Securities of any series will be exchangeable for other Registered
Securities of the same series of authorized denominations and of a like
aggregate principal amount and tenor. In addition, if Debt Securities of any
series are issuable as both Registered Securities and Bearer Securities, at the
option of the Holder upon request confirmed in writing, and subject to the
terms of the Indenture, Bearer Securities (with all unmatured coupons, except
as provided below, and all matured coupons in default) of such series will be
exchangeable into Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor. Bearer
Securities surrendered in exchange for Registered Securities between the close
of
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<PAGE>
business on a Regular Record Date or a Special Record Date and the relevant
date for payment of interest shall be surrendered without the coupon relating
to such date for payment of interest and interest will not be payable in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the terms of the Indenture. Bearer Securities will not be issued in
exchange for Registered Securities. (Section 305) Each Bearer Security other
than a temporary global Bearer Security will bear a legend substantially to the
following effect: "Any United States Person who holds this obligation will be
subject to limitations under the United States income tax laws including the
limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue
Code."
Debt Securities may be presented for exchange as provided above, and
Registered Securities (other than a Debt Security issued in global form) may be
presented for registration of transfer (with the form of transfer endorsed
thereon duly executed), at the office of the Security Registrar or at the
office of any transfer agent designated by the Company for such purpose with
respect to any series of Debt Securities and referred to in an applicable
Prospectus Supplement, without service charge and upon payment of any taxes and
other governmental charges as described in the Indenture. Such transfer or
exchange will be effected upon the Security Registrar or such transfer agent,
as the case may be, being satisfied with the documents of title and identity of
the person making the request. Unless the Prospectus Supplement provides
otherwise, the applicable Trustee will be the initial Security Registrar for
the Debt Securities. (Sections 101 and 305) If a Prospectus Supplement refers
to any transfer agents (in addition to the Security Registrar) initially
designated by the Company with respect to any series of Debt Securities, the
Company may at any time rescind the designation of any such transfer agent or
approve a change in the location through which any such transfer agent (or
Security Registrar) acts, except that, if Debt Securities of a series are
issuable solely as Registered Securities, the Company will be required to
maintain a transfer agent in each Place of Payment for such series and, if Debt
Securities of a series are issuable as Bearer Securities, the Company will be
required to maintain (in addition to the Security Registrar) a transfer agent
in a Place of Payment for such series located in Europe. The Company may at any
time designate additional transfer agents with respect to any series of Debt
Securities. (Section 1002)
The Company shall not be required to (i) issue, register the transfer of or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before (A) if Debt Securities of the series are issuable
only as Registered Securities, the day of mailing of the relevant notice of
redemption and ending at the close of business on the day for such mailing and
(B) if Debt Securities of the series are issuable as either Bearer Securities
or Registered Securities, the earlier of the day of the first publication of
the relevant notice of redemption or the mailing of the relevant notice of
redemption and ending on the close of business on such earlier day; (ii)
register the transfer of or exchange any Registered Security, or portion
thereof, called for redemption, except the unredeemed portion of any Registered
Security being redeemed in part; or (iii) exchange any Bearer Security called
for redemption, except to exchange such Bearer Security for a Registered
Security of that series and like tenor which is immediately surrendered for
redemption. (Section 305)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
principal of and any premium and interest on Bearer Securities will be payable,
subject to any applicable laws and regulations, at the offices of such Paying
Agents outside the United States as the Company may designate from time to time
or, at the option of the Holder, by a check or by transfer to an account
maintained by the payee with a bank located outside the United States. (Section
1002) Unless otherwise indicated in an applicable Prospectus Supplement,
payment of interest on Bearer Securities on any Interest Payment Date will be
made only against surrender outside the United States, to a Paying Agent, of
the coupon relating to such Interest Payment Date. (Section 1001) No payment
with respect to any Bearer Security will be made at any office or agency of the
Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the
United States. Notwithstanding the foregoing, payments of principal of and any
premium and interest on Bearer Securities denominated and payable in U.S.
dollars will be
6
<PAGE>
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment of the full amount thereof in
U.S. dollars at all offices or agencies outside the United States is illegal or
effectively precluded by exchange controls or other similar restrictions.
(Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
principal of and any premium and interest on Registered Securities will be made
at the office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that at the option of the Company payment
of any interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register. Unless
otherwise indicated in an applicable Prospectus Supplement, payment of any
installment of interest on Registered Securities will be made to the Person in
whose name such Registered Security is registered at the close of business on
the Regular Record Date for such interest. (Sections 307 and 1002)
Any Paying Agents outside the United States and any other Paying Agents in
the United States initially designated by the Company for the Debt Securities
will be named in an applicable Prospectus Supplement. The Company may at any
time designate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any Paying Agent
acts, except that, if Debt Securities of a series are issuable solely as
Registered Securities, the Company will be required to maintain a Paying Agent
in each Place of Payment for such series and, if Debt Securities of a series
are issuable as Bearer Securities, the Company will be required to maintain (i)
a Paying Agent in the Borough of Manhattan, The City of New York, for payments
with respect to any Registered Securities of the series (and for payments with
respect to Bearer Securities of the series in the limited circumstances
described above, but not otherwise), and (ii) a Paying Agent in a Place of
Payment located outside the United States where Debt Securities of such series
and any coupons appertaining thereto may be presented and surrendered for
payment; provided that if the Debt Securities of such series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
or the Luxembourg Stock Exchange or any other stock exchange located outside
the United States and such stock exchange shall so require, the Company will
maintain a Paying Agent in London or Luxembourg or any other required city
located outside the United States, as the case may be, for the Debt Securities
of such series. (Section 1002)
All moneys paid by the Company to a Paying Agent or held by the Company in
trust for the payment of principal of and any premium or interest on any Debt
Security, which remain unclaimed at the end of two years after such principal,
premium or interest shall have become due and payable, will be discharged from
trust and repaid to the Company and the Holder of such Debt Security or any
coupon will thereafter, as an unsecured general creditor, look only to the
Company for payment thereof. (Section 1003)
TEMPORARY GLOBAL SECURITIES
If so specified in an applicable Prospectus Supplement, all or any portion of
the Debt Securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary global Securities, without
interest coupons, to be deposited with a common depositary for Morgan Guaranty
Trust Company of New York, Brussels Office, as operator of the Euroclear System
("Euroclear") and CEDEL S.A. ("CEDEL") for credit to the designated accounts.
On and after the date determined as provided in any such temporary global
Security and described in an applicable Prospectus Supplement, but within a
reasonable period of time, each such temporary global Security will be
exchangeable for definitive Bearer Securities, definitive Registered Securities
or all or a portion of a permanent global Bearer Security, or any combination
thereof, as specified in an applicable Prospectus Supplement, only under the
circumstances set forth in the accompanying pricing supplement to such
Prospectus Supplement. No definitive Bearer Security delivered in exchange for
a portion of a temporary global Security shall be mailed or otherwise delivered
to any location in the United States or its possessions in connection with such
exchange. (Section 304) Any special restrictions on delivery of a Debt Security
issued in permanent global form will be set forth in a Prospectus Supplement
relating thereto.
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PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form, the
applicable Prospectus Supplement will describe the distribution procedures
applicable to such securities in permanent global form (including any
applicable certification requirements) and the circumstances, if any, under
which beneficial owners of interests in any such permanent global Security may
exchange such interests for Debt Securities of such series and of like tenor
and principal amount of any authorized form and denomination. (Section 305) A
Person will, except with respect to payment of principal of and any premium and
interest on such permanent global Security, be treated as a Holder of such
principal amount of Outstanding Securities represented by such permanent global
Security as shall be specified in a written statement of the Holder of such
permanent global Security. (Section 203) Principal of and any premium and
interest on a permanent global Security will be payable in the manner described
in the applicable Prospectus Supplement.
SUBORDINATION
General
As used herein "Senior Indebtedness" means all Debt of the Company, except
Subordinated Indebtedness and Junior Subordinated Indebtedness; "Debt" of the
Company means all indebtedness representing money borrowed, which indebtedness
is incurred or guaranteed by the Company; "Subordinated Indebtedness" means all
Debt of the Company, other than Junior Subordinated Indebtedness, which is
subordinate and junior in right with respect to the general assets of the
Company to Senior Indebtedness; "Junior Subordinated Indebtedness" means all
Debt of the Company which is subordinate and junior in right with respect to
the general assets of the Company to all other Debt of the Company (including
without limitation Senior Indebtedness and Subordinated Indebtedness).
Subordinated Securities
The payment of principal, premium, if any, and interest in respect of the
Subordinated Securities is expressly subordinated in right of payment, to the
extent set forth in the Subordinated Indenture, to all Senior Indebtedness
which may at any time and from time to time be outstanding. In the event of any
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, whether or not pursuant to bankruptcy laws, sale of all or
substantially all of the assets, dissolution, liquidation or any other
marshaling of the assets and liabilities of the Company, no amount shall be
paid by the Company in respect of the principal, premium, if any, or interest
on the Subordinated Securities or any related coupon unless and until all
Senior Indebtedness shall have been paid in full together with all interest
thereon and all other amounts payable in respect thereof. (Subordinated
Indenture Section 1501)
The Subordinated Indenture also states that if an Event of Default with
respect to the Subordinated Securities, other than those specified in the
preceding paragraph, shall happen and be continuing, no amount shall be paid by
the Company in respect of the principal, premium, if any, or interest on the
Subordinated Securities or any related coupon, except at Stated Maturity
(subject to the preceding paragraph) and except for current interest payments
as provided in the Subordinated Securities or any related coupon, unless and
until all Senior Indebtedness shall have been paid in full together with all
interest thereon and all other amounts payable in respect thereof. Further, in
the event of any default in the payment of any Senior Indebtedness and during
the continuance of any such default, the Subordinated Indenture states that no
amount shall be paid by the Company in respect of the principal, premium, if
any, or interest on the Subordinated Securities or any related coupon, except
at Stated Maturity (subject to the preceding paragraph), and except for current
interest payments as provided in the Subordinated Securities or any related
coupon. (Subordinated Indenture Section 1501)
There are no restrictions in the Subordinated Indenture with respect to the
creation of Senior Indebtedness. At December 31, 1997, Senior Indebtedness
aggregated approximately $5.34 billion. The Company expects to make additional
borrowings constituting Senior Indebtedness from time to time.
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CERTAIN COVENANTS OF THE COMPANY WITH RESPECT TO SENIOR SECURITIES
Limitations on Liens
The Senior Indenture provides that neither the Company nor any Subsidiary
will create, incur or assume any mortgage, pledge, lien, charge or other
security interest on any of the assets of the Company or of any Subsidiary
(except to secure Debt to the Company or a Subsidiary) without making effective
provision whereby the Senior Securities shall be equally and ratably secured
except: (i) such security interests on assets of the Company or any Subsidiary
existing at the date of the Senior Indenture and renewals thereof; (ii) certain
purchase money liens, liens on real property and any improvements thereon
constructed in whole or in part by or for the Company or any Subsidiary to
secure the cost of such construction improvements made after the date of the
Senior Indenture, existing security interests on after-acquired assets, and
renewals thereof; (iii) certain security interests affecting property of a
corporation existing at the time it first becomes a Subsidiary, and renewals
thereof; (iv) certain security interests in connection with taxes or legal
proceedings or created in the ordinary course of business and not in connection
with the borrowing of money; (v) certain security interests in connection with
government and certain other contracts; and (vi) certain security interests on
property and assets in connection with any arrangement involving the transfer
of such property or assets where the transfer is accounted for as a sale under
generally accepted accounting principles. In the case of clause (ii) above, the
principal amount secured by any of such security interests may not exceed the
lesser of the cost or fair value (as determined by the Board of Directors) of
the property subject to such security interests and, in the case of clause
(iii) above, the principal amount secured by any of such security interests may
not exceed the lesser of the book value or fair value (as determined by the
Board of Directors) of the property subject to such security interest. (Senior
Indenture Section 1007)
Limitations on Mergers
The Senior Indenture provides that if any merger or consolidation of the
Company with or into any other corporation or any conveyance or transfer to any
person of all or substantially all of the property or assets of the Company
would subject any of the property or assets of the Company owned immediately
prior to such consolidation, merger, conveyance or transfer to any mortgage,
pledge, lien, charge or other security interest, the Company will, prior to
such consolidation, merger, conveyance or transfer, secure the Senior
Securities, equally and ratably with any other Debt of the Company then
entitled to be so secured, by a direct lien on all such property or assets
equal to and ratable with all liens other than any theretofore existing
thereon. (Senior Indenture Section 803)
ABSENCE OF OTHER RESTRICTIVE COVENANTS AND EVENT RISK PROVISIONS
The Indentures do not contain any provision which will restrict the Company
in any way from paying dividends or making other distributions on its capital
stock or purchasing or redeeming any of its capital stock, or from incurring,
assuming or becoming liable upon Senior Indebtedness or Subordinated
Indebtedness or any other type of debt or other obligations. The Indentures do
not contain any financial ratios or specified levels of net worth or liquidity
to which the Company must adhere. In addition, the Subordinated Indenture does
not restrict the Company from creating liens on its property for any purpose.
In addition, the Indentures do not contain any provisions which would require
the Company to repurchase or redeem or otherwise modify the terms of any of its
Debt Securities upon a change in control or other events involving the Company
which may adversely affect the creditworthiness of the Debt Securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Securities under the Indentures, may consolidate with or merge into, or convey
or transfer its assets substantially as an entirety to, any Person that is a
corporation, partnership or trust organized and existing under the laws of any
domestic jurisdiction, provided that any successor Person assumes the Company's
obligations on the Debt Securities and
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under the Indentures, that after giving effect to the transaction no Event of
Default and no event which, after notice or lapse of time, would become an
Event of Default shall have occurred and be continuing, and that certain other
conditions are met. (Section 801)
DEFAULTS AND CERTAIN RIGHTS ON DEFAULT
Each Indenture defines an Event of Default with respect to any series of Debt
Securities thereunder as being any of the following events and such other
events as may be established for the Debt Securities of such series: (i)
default for 30 days in any payment of interest on the Debt Securities of such
series; (ii) default with respect to Debt Securities of such series in any
payment of principal or premium, if any, when due; (iii) default in the payment
of any sinking fund installment with respect to the Debt Securities of such
series when due; (iv) default in performance of any other covenant in the
Indenture for 60 days after written notice to the Company by the Trustee or the
Holders of at least 15% in principal amount of the Debt Securities of such
series then Outstanding; (v) failure by the Company or any Subsidiary to pay
any Debt in an amount exceeding $10,000,000 at maturity; (vi) acceleration of
any Debt of the Company or any Subsidiary in an amount exceeding $10,000,000
under the terms of the instrument under which such Debt is or may be
outstanding, if such acceleration is not annulled within 30 days after notice
to the Company by the Trustee or the Holders of at least 15% in principal
amount of the Debt Securities of such series then Outstanding; or (vii) certain
events of bankruptcy, insolvency, receivership or reorganization. (Section 501)
The Company will be required to file with the Trustee annually a written
statement as to the fulfillment of its obligations under the Indenture.
(Section 704)
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of
that series by notice as provided in the Indenture may declare the principal
amount (or, if the Outstanding Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of that series) of all the Outstanding Securities of that series
to be due and payable immediately. At any time after a declaration of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree for payment of money has been obtained by the
Trustee, and subject to applicable law and certain other provisions of the
applicable Indenture, the Holders of a majority in aggregate principal amount
of the Outstanding Securities of that series may, under certain circumstances,
rescind and annul such acceleration. (Section 502)
Each Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holder shall have
offered to the Trustee reasonable indemnity. (Sections 601 and 603) Subject to
such provisions for the indemnification of the Trustee, and subject to
applicable law and certain other provisions of the Indenture, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Debt Securities of that
series. (Section 512)
MEETINGS, MODIFICATION AND WAIVER
Modifications and amendments of each Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Security affected thereby, (i) change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Debt
Security or related coupon, (ii) reduce the principal amount of, or premium or
interest on, any Debt Security or related coupon or any premium payable upon
the redemption thereof, (iii) change any obligation of the Company to pay
additional amounts, (iv) reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the Maturity thereof, (v) change
the coin or currency in which any Debt Security or any
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premium or interest thereon is payable, (vi) impair the right to institute suit
for the enforcement of any payment on or with respect to any Debt Security,
(vii) reduce the percentage in principal amount of Outstanding Securities of
any series, the consent of whose Holders is required for modification or
amendment of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults, (viii) reduce the
requirements contained in the Indenture for quorum or voting, (ix) change any
obligation of the Company to maintain an office or agency in the places and for
the purposes required by the Indenture, (x) with respect to the Subordinated
Indenture, modify the terms relating to subordination in a manner adverse to
the Holders of Debt Securities issued under that Indenture, (xi) adversely
affect the right of repayment, if any, of the Debt Securities at the option of
the Holders thereof, or (xii) modify any of the above provisions. (Section 902)
The Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of each series may, on behalf of all Holders of Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture.
(Senior Indenture Section 1009 and Subordinated Indenture Section 1008) The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of each series may, on behalf of all Holders of Debt
Securities of that series and any coupons appertaining thereto, waive any past
default and its consequences under the Indenture with respect to Debt
Securities of that series, except a default (i) in the payment of principal of
(or premium, if any) or any interest on any Debt Security or coupon of such
series, and (ii) in respect of a covenant or provision of the Indenture which
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series or coupon affected. (Section 513)
Each Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or whether a quorum is present at a meeting of Holders of Debt Securities or
the number of votes entitled to be cast by the Holder of any Debt Security (i)
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon acceleration
of the Maturity thereof, and (ii) the principal amount of a Debt Security
denominated in a foreign currency or a composite currency shall be the U.S.
dollar equivalent, determined as of the date of original issuance of such Debt
Security by the Company in good faith, of the principal amount of such Debt
Security (or, in the case of an Original Issue Discount Security, the U.S.
dollar equivalent, determined as of the date of original issuance of such Debt
Security, of the amount determined as provided in (i) above). (Section 101)
Each Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series. (Section 1301) A meeting may be called at any time
by the Trustee, and also, upon request, by the Company or the Holders of at
least 10% in principal amount of the Outstanding Securities of such series, in
any such case upon notice given in accordance with "Notices" below. (Section
1302) Except for any consent which must be given by the Holder of each
Outstanding Security affected thereby, as described above, any resolution
presented at a meeting or adjourned meeting at which a quorum (as described
below) is present may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, any resolution with respect to any consent or waiver
which must be given by the Holders of not less than 66 2/3% in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened at which a quorum is present only by the
affirmative vote of the Holders of 66 2/3% in principal amount of the
Outstanding Securities of that series; and provided, further, that, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or adjourned meeting duly reconvened at which a quorum is present by
the affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of that series. Any resolution passed or
decision taken at any meeting of Holders of Securities of any series duly held
in accordance with the Indenture will be binding on all Holders of Securities
of that series and the related coupons. The quorum at any meeting
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called to adopt a resolution, and at any reconvened meeting, will be persons
holding or representing a majority in principal amount of the Outstanding
Securities of a series; provided, however, that if any action is to be taken at
such meeting with respect to a consent or waiver which must be given by the
Holders of not less than 66 2/3% in principal amount of the Outstanding
Securities of a series, the persons holding or representing 66 2/3% in
principal amount of the Outstanding Securities of such series will constitute a
quorum. (Section 1304)
DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides, unless the Company elects otherwise pursuant to
Section 301 of the Indenture with respect to the Debt Securities of any series,
that the Company may elect either (i) to defease and be discharged from any and
all obligations with respect to such Debt Securities (except for the
obligations to register the transfer or exchange of such Debt Securities, to
replace temporary or mutilated, destroyed, lost or stolen Debt Securities, to
maintain an office or agency in respect of the Debt Securities and to hold
moneys for payment in trust) ("defeasance") or (ii) to be released from its
obligations with respect to such Debt Securities under Sections 1006, 1007 and
1008 of the Senior Indenture and Sections 1006 and 1007 of the Subordinated
Indenture ("covenant defeasance"), upon the deposit with the Trustee (or other
qualifying trustee), in trust for such purpose, of money, and/or U.S.
Government Obligations which through the payment of principal and interest in
accordance with their terms will provide money, in an amount sufficient to pay
the principal of and any premium and interest on such Debt Securities, and any
mandatory sinking fund or analogous payments thereon, on the scheduled due
dates therefor. Such a trust may only be established if, among other things,
the Company has delivered to the trustee an opinion of counsel (as specified in
the Indenture) to the effect that the Holders of such Debt Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance or covenant defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance or covenant defeasance had not occurred and,
in the case of Bearer Securities, there will be no adverse federal tax
consequences to the Holders of such Bearer Securities as a result of such
defeasance or covenant defeasance. Such opinion, in the case of defeasance
under clause (i) above, must refer to and be based upon a ruling of the
Internal Revenue Service or a change in applicable federal income tax law
occurring after the date of the Indenture. In the case of covenant defeasance,
such termination will not relieve the Company of its obligation to pay when due
the principal of or interest on the Debt Securities of such series if the Debt
Securities of such series are not paid from the money or Government Obligations
held by the Trustee for the payment thereof. The Prospectus Supplement may
further describe the provisions, if any, permitting such defeasance or covenant
defeasance with respect to the Debt Securities of a particular series. (Article
Fourteen)
NOTICES
Except as otherwise provided in the applicable Indenture, notices to Holders
of Bearer Securities will be given by publication at least twice in a daily
newspaper in The City of New York and in such other city or cities as may be
specified in such Securities. Notices to Holders of Registered Securities will
be given by mail to the addresses of such Holders as they appear in the
Security Register. (Sections 101 and 106)
TITLE
Title to any Bearer Securities and any coupons appertaining thereto will pass
by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon and the registered owner of any Registered Security as the absolute
owner thereof (whether or not such Debt Security or coupon shall be overdue and
notwithstanding any notice to the contrary) for the purpose of making payment
and for all other purposes. (Section 308)
REPLACEMENT OF DEBT SECURITIES AND COUPONS
Any mutilated Debt Security or a Debt Security with a mutilated coupon
appertaining thereto will be replaced by the Company at the expense of the
Holder upon surrender of such Debt Security to the Trustee.
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Debt Securities or coupons that become destroyed, stolen or lost will be
replaced by the Company at the expense of the Holder upon delivery to the
Trustee of the Debt Security, coupon or coupons or evidence of the destruction,
loss or theft thereof satisfactory to the Company and the Trustee; in the case
of any coupon which becomes destroyed, stolen or lost, such coupon will be
replaced by issuance of a new Debt Security in exchange for the Debt Security
to which such coupon appertains. In the case of a destroyed, lost or stolen
Debt Security or coupon an indemnity satisfactory to the Trustee and the
Company may be required at the expense of the Holder of such Debt Security or
coupon before a replacement Debt Security will be issued. (Section 306)
CONCERNING THE TRUSTEES
An affiliate of Harris Trust and Savings Bank, the Senior Trustee under the
Senior Indenture, has stand-by credit facilities with the Company in the amount
of $80,000,000, the borrowings under which would rank on a parity with the
Senior Securities. The Company may from time to time conduct other transactions
with the Senior Trustee. The Senior Trustee is also the trustee under the
Company's Indenture dated as of July 1, 1982 and the Company's Indenture dated
as of November 1, 1987 pursuant to each of which the Company has outstanding
Senior Indebtedness.
The Bank of New York, the Subordinated Trustee under the Subordinated
Indenture, has stand-by credit facilities with the Company in the amount of
$80,000,000, the borrowings under which would be senior to the Subordinated
Securities. The Company may from time to time conduct other transactions with
the Subordinated Trustee. The Subordinated Trustee is also the successor
trustee under the Company's Indenture dated as of September 1, 1984 pursuant to
which the Company has outstanding Subordinated Indebtedness.
The Senior Trustee or the Subordinated Trustee may from time to time make
loans to the Company and perform other services for the Company in the normal
course of business. Under the provisions of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), upon the occurrence of a default under an
indenture, if a trustee has a conflicting interest (as defined in the Trust
Indenture Act) the trustee must, within 90 days, either eliminate such
conflicting interest or resign. Under the provisions of the Trust Indenture
Act, an indenture trustee shall be deemed to have a conflicting interest if the
trustee is a creditor of the obligor. If the trustee fails either to eliminate
the conflicting interest or to resign within 10 days after the expiration of
such 90-day period, the trustee is required to notify security holders to this
effect and any security holder who has been a bona fide holder for at least six
months may petition a court to remove the trustee and to appoint a successor
trustee.
DESCRIPTION OF WARRANTS
The following description of the terms of the Warrants sets forth certain
general terms and provisions of the Warrants to which any Prospectus Supplement
may relate. The particular terms of the Warrants offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply
to the Warrants so offered will be described in the Prospectus Supplement
relating to such Warrants.
Warrants may be offered independently or together with any series of Debt
Securities offered by a Prospectus Supplement and may be attached to or
separate from such Debt Securities. Each series of Warrants will be issued
under a separate warrant agreement (a "Warrant Agreement") to be entered into
between the Company and a bank or trust company, as Warrant Agent (the "Warrant
Agent"), all as set forth in the Prospectus Supplement relating to such series
of Warrants. The Warrant Agent will act solely as the agent of the Company in
connection with the certificates for the Warrants (the "Warrant Certificates")
of such series and will not assume any obligation or relationship of agency or
trust for or with any holders of Warrant Certificates or beneficial owners of
Warrants. Copies of the forms of Warrant Agreements, including the forms of
Warrant Certificates, are filed as an exhibit to the Registration Statement to
which this Prospectus pertains. The following summaries of certain provisions
of the forms of Warrant Agreements and Warrant Certificates do not purport to
be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Warrant Agreements and the Warrant
Certificates.
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GENERAL
Reference is hereby made to the Prospectus Supplement relating to the
particular series of Warrants, if any, offered thereby for the terms of such
Warrants including, where applicable: (i) the offering price; (ii) the
currencies in which such Warrants are being offered; (iii) the designation,
aggregate principal amount, currencies, denominations and terms of the series
of Debt Securities purchasable upon exercise of such Warrants; (iv) the
designation and terms of the series of Debt Securities with which such Warrants
are being offered and the number of such Warrants being offered with each such
Debt Security; (v) the date on and after which such Warrants and the related
series of Debt Securities will be transferable separately; (vi) the principal
amount of the series of Debt Securities purchasable upon exercise of each such
Warrant and the price at which and currencies in which such principal amount of
Debt Securities of such series may be purchased upon such exercise; (vii) the
date on which the right to exercise such Warrants shall commence and the date
(the "Expiration Date") on which such right shall expire; (viii) federal income
tax consequences; and (ix) any other terms of such Warrants.
Warrant Certificates of each series will be in registered form and will be
exchangeable at the option of the holder thereof for Warrant Certificates of
such series of like tenor representing in the aggregate the number of Warrants
surrendered for exchange. Warrant Certificates of each series will be
transferable upon surrender without service charge, subject to the payment of
any taxes or other governmental charges due in respect of a transfer, and will
be exchangeable and transferable at the corporate trust office of the Warrant
Agent or any other office indicated in the Prospectus Supplement relating to
such series of Warrants. Prior to the exercise of their Warrants, holders of
Warrants will not have any of the rights of holders of the series of Debt
Securities purchasable upon such exercise, including the right to receive
payments of principal of, premium, if any, or interest on the series of Debt
Securities purchasable upon such exercise, or to enforce any of the covenants
in the applicable Indenture.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase such principal
amount of the related series of Debt Securities at such exercise price as shall
in each case be set forth in, or calculable as set forth in, the Prospectus
Supplement relating to such Warrant. Warrants of a series may be exercised at
the corporate trust office of the Warrant Agent for such series of Warrants (or
any other office indicated in the Prospectus Supplement relating to such series
of Warrants) at any time prior to 5:00 P.M., New York City time, on the
Expiration Date set forth in the Prospectus Supplement relating to such series
of Warrants. After the close of business on the Expiration Date relating to
such series of Warrants (or such later date to which such Expiration Date may
be extended by the Company), unexercised Warrants of such series will become
void.
Warrants of a series may be exercised by delivery to the appropriate Warrant
Agent of payment, as provided in the Prospectus Supplement relating to such
series of Warrants, of the amount required to purchase the principal amount of
the series of Debt Securities purchasable upon such exercise, together with
certain information as set forth on the reverse side of the Warrant Certificate
evidencing such Warrants. Such Warrants will be deemed to have been exercised
upon receipt of the exercise price, subject to the receipt within five business
days of such Warrant Certificate. Upon receipt of such payment and such Warrant
Certificate, properly completed and duly executed, at the corporate trust
office of the appropriate Warrant Agent (or any other office indicated in the
Prospectus Supplement relating to such series of Warrants), the Company will,
as soon as practicable, issue and deliver the principal amount of the series of
Debt Securities purchasable upon such exercise. If fewer than all of the
Warrants represented by such Warrant Certificate are exercised, a new Warrant
Certificate will be issued for the remaining amount of Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities and the Warrants separately or
together, (i) to one or more underwriters or dealers for public offering and
sale by them and (ii) to investors directly or through agents. The
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distribution of the Debt Securities and the Warrants may be effected from time
to time in one or more transactions at a fixed price or prices (which may be
changed from time to time), at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. Each
Prospectus Supplement will describe the method of distribution of the Debt
Securities and the Warrants offered thereby.
In connection with the sale of the Debt Securities and the Warrants,
underwriters, dealers or agents may receive compensation from the Company or
from purchasers of the Debt Securities and the Warrants for whom they may act
as agents, in the form of discounts, concessions or commissions. The
underwriters, dealers or agents that participate in the distribution of the
Debt Securities and the Warrants may be deemed to be underwriters under the
Securities Act and any discounts or commissions received by them and any profit
on the resale of the Debt Securities and the Warrants received by them may be
deemed to be underwriting discounts and commissions thereunder. Any such
underwriter, dealer or agent will be identified and any such compensation
received from the Company will be described in the Prospectus Supplement. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Under agreements that may be entered into with the Company, underwriters,
dealers and agents may be entitled to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act, or
to contribution with respect to payments which the underwriters, dealers or
agents may be required to make in respect thereof.
Each underwriter, dealer and agent participating in the distribution of any
Debt Securities that are issuable in bearer form will agree that it will not
offer, sell, resell or deliver, directly or indirectly, Debt Securities in
bearer form to persons located in the United States or to United States persons
(other than qualifying financial institutions), in connection with the original
issuance of the Debt Securities.
All Debt Securities and Warrants will be new issues of securities with no
established trading market. Any underwriters to whom Debt Securities or
Warrants are sold by the Company for public offering and sale may make a market
in such securities, but such underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any such securities.
Certain of the underwriters or agents and their affiliates may be customers
of, engage in transactions with and perform investment banking, commercial
banking and other financial services for the Company and its affiliates in the
ordinary course of business.
LEGAL OPINIONS
Certain legal matters with respect to the Debt Securities and Warrants
offered hereby will be passed upon for the Company by Orrick, Herrington &
Sutcliffe LLP, San Francisco, California.
EXPERTS
The consolidated financial statements of Transamerica Finance Corporation and
subsidiaries appearing in the Company's Annual Report on Form 10-K for the year
ended December 31, 1997, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fee............................................ $ 1,112,000
Trustee's fees and expenses................................. 105,000*
Accountants' fees and expenses.............................. 90,000*
Printing and engraving...................................... 200,000*
Blue sky and legal investment fees and expenses............. 40,000*
Rating agencies' fees....................................... 800,000*
Legal fees and expenses..................................... 400,000*
Miscellaneous............................................... 3,000*
-----------
Total..................................................... $ 2,750,000
===========
</TABLE>
- --------
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As authorized by Section 145 of the Delaware Corporation Law, the Company's
By-Laws provide for indemnification of directors, officers, employees and
agents in certain cases. Indemnification is available when a person is made a
party to any proceeding by reason of the fact that he is or was a director,
officer, employee or agent of the Company or a director, officer, employee or
agent of another enterprise, serving as such at the request of the Company, and
if he acted in good faith and in a manner reasonably believed by him to be in,
or not opposed to, the best interest of the Company. With respect to any
criminal proceeding, such person must have had no reasonable cause to believe
that his conduct was unlawful. If it is determined that the conduct of such
person meets these standards, he shall be indemnified for expenses incurred and
amounts paid in such proceeding if actually and reasonably incurred by him in
connection therewith.
If such proceeding is brought by or on behalf of the Company, such person
shall be indemnified against expenses actually and reasonably incurred if he
acted in good faith and in a manner reasonably believed by him to be in, or not
opposed to, the best interest of the Company. There can be no indemnification
with respect to any matter as to which such person is adjudged to be liable to
the Company for negligence or misconduct in the performance of his duty;
however, a court may, even in such case, allow indemnification to such person
for such expenses as the court deems proper. Where such person is successful in
any such proceeding, he is entitled to be indemnified against expenses actually
and reasonably incurred by him. In all other cases, indemnification is made by
the Company upon determination by it that indemnification of such person is
proper because he has met the applicable standard of conduct.
In furtherance of such indemnity obligations, the Company has entered into
individual indemnity agreements with each of its directors and executive
officers. Also, there is directors' and officers' liability insurance presently
outstanding which insures directors and officers of the Company. One such
policy, to a relatively limited extent, covers losses for which the Company
shall be required or permitted by law to indemnify directors and officers and
which result from claims made against such directors or officers based upon the
commission of wrongful acts in the performance of their duties. Such policy
also, to a relatively limited extent, and another policy, to a more substantial
extent, cover losses which the directors or officers must pay as the result of
claims brought against them based upon the commission of wrongful acts in the
performance of their duties and for which they are not indemnified by the
Company. The losses covered by these policies are subject to certain exclusions
and do not include fines or penalties imposed by law or other matters deemed
uninsurable under the law. The policies contain certain co-insurance
requirements and deductible provisions.
II-1
<PAGE>
Reference is made to Section 7 of the Underwriting Agreement Standard
Provisions for Debt Securities and Warrants and Section 6 of the Distribution
Agreement each included herein as exhibits to the Registration Statement for
provisions regarding indemnification of the Company, officers, directors and
controlling persons against certain liabilities.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT
<TABLE>
<CAPTION>
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
<C> <S>
1.1 Form of Underwriting Agreement
1.2 Underwriting Agreement Standard Provisions for Debt Securities and
Warrants
1.3 Form of Distribution Agreement
4.1 Indenture dated as of April 1, 1991 between the Registrant and
Harris Trust and Savings Bank, as Trustee (incorporated by
reference to Exhibit 4.1 to Registration Statement on Form S-3 File
No. 33-40236)
4.2 Form of Indenture dated as of April 1, 1991 between the Registrant
and First Interstate Bank, Ltd., as Trustee (incorporated by
reference to Exhibit 4.2 to Registration Statement on Form S-3 File
No. 33-40236)
4.3 Form of Debt Security
4.4 Form of Senior Medium-Term Note, Series _____
4.5 Form of Subordinated Medium-Term Note, Series _____
4.6 Form of Warrant Agreements (including forms of Warrant
Certificates)
5 Opinion of Austin D. Kim, Vice President, General Counsel and
Secretary of the Company as to validity of the Debt Securities and
Warrants
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 The consent of Austin D. Kim is contained in his opinion filed as
Exhibit 5 to this Registration Statement
23.3 Consent of Orrick, Herrington & Sutcliffe LLP
24 Powers of Attorney
25.1 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Harris Trust and Savings Bank
25.2 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Bank of New York
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act"); (ii) to reflect in the prospectus any facts
or events arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of
II-2
<PAGE>
securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement; provided, however, that the
undertakings set forth in clauses (i) and (ii) above shall not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF SAN FRANCISCO, STATE OF CALIFORNIA, ON THIS
14TH DAY OF DECEMBER, 1998.
TRANSAMERICA FINANCE CORPORATION
/s/ PHILIP RICE
By:
___________________________________
Philip Rice
Senior Vice President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER
AND DIRECTOR:
* President, Chief Executive
______________________________________ Officer and Director December 14, 1998
Robert A. Watson
PRINCIPAL FINANCIAL OFFICER:
/s/ PHILIP RICE
______________________________________ Senior Vice President December 14, 1998
Philip Rice
PRINCIPAL ACCOUNTING OFFICER:
/s/ BURTON E. BROOME Vice President and
______________________________________ Controller December 14, 1998
Burton E. Broome
DIRECTORS:
*
______________________________________ Director December 14, 1998
Thomas J. Cusack
*
______________________________________ Director December 14, 1998
Edgar H. Grubb
*
______________________________________ Director December 14, 1998
Frank C. Herringer
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
*
______________________________________ Director December 14, 1998
Steven A. Read
*
______________________________________ Director December 14, 1998
Charles E. Tingley
*
______________________________________ Director December 14, 1998
Mitchell F. Vernick
</TABLE>
*By: /s/ PHILIP RICE
______________________________
Philip Rice
Attorney-in-Fact
II-5
<PAGE>
EXHIBIT 1.1
UNDERWRITING AGREEMENT
____________, _____
Transamerica Finance Corporation
600 Montgomery Street
San Francisco, California 94111
Ladies and Gentlemen:
We understand that Transamerica Finance Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell [insert principal amount
and/or number of and title of Debt Securities (the "Offered Debt Securities")
and/or Warrants (the "Offered Warrants")] [to be sold in units (the "Offered
Units") each consisting of the amount of Offered Debt Securities and Offered
Warrants set forth in Schedule I hereto] (the "Offered Securities") covered by
Registration Statement No. 333-__________. The specific terms of the Offered
Securities are set forth in Schedule I hereto. Subject to the terms and
conditions set forth herein and incorporated by reference herein, the Company
hereby agrees to sell and each underwriter named below (such underwriters being
herein called the "Underwriters"), severally and not jointly agrees to purchase,
at the purchase price set forth in Schedule I hereto, the [principal amount]
[number] of such Offered Securities set forth opposite such Underwriter's name
in Schedule II hereto.
All the provisions contained in the document entitled Transamerica
Finance Corporation Underwriting Agreement Standard Provisions for Debt
Securities and Warrants (December 1998) (the "Standard Provisions"), a copy of
which we have previously received, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein. For purposes of the
Standard Provisions, the term Representatives shall mean
________________________________________________.
The Underwriters will pay for the Offered Securities at the office of
___________________________________, ___________________________________,
___________________________________, at _____ A.M. _________________________
[time] on _________, ____________, ____or at such other time and place as shall
be mutually agreed upon (the "Closing Date"), upon confirmation of delivery to
the Underwriters in New York City of certificates for the Offered Securities in
such denominations as the Underwriters request. Payment shall be made in the
following funds:
_____________________________________________________________________________.
The Company agrees to have the Offered Securities available for inspection,
checking and packaging by the Underwriters in _________________________, not
later than ____ _.M. (New York time) on the business day next preceding the
Closing Date.
<PAGE>
[The Representatives have received at the time this Agreement is executed a
letter from Ernst & Young LLP, independent public accountants [or other
independent accountants acceptable to the Representatives], dated the date of
this Agreement, to the effect set forth in Exhibit D to the Underwriting
Agreement Standard Provisions for Debt Securities and Warrants (December 1998),
incorporated in this Agreement.]
[If any one or more Underwriters shall fail to purchase and pay for any of
the Offered Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
nondefaulting Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Offered Securities set forth
opposite their names in Schedule I hereto bears to the aggregate amount of
Offered Securities set forth opposite the names of all the remaining
Underwriters) the Offered Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
-------- -------
that the aggregate amount of Offered Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Offered Securities set forth in Schedule I hereto, the nondefaulting
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Offered Securities, and if such nondefaulting
Underwriters do not purchase all the Offered Securities, this Agreement will
terminate without liability to any nondefaulting Underwriter or the Company
other than as provided in Section 9 hereof. In the event of a default by any
Underwriter as set forth in this paragraph, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this paragraph shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.]
[The Company will reimburse the Underwriters for their out-of-pocket
expenses, including counsel fees, in connection with the issuance and sale of
the Offered Securities pursuant to this Agreement.]
Notices shall be sent to the Underwriters at the following addresses:
______________________________________________________________________________.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
2
<PAGE>
Please confirm your agreement by having your authorized officers sign
a copy of this Agreement in the space set forth below and returning the signed
copy to us.
Very truly yours,
(Signed on behalf of the Underwriters)/*/
____________________________________________
Accepted:
TRANSAMERICA FINANCE CORPORATION
By:_________________________
Title:______________________
Dated: __________________
___________________
/*/ To be executed by all the Underwriters listed on Schedule II hereto or by
one or more of such Underwriters on behalf of itself (themselves) and the other
Underwriters listed on Schedule II.
3
<PAGE>
SCHEDULE I
Underwriting Agreement dated __________ __, ____.
Debt Securities
Title:
Principal amount and currency:
Public offering price and currency:
Purchase price and currency (include accrued interest and amortization, if
any):
Sinking fund provisions:
Redemption or repayment provisions:
Other provisions:
Warrants
Title:
Number:
Warrant exercise price and currency:
Public offering price and currency:
Purchase price and currency:
Principal amount and currency of Warrant Securities issuable upon exercise of
one Warrant:
Date after which Warrants are exercisable:
Expiration date:
Warrant Agent: . . . (the "Warrant Agents")
Other provisions:
Units
Title and principal amount of Debt Securities and title and number of Warrants
included in one Unit:
Public offering price and currency:
I-1
<PAGE>
Purchase price and currency:
Detachable Date:
Other provisions:
Warrant Securities
Title:
Principal amount and currency:
Sinking fund provisions:
Redemption provisions:
Other provisions:
I-2
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
<S> <C>
NAME PRINCIPAL
AMOUNT/
NUMBER
-----------
Total................................................
===========
</TABLE>
II-1
<PAGE>
EXHIBIT 1.2
December 1998
TRANSAMERICA FINANCE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS FOR DEBT SECURITIES AND WARRANTS
(DECEMBER 1998)
<PAGE>
From time to time, Transamerica Finance Corporation (the "Company")
may enter into underwriting agreements that provide for the sale of designated
securities to the several underwriters named therein. The standard provisions
set forth herein may be incorporated by reference in any such underwriting
agreement (an "Underwriting Agreement"). The Underwriting Agreement, including
the provisions incorporated therein by reference, is herein sometimes referred
to as "this Agreement." Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
1. Securities; Prospectus; Representations and Warranties. (a) The
Company proposes to issue and sell from time to time senior debt securities (the
"Senior Securities") and subordinated debt securities (the "Subordinated
Securities", the Senior and Subordinated Securities being herein collectively
referred to as the "Debt Securities"). The Senior Securities are to be issued
under an Indenture dated as of April 1, 1991 (the "Senior Indenture") between
the Company and Harris Trust and Savings Bank, as Trustee (the "Senior
Trustee"). The Subordinated Securities 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 known as First Interstate Bank, Ltd., as Trustee (the
"Subordinated Trustee"). The Senior and Subordinated Trustees are herein
collectively referred to as the "Trustees." The Debt Securities may have
varying designations, maturities, rates and terms of payment of interest, if
any, selling prices, redemption terms, if any, and other specific terms.
The Company also proposes to issue and sell from time to time warrants
(the "Warrants") to purchase Debt Securities (the "Warrant Securities") either
separately or as units consisting of Warrants and a certain principal amount of
the Debt Securities (the "Units"). The Warrants are to be issued pursuant to a
warrant agreement (the "Warrant Agreement") to be entered into between the
Company and the Warrant Agent (as defined therein). The Warrants may have
varying designations, terms for exercising, selling prices and other specific
terms.
As used herein, "Offered Debt Securities", "Offered Warrants" and
"Offered Units" shall mean the specific Debt Securities, Warrants and Units,
respectively, described in the Underwriting Agreement. The Offered Debt
Securities, Offered Warrants and Offered Units described in the Underwriting
Agreement shall collectively be referred to as the "Offered Securities."
(b) The Company represents and warrants to each Underwriter that it
has filed with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933 (the "1933 Act") a registration statement
(File No. 333- ), including a prospectus, relating to the Debt Securities and
the Warrants, that the Company meets the requirements for use of Form S-3 under
the 1933 Act and that such registration statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) and (a)(2)
under the 1933 Act and complies in all other material respects with said rule
and, as so amended, such registration statement has become effective. The term
"Registration Statement" means the registration statement as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Preliminary Prospectus" means the Basic
Prospectus together with a preliminary prospectus supplement specifically
relating to the Offered Securities. The Company will file with, or mail for
filing to, the
<PAGE>
Commission a prospectus supplement or supplements specifically relating to the
Offered Securities pursuant to Rule 424 under the 1933 Act (the "Prospectus
Supplement"), together with the Basic Prospectus (collectively, the
"Prospectus"). As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "Preliminary Prospectus" shall include in each
case the material, if any, incorporated by reference therein and the terms
"amend", "amendment" and "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the Securities Exchange Act of
1934 (the "1934 Act") after the effective date of the Registration Statement, or
the date of any Preliminary Prospectus or the Prospectus, as the case may be,
and deemed to be incorporated therein by reference.
(c) The Company represents and warrants to each Underwriter that (i) each
document, if any, filed or to be filed pursuant to the 1934 Act and incorporated
by reference in the Prospectus complied or will comply when so filed in all
material respects with the 1934 Act and the rules and regulations thereunder,
(ii) each part of the Registration Statement (including the documents
incorporated by reference therein), when such part became effective or was
filed, as the case may be, complied in all material respects with the 1933 Act
and the 1934 Act and the rules and regulations thereunder and did not contain
any untrue statements of material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
(iii) each Preliminary Prospectus, if any, filed pursuant to Rule 424 under the
1933 Act complied when so filed in all material respects with the 1933 Act and
the rules and regulations thereunder, (iv) the Registration Statement, the
Prospectus and the Indenture comply and, as amended or supplemented, will comply
in all material respects with the 1933 Act and the Trust Indenture Act of 1939
and the rules and regulations thereunder and (v) at the date of the Prospectus
Supplement, at the date of any further amendment to the Registration Statement
or supplement to the Prospectus and at the Closing Date, the Registration
Statement and the Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, except that these representations
and warranties do not apply to statements in or omissions from any such
documents based upon information furnished to the Company in writing by any
Underwriter or by the Trustee expressly for use therein.
2. Offering of Offered Securities. The Company is advised by the
Representatives that the Underwriters propose to offer the Offered Securities in
the manner set forth in the Prospectus.
3. Delivery and Payment. Payment for the Offered Securities shall be made
by wire transfer of immediately available funds to the order of the Company at
the time and place set forth in this Agreement, upon delivery to the
Representatives for the respective accounts of the several Underwriters of the
Offered Securities registered in such names, if in registered form, and in such
denominations as the Representatives shall request in writing not less than two
full business days prior to the date of delivery. The time and date of such
payment and delivery of the Offered Securities are herein referred to as the
Closing Date.
2
<PAGE>
4. Agreements. The Company agrees with the Underwriters that:
(a) The Company will cause the Basic Prospectus as supplemented by the
Prospectus Supplement to be filed pursuant to Rule 424 under the 1933 Act and,
prior to the termination of the offering of the Offered Securities and prior to
the expiration or exercise of the Offered Warrants, if any, will promptly advise
the Representatives (i) when any amendment to the Registration Statement shall
have become effective or any further supplement to the prospectus shall have
been filed, (ii) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional information,
(iii) of 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 (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Offered
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. Prior to the termination of the offering of the
Offered Securities and prior to the expiration or exercise of the Offered
Warrants, if any, the Company will not file any amendment of the Registration
Statement or any further supplement to the Prospectus unless the Company has
furnished the Representatives a copy for review prior to filing and will not
file any such proposed amendment or supplement to which the Representatives
reasonably object. 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.
(b) If, at any time when a prospectus relating to the Offered Securities or
the Warrant Securities issuable exercise of the Offered Warrants, if any, is
required to be delivered under the 1933 Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any 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 it shall be necessary to amend or supplement the
Prospectus to comply with the 1933 Act or the 1934 Act or the respective rules
or regulations thereunder, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance.
(c) The Company will make generally available to its security holders and
to the Representatives as soon as practicable, but not later than 45 days after
the end of the 12-month period beginning at the end of the fiscal quarter of the
Company during which the filing of the Prospectus pursuant to Rule 424 under the
1933 Act first occurs (except not later than 90 days if such filing date is the
Company's last fiscal quarter), an earnings statement (which need not be
audited) of the Company and its consolidated subsidiaries, covering such 12-
month period, that will satisfy the provisions of Section 11(a) of the 1933 Act
and Rule 158 thereunder.
(d) The Company will furnish to counsel for the Underwriters, without
charge, a signed copy of the Registration Statement (including exhibits thereto
and materials incorporated by reference therein) and each amendment thereto
(without exhibits thereto but including any materials incorporated by reference
therein) and, so long as delivery of a prospectus by an Underwriter or dealer in
connection with the sale of the Offered Securities or the Warrant Securities
issuable upon exercise of the Offered Warrants, if any, may be required by the
1933 Act, as many copies of each Preliminary Prospectus and the Prospectus and
any amendments thereof and supplements thereto as the Representatives may
reasonably request.
3
<PAGE>
(e) The Company will pay all expenses incident to the performance of its
obligations under this Agreement, and will pay the expenses of printing or other
production of all documents relating to the offering of the Offered Securities
and Warrant Securities issuable upon exercise of the Offered Warrants, if any,
any fees charged for rating the Offered Securities and the Warrant Securities
and fees and expenses incurred with respect to any filing with the National
Association of Securities Dealers, Inc. in respect of the Offered Securities or
the Warrant Securities.
(f) The Company will arrange for the qualification of the Offered
Securities and the Warrant Securities issuable upon exercise of the Offered
Warrants, if any, for sale under the laws of such jurisdictions as the
Representatives, on behalf of the Underwriters, may designate, will maintain
such qualifications in effect so long as required for the distribution of the
Offered Securities and such Warrant Securities and will arrange for the
determination of the eligibility of the Offered Securities and the Warrant
Securities for investment under the laws of such jurisdictions as the
Representatives, on behalf of the Underwriters, may designate.
(g) During the period beginning with the date of the Underwriting Agreement
and continuing to and including the later of the Closing Date or the date on
which the Underwriters terminate the syndicate pricing restrictions applicable
to the Offered Securities, but in no event later than the 30/th/ day after the
date of the signing of the Underwriting Agreement, the Company agrees not to
offer, sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Offered Securities, without the prior
consent of the Representatives.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Offered Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date of the Underwriting Agreement and the Closing
Date (as if made on the Closing Date), to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Representatives, on behalf of the Underwriters, shall have received
on the Closing Date the opinions of (i) Orrick, Herrington & Sutcliffe LLP, and
(ii) Austin D. Kim, Vice President, General Counsel and Secretary of the
Company, dated the Closing Date, to the effect set forth in Exhibits A and B
hereto, respectively.
(c) The Representatives, on behalf of the Underwriters, shall have received
on the Closing Date the opinion of Cleary, Gottlieb, Steen & Hamilton, counsel
for the Underwriters (or other counsel acceptable to the Representatives), dated
the Closing Date, to the effect set forth in Exhibit C hereto.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the President or the Vice President and Treasurer of
the Company (or
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another officer acceptable to the Representatives, on behalf of the
Underwriters), dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Registration Statement, the Prospectus
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
Closing Date, with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(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, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus, 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, except as set forth
in or contemplated in the Prospectus.
(e) The Representatives, on behalf of the Underwriters, shall have
received on the Closing Date a letter from Ernst & Young LLP, independent public
accountants (or other independent public accountants acceptable to the
Representatives), dated the Closing Date, to the effect set forth in Exhibit D
hereto.
(f) (i) There shall not have been any change or decrease specified in
the letter referred to in paragraph (e) of this Section 5 or, (ii) subsequent to
the date of the Underwriting 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, in any case referred to in this paragraph (f), is,
in the judgment of the Representatives, on behalf of the Underwriters, so
material and adverse as to make it impractical or inadvisable to proceed with
the delivery or offering of the Offered Securities as contemplated by the
Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to the
Representatives, on behalf of the Underwriters, such further information,
certificates and documents as the Representatives, on behalf of the
Underwriters, 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 Representatives, on behalf of the Underwriters, and their
counsel, this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives,
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<PAGE>
on behalf of the Underwriters. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
offered Securities provided for in this Agreement is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5 hereof
is not satisfied or either of the events described in Sections 8(iii) or 8(iv)
has occurred or because of any refusal, inability or failure on the part of the
Company to perform any agreement in this Agreement or comply with any provision
in this Agreement other than by reason of a default by any of the Underwriters,
the Company will reimburse the Underwriters severally upon demand for all out-
of-pocket expenses (including reasonable fees and disbursements of counsel) that
shall have been reasonably incurred by them in connection with the proposed
purchase and sale of the Offered Securities and shall have no further
obligations to the Underwriters with respect thereto.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the 1933 Act or the 1934 Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the 1933 Act, the 1934 Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
as incurred each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be able in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof, and (ii) such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Offered Securities which are the subject thereof, if such person did not
receive a copy (in any case where delivery of a prospectus is required by the
1933 Act) of the Prospectus (or the Prospectus as amended or supplemented),
excluding documents incorporated therein by reference, at or prior to the
confirmation of the sale of such Offered Securities, and the Prospectus (or the
Prospectus as amended or supplemented) would have cured the defect giving rise
to such loss, claim, damage or liability, unless such failure to deliver the
Prospectus (or the Prospectus as amended or supplemented) was a result of
noncompliance by the Company with Section 4(d) of the Agreement. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the 1933 Act or the
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1934 Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, 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 7. 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 reasonably 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 7 for any legal
or other expenses 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 the
Representatives in the case of subparagraph (a), representing the indemnified
parties who are parties to such action), (ii) the indemnifying party shall not
have employed counsel satisfactory 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) and (iii) is applicable, such liability shall only be 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 effected without
its written consent, but if settled with such consent or if there shall 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 by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability arising out of such proceeding.
7
<PAGE>
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 7 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 Offered Securities 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 the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. 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 the
Underwriters, the parties' relative intent, 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 the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capital allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to in the first sentence of this paragraph (d). Notwithstanding any
other provision of this paragraph (d), (y) no Underwriter shall be obligated to
make contributions hereunder that in the aggregate exceed the total public
offering price of the offered Securities purchased by such Underwriter under
this Agreement, less the aggregate amount of any damages that such Underwriter
has otherwise been required to pay in respect of the same or any substantially
similar claim, and (z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute hereunder are several in proportion to
their respective underwriting obligations and not joint. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of the
1933 Act shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the 1933 Act
or the 1934 Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (y) and
(z) of this paragraph (d). 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 paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission to so 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 paragraph (d).
8. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Offered Securities, if prior to such
time (i) trading in securities generally on
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<PAGE>
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 either by Federal or New York or California
State authorities, (iii) there shall have occurred any downgrading in the rating
accorded the Company's debt securities by Moody's Investors Service, Inc. or
Standard and Poor's Corporation, (iv) 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
Representatives, impracticable to market the Offered Securities.
9. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made by or on
behalf of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Offered Securities. The provisions of Sections 6 and 7
hereof shall survive the termination or cancellation of this Agreement.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed to the address furnished to the Company in writing for
the purpose of communications hereunder, or, if sent to the Company, will be
mailed, delivered or telegraphed to it at 600 Montgomery Street, San Francisco,
California 94111, attention of the Treasurer.
11. 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 7 hereof, and no
other person will have any right or obligation hereunder. No purchaser of
Offered Securities from any Underwriter shall be deemed a successor because of
such purchase.
12. Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of California.
9
<PAGE>
EXHIBIT A
FORM OF OPINION OF
ORRICK, HERRINGTON & SUTCLIFFE LLP
The opinion of Orrick, Herrington & Sutcliffe LLP, to be delivered
pursuant to Section 5(b)(i) of the Underwriting Agreement, shall be to the
effect that:
(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) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the (Senior) (Subordinated) Indenture has been duly
authorized, executed and delivered by the Company and constitutes the valid
and binding agreement of the Company, enforceable in accordance with its
terms;
(iv) the Offered Securities have been duly authorized by all
necessary corporate action for issuance and sale pursuant to the
Underwriting Agreement and, when (the Offered Securities have been executed
and authenticated as specified in the (Senior) (Subordinated) Indenture and
delivered pursuant to the provisions of the Underwriting Agreement) (the
Offered Warrants have been executed and countersigned in accordance with
the Warrant Agreement and delivered pursuant to the provisions of the
Underwriting Agreement), the Offered Securities 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 ((Senior) (Subordinated)
Indenture) (Warrant Agreement));
((v) the Warrant Securities issuable upon exercise of the
Offered Warrants have been duly authorized by all necessary corporate
action and, when executed and authenticated as specified in the (Senior)
(Subordinated) Indenture and delivered pursuant to the provisions of the
Warrant Agreement, the Warrant Securities 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 ((Senior) (Subordinated)
Indenture));
(vi) the (Senior) (Subordinated) Indenture is qualified under
the Trust Indenture Act of 1939;
(vii) the terms and provisions of the (Offered Securities)
(Warrant Securities issuable upon exercise of the Offered Warrants) conform
in all material respects to the description thereof contained in the
Prospectus and the information in the Prospectus under the caption
["Description of ____________,"] to the extent that it constitutes matters
of law and legal conclusions and to the extent that it summarizes the
documents referred to therein, has been reviewed by us and is correct in
all material respects;
A-1
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(viii) the execution and delivery of the Underwriting Agreement,
the (Senior)(Subordinated) Indenture and the (Offered Securities)(Warrant
Securities issuable upon exercise of the Offered Warrants) did not, and 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;
(ix) 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 the Underwriting Agreement, the
(Senior)(Subordinated) Indenture and the (Offered Securities)(Warrant
Securities issuable upon exercise of the Offered Warrants), except such as
have been obtained under the 1933 Act and such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters, and except
those which, if not made or obtained, will not, in the aggregate, have a
material adverse effect on the transactions contemplated by the
Underwriting Agreement or on the financial condition of the Company and its
subsidiaries, taken as a whole;
(x) the Registration Statement is effective under the 1933 Act
and, to the best of their knowledge, no proceedings for a stop order have
been instituted or are pending or threatened under Section 8(d) of the 1933
Act and any required filing of the Prospectus pursuant to Rule 424(b) has
been made in accordance therewith;
(xi) the Registration Statement, the Prospectus and each
amendment thereof or supplement thereto (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, 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
1933 Act, the 1934 Act and the Trust Indenture Act of 1939 and the rules
and regulations of the Commission thereunder; and
(xii) 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 1934 Act, and the rules and regulations of the
Commission thereunder.
In addition, such 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
A-2
<PAGE>
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 as to both clauses A and B above that
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 Form T-1).
Such opinion shall also cover, if applicable to a particular issue of
Offered Securities, matters relating to listing on the New York Stock Exchange
and such other matters as the Representatives 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 Underwriters; 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.
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EXHIBIT B
FORM OF OPINION OF
AUSTIN D. KIM
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
OF
TRANSAMERICA FINANCE CORPORATION
The opinion of Austin D. Kim, Vice President, General Counsel and
Secretary of Transamerica Finance Corporation, to be delivered pursuant to
Section 5(b)(ii) of the Underwriting Agreement shall be to the effect that:
(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 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 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 Subsidiary 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 the Underwriting Agreement,
the Indentures and the (Offered Securities)(Warrant Securities issuable
upon exercise of the Offered Warrants), 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 any 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 be bound, or result in the material
B-1
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violation by the Company or any of its 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) to the best of his knowledge, there is no pending or
threatened action, suit or proceeding before or by any court or
governmental 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 which is not adequately disclosed on the
Prospectus or 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 his attention that would lead him to
believe that the Registration Statement, or any amendment thereof (except
the financial statements and schedules and other financial and statistical
data included therein and the States of Eligibility of the Trustees on Form
T-1, as to which no opinion need be expressed), 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 no opinion need be expressed) at the date of
the Underwriting Agreement or 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.
B-2
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EXHIBIT C
FORM OF OPINION OF COUNSEL TO THE UNDERWRITER
The opinion of counsel to the Underwriters, to be delivered pursuant
to Section 5(c) of the Underwriting Agreement, shall be to the effect that:
(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 the Underwriting Agreement
have been duly authorized by all necessary corporate action of the Company
and the Underwriting Agreement has been duly executed and delivered by the
Company;
(iii) the execution and delivery of the (Senior) (Subordinated)
Indenture have been duly authorized by all necessary corporate action of
the Company and such Indenture has been duly executed and delivered by the
Company, qualified under the Trust Indenture Act of 1939; and
(iv) the execution and delivery of the Offered Securities (and
the Warrant Securities) have been duly authorized by all necessary
corporate action of the Company and the Offered Securities (and the Warrant
Securities) have been duly executed and delivered by the Company.
They have participated in conferences and telephone conversations with
representatives of the Company, representatives of counsel for the Company and
representatives of the Underwriters, 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 any such other matters as
the Representatives may reasonably require.
C-1
<PAGE>
Such counsel expresses no opinion as to laws other than the laws of
the State of New York, the federal law of the United States of America and the
General Corporation Law of the State of Delaware.
C-2
<PAGE>
EXHIBIT D
FORM OF LETTER OF
INDEPENDENT ACCOUNTANTS TO THE COMPANY
The letter of the independent accountants to the Company to be
delivered pursuant to Section 5(e) of the Underwriting Agreements shall confirm
that they are independent accountants within the meaning of the 1933 Act and the
1934 Act and the related published rules and regulations thereunder and shall be
to the effect that:
(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
1933 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
(3) as of a date within five days of the date of such letter
there was any change in the capital stock or long-term debt of the
Company and its
D-1
<PAGE>
subsidiaries or any decrease in consolidated net assets as compared
with the amounts shown on the latest balance sheet of the Company and
its 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 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 the Representatives;
(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 the 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 and
accounting matters, and providing 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.
D-2
<PAGE>
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 Harris 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
<PAGE>
Company hereunder 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
----------------------------------------------------------------
to the Purchaser.
- ----------------
(a) Solicitations as Agent. Following the Commencement Date
----------------------
(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.
2
<PAGE>
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 Cleary, Gottlieb, Steen & Hamilton, counsel
for the Agent, One Liberty Plaza, New York, N.Y. 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
----------------------
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.
3
<PAGE>
2. Representations and Warranties. The Company represents and
------------------------------
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.
4
<PAGE>
(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]
-------------------------
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
5
<PAGE>
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
6
<PAGE>
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
7
<PAGE>
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
Orrick, Herrington & Sutcliffe LLP and Austin D. Kim, 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
8
<PAGE>
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,
Ernst & 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.
9
<PAGE>
4. Conditions to the Obligations of the Agent. The obligations of
------------------------------------------
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
Orrick, Herrington & Sutcliffe LLP and Austin D. Kim, 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 Cleary, Gottlieb, Steen &
Hamilton, 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.
10
<PAGE>
(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 Orrick, Herrington & Sutcliffe
LLP and Austin D. Kim, 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 Cleary, Gottlieb, Steen & Hamilton,
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
<PAGE>
(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
<PAGE>
(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 satisfactory 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
<PAGE>
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
<PAGE>
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 Moody's 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
<PAGE>
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 600
Montgomery Street, San Francisco, California 94111, 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
<PAGE>
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
<PAGE>
Schedule 1
Transamerica Finance Corporation
Medium-Term Notes, Series __
Commission Schedule
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
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......................................... *
</TABLE>
* At a rate to be agreed by the Company and the Agent
18
<PAGE>
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 Harris 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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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:
<TABLE>
<CAPTION>
Settlement Procedure Time
-------------------- ----
<S> <C>
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
<CAPTION>
Settlement Procedure Time
-------------------- ----
<S> <C>
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
J-L 5:00 P.M. on settlement date
</TABLE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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:
<TABLE>
<CAPTION>
Settlement Procedure Time
-------------------- ----
<S> <C>
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
</TABLE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
EXHIBIT B
TRANSAMERICA FINANCE CORPORATION
Medium-Term Notes, Series __
Due Nine Months or More from Date of Issue
TERMS AGREEMENT
_________, ____
Transamerica Finance Corporation
600 Montgomery Street
San Francisco, California 94111
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
<PAGE>
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
<PAGE>
EXHIBIT C
FORM OF OPINION OF
ORRICK, HERRINGTON & SUTCLIFFE LLP
The opinion of Orrick, Herrington & Sutcliffe 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
<PAGE>
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
<PAGE>
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
<PAGE>
EXHIBIT D
FORM OF OPINION OF
AUSTIN D. KIM
VICE PRESIDENT GENERAL COUNSEL AND SECRETARY
OF
TRANSAMERICA FINANCE CORPORATION
The opinion of Austin D. Kim 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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
EXHIBIT 4.3
Form of Debt Security
[Face of Security]
TRANSAMERICA FINANCE CORPORATION
[If applicable, insert--FOR PURPOSES OF THE ORIGINAL ISSUE DISCOUNT
---------------------
PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, THE ISSUE PRICE OF THIS
SECURITY IS ____% OF ITS PRINCIPAL AMOUNT AT STATED MATURITY SET FORTH BELOW
(ITS "PRINCIPAL AMOUNT"), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS ____% OF ITS
PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____.___% AND THE ISSUE DATE IS
__________, ____]
[If the Security is a Global Security, insert--THIS NOTE IS A GLOBAL
-----------------------------------------------
SECURITY. IT IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY (AS HEREINAFTER DEFINED) OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY TO A
SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
[Unless this Note is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment and any certificate
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.]
_________________________
_______________________________________
_________ $__________
Transamerica Finance Corporation, a Delaware Corporation (herein
called the "Company," which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to [If the Security is to be in registered form, insert--
-----------------------------------------------------
______________________________, or registered assigns] [If the Security is to be
------------------------
in bearer form, insert-- the bearer hereof upon surrender], the principal sum of
- ------------------------
____________________ Dollars on ____________________.
1
<PAGE>
[If the Security is to bear interest at a fixed rate prior to
------------------------------------------------------------
maturity, insert--, and to pay interest thereon from __________ or from the most
- ------------------
recent Interest Payment Date to which interest has been paid or duly provided
for semi-annually on ______________ and ______________ in each year commencing
______________, at the rate of ____% per annum until the principal hereof is
paid or made available for payment.]
[If the Security is to bear interest at an adjustable rate prior to
------------------------------------------------------------------
Maturity, insert--, and to pay interest thereon from ______________ or from the
- ------------------
most recent Interest Payment Date to which interest has been paid or duly
provided for, at a rate per annum determined as provided below, semi-annually on
______________ and ______________ in each year, commencing __________, ____,
until the principal hereof is paid or made available for payment.]
[Interest on the Securities is payable at the rate of __% per annum
from __________, ____ through __________, ____ and for each __-month period from
__________, ____ through __________, ____ at a rate per annum (rounded to the
nearest five hundredths of a percentage point) equal to ____% of the __ Year
Treasury Rate (as defined below) or the Alternate Treasury Rate (as defined on
the reverse side hereof), as the case may be, or such higher rate as may be
established by the Company as set forth below.]
[The "____ Year Treasury Rate" applicable to any ____-month period
commencing _________, ____, . . . or ____ shall be the most recent Weekly
Treasury Rates for constant maturities of ____ years published during the period
of the ten calendar days ending on the __________ (or, if such __________ is not
a Business Day, the next preceding Business Day) next preceding such __________.
"Weekly Treasury Rates" means the weekly average yield to maturity values
adjusted to a constant maturity of a fixed number of years as read from the
yield curves of the most actively traded marketable U.S. Treasury fixed interest
rate securities constructed daily by the U.S. Treasury Department as published
by the Federal Reserve Board or any Federal Reserve Bank or by any United States
Department or agency. In __________, ____, Weekly Treasury Rates were published
by the Federal Reserve Board weekly in "Statistical Release H.15 (519), Selected
Interest Rates" as "U.S. Government securities -- Treasury constant
maturities."]
[If the Trustee determines in good faith that for any reason the
Weekly Treasury Rates for constant maturities of __ years are not published as
provided above during the ten calendar day period specified above preceding the
__________ preceding the ____________ on which any such __-month period
commences, interest on the Securities for such __-month period will be based on
the Alternate Treasury Rate determined as of such __________ (or, if such
__________ is not a Business Day, the next preceding Business Day) in the manner
set forth on the reverse hereof. As promptly as practicable, the Trustee shall
calculate or cause to be calculated the __ year Treasury Rate or the Alternate
Treasury Rate applicable to each __-month period. The determination of such
Rate shall be confirmed in writing by independent accountants of recognized
standing selected by the Trustee and such Rate as so confirmed shall be binding
upon the Company and the Holders.]
[If the Trustee determines in good faith that for any reason neither
the ____ Year Treasury Rate nor the Alternate Treasury Rate can be determined
for any __-month period, then the rate of interest shall be determined by the
Company. In addition, the Company may elect a higher rate of interest for the
Securities than that calculated on the basis of the ____ Year Treasury Rate or
the Alternate Treasury Rate. The Company shall make such interest rate
determinations
2
<PAGE>
or elections by delivery to the Trustee of an Officers' Certificate on or before
the __________ preceding commencement of the __-month period in which such
interest rate will apply.]
[After the interest rate for any __-month period has been determined,
the Trustee will cause such rate to be published in an Authorized Newspaper in
____________________ on or about each __________ prior to the commencement of
the __-month period to which it applies. The Company will cause notice of such
rate of interest to be enclosed with the interest payment checks next mailed to
the Registered Holders of the Securities after such rate has been determined.]
[If the Security is to bear interest at a floating rate above the
------------------------------------------------- --------------
secondary market rate for Treasury Bills or the auction rate for such Bills,
- ----------------------------------------------- ----------------------------
insert--, and to pay interest thereon, to the extent permitted by law, at the
- --------
rate of [____ basis points above] [(____)% of] the weighted average per annum
[discount Rate] [bond yield equivalent rate] for direct obligations of the
United States with a maturity of __________ computed on the basis of a [365 or
366-day year, as the case may be,] [360-day year] [and applied on a daily basis]
(the "____ Treasury Bill Rate") [based on results of the most recent auction of]
[set in the secondary market for] ____ [month] [day] U.S. Treasury Bills as
published by the Board of Governors of the Federal Reserve System or (if not so
published) as reported by the Department of the Treasury or any Federal Reserve
Bank or the United States Government department or agency. [The interest rate
will be adjusted on the calendar day following each auction of __________
[month] [day] U.S. Treasury Bills.] [The interest rate will be adjusted on the
calendar day following each auction of __________ [month] [day] U.S. Treasury
Bills.] [The interest rate in effect for the period from __________ through the
date of the first __________ auction after such date shall be based upon the
results of the most recent ____________ auction prior to such date; and the
interest rate in effect for the ____ days immediately prior to Maturity shall be
based upon the results of the most recent __________ auction held prior to the
____ days preceding Maturity.]
[If the Security is to bear interest at a floating rate, insert--In
------------------------------------------------- --------------
the event that the [____-day [__________] Treasury Bill Rate ceases to be
published or reported as provided above, then the rate of interest in effect at
the time of the last such publication or report will remain in effect until such
time, if any, as such Treasury Bill Rate shall again be so published or
reported.]
[The interest rate applicable to each ____ will be determined as
promptly as practicable by the Company as described herein and the Company will
furnish the Trustee with an Officers' Certificate setting forth the interest
rate applicable to each __________ promptly after such rate has been
determined.]
[If the Security is to bear interest prior to Maturity, insert-- The
-------------------------------------------- ------------------
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security is registered at the close of business on the ____ or ____
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.]
[If the Security is not to bear interest prior to Maturity, insert--
------------------------------------------------ --------- --------
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment
3
<PAGE>
to the date payment of such principal has been made or duly provided for.]
Payment of the principal of (and premium, if any, on) and [any such]
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in ____________________, in such coin or currency of
[the United States of America] as at the time of payment is legal tender for
payment of public and private debts [; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture referred to on the
reverse hereof, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: TRANSAMERICA FINANCE CORPORATION
By_______________________________
[Title]
Attest and Countersign:
____________________________
Secretary
4
<PAGE>
[Form of Reverse of Security.]
TRANSAMERICA FINANCE CORPORATION
_____________________
____________________________________
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture dated as of [April 1, 1991] (herein called the
"Indenture"), between the Company and [Harris Trust and Savings Bank] [The Bank
of New York as successor trustee to First Interstate Bank of California,
formerly First Interstate Bank, Ltd.], as trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [,
limited in aggregate principal amount to $__________].
[If the Security is to be subordinated, insert--The indebtedness evidenced
---------------------------------------------
by this Security is, to the extent and in the manner set forth in the Indenture,
expressly subordinated and subject in right of payment to the prior payment in
full of all Senior Indebtedness (as defined in the Indenture) of the Company.
This Security is issued subject to such provisions of the Indenture, and each
Holder of this Security, by accepting the same, agrees to and shall be bound by
such provisions and authorizes and directs the Trustee on the Holder's behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
such subordination as provided in the Indenture and appoints the Trustee such
Holder's attorney-in-fact for any and all such purposes.]
[If the Security is to bear interest at an adjustable rate prior to
----------------------------------------- ------------------------
Maturity, insert--If the Trustee determines in good faith for any reason that
- ------------------
the Weekly Treasury Rates for ____ year constant maturities are not published by
the Federal Reserve Board or any Federal Reserve Bank or any United States
Government department or agency during the period of ten calendar days ending on
the __________ (or, if the __________ is not a Business Day, the next preceding
Business Day) next preceding the __________ on which a __-month period for which
the interest rate on the Securities is being fixed commences, the Securities
shall bear interest, at a rate per annum (rounded to the nearest five hundredths
of a percentage point) during such __-month period of ____% of the Alternate
Treasury Rate for such __-month period.]
[The "Alternate Treasury Rate" applicable to any __-month period
commencing __________, ____, . . . and ____ means the yields to maturity of the
daily closing bids (or less frequently if daily quotations shall not be
available), quoted by at least three recognized U.S. Government securities
dealers selected by the Trustee, during a period of seven calendar days, for all
marketable U.S. Treasury securities dealers selected by the Trustee, during a
period of seven calendar days, for all marketable U.S. Treasury securities with
a maturity date of at least __
1
<PAGE>
months but not more than __ months from the date of the determination (other
than securities which can, at the option of the holder, be surrendered at face
value in payment of any federal estate tax). The seven calendar day period shall
be the seven calendar days ending on the __________ (or, if the __________ is
not a Business Day, the next preceding Business Day) next preceding the
__________ on which a __-month period for which the interest rate on the
Securities is being fixed commences. Maturity means the date on which the
security becomes due.]
[In determining that any Weekly Treasury Rates are not published, the
Trustee may rely conclusively on any written advice from the United States
Treasury to such effect.]
[If the Security is to be subject to redemption only at the option of
--------------------------------------------------- ----------------
the Company or any sinking fund redemption will be at the same prices, insert--
- ------------------------------------------ -----------------------------------
The Securities of this series are subject to redemption upon not less than 30
days' notice provided in the manner set forth in the Indenture, [(1) on
__________ in any year commencing with the year ____ and ending with the year
____ through operation of the sinking fund for this series at the Redemption
Price equal to 100% of the principal amount, and (2)] at any time [on or after
__________, ____], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
If redeemed [on or before __________, ____%, and if redeemed] during the 12-
month period beginning __________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
and thereafter at a Redemption Price equal to __% of the principal amount
together in the case of any such redemption [(whether through operation of the
sinking fund or otherwise)] with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities of record at the close of
business on the relevant record dates referred to on the face hereof, all as
provided in the Indenture.]
[If the Security is to be subject to redemption at the option of the
------------------------------------------------- -----------------
Company and pursuant to a sinking fund at different prices, insert--The
- ----------------------------------------- --------------------------
Securities of this series are subject to redemption upon not less than 30 days'
notice by mail, (1) on __________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after __________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning __________ of the years indicated,
2
<PAGE>
Redemption Price Redemption Price
For Redemption For Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- --------------------- -------------------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities of record at the close of
business on the relevant record dates referred to on the face hereof, all as
provided in the Indenture.]
[If there is to be a sinking fund, insert--The sinking fund for this
------------------------------------------
series provides for the redemption on __________ each year beginning with the
year ____ and ending with the year ____ of [not less than] $__________
("mandatory sinking fund") and not more than $__________] aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [mandatory] sinking fund payments
may be credited against subsequent [mandatory] sinking fund payments otherwise
required to be made.]
[If the Security is to be redeemable in part, insert--In the event of
-------------------------------------------- --------
redemption of this Security in part only, a new Security or Securities of this
series for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
[If the Security is to bear interest at a floating rate, insert--If on
------------------------------------------------- --------------
any date on which a [__-day] [__________] Treasury Bill Rate is to be
determined, such rate is for any reason not determinable as provided on the face
hereof, (a) the Company, at its option, may redeem the Security upon not less
than __ nor more than __ days' prior notice, as a whole [or from time to time in
part in increments of $__________,] at a redemption price equal to [insert
appropriate prices and table, if any], together in the case of any such
redemption with accrued interest to the Redemption Date (but interest
installments whose Stated Maturity is on the Redemption Date will be payable to
the Holder of such Security of record at the close of business on the relevant
record date referred to on the face hereof), all as provided in the Indenture,
such right of redemption to be exercisable until __________; (b) the Security
shall be subject to repayment in whole [or in part in increments of $__________]
on any __________ or __________, at the option of the Holder thereof, at a price
equal to [insert appropriate repayment prices and table, if any] (the "Repayment
Price"), together with interest payable to the Repayment Date (but interest
installments whose Stated Maturity is on the Repayment Date will be payable to
the Holder of such Security of record at the close of business on the relevant
record date referred to on the face hereof), all as provided in the Indenture,
such option to be exercisable until __________; (c) the rate of interest in
effect at the time a [__-day] [__] Treasury Bill Rate becomes indeterminable
shall remain in effect until a new [__-day] [__________] Treasury Bill Rate may
be determined as provided on the face hereof, and (d) the Company will promptly
deliver an Officers' Certificate to the Trustee certifying its inability to
determine the [__-day] [__________] Treasury Bill Rate and notify the Holders
3
<PAGE>
of such inability and of the redemption, repayment and interest rate provisions
set forth in (a), (b), and (c) above.]
[If the Security is to be subject to repayment at the option of the
------------------------------------------------ -----------------
Holder other than when a floating rate is not determinable, insert--This
- ----------------------------------------- --------------------------
Security is also subject to repayment in whole [or in part in increments of
$__________] on [__________, ____, . . . or ____,] [any __________ or
__________, commencing on __________,] at the option of the Holder hereof at a
price equal to [insert appropriate repayment prices and table, if any] (the
"Repayment Price"), together with interest payable to the Repayment Date (but
interest installments whose Stated Maturity is on the Repayment Date will be
payable to the Holder of such Security of record at the close of business on the
relevant record date referred to on the face hereof), all as provided in the
Indenture.]
[If the Security is to be subject to repayment at the option of the
------------------------------------------------ -----------------
Holder, insert--To be repaid at the option of the Holder, the Company must
- ----------------
receive this Security, with the form of "Option to Elect Repayment" hereon duly
completed, at an office or agency of the Company maintained for that purpose in
____________________ (or at such other place of which the Company shall from
time to time notify the Holder of this Security) not less than __ nor more than
__ days prior to the Repayment Date. The exercise of the repayment option by
the Holder shall be irrevocable.
[If the Security is not to be subject to redemption at the option of
-------------------------------------------------- ----------------
the Company, insert--The Securities are not redeemable at the option of the
- ---------------------
Company prior to Maturity.]
[If the Security is not to be an Original Issue Discount Security,
---------------------------------------------- ------------------
insert--If an Event of Default with respect to Securities of this series shall
- --------
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is to be an Original Issue Discount Security, insert-
--------------------------------------------------- ----------------
- -If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. [Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series under the
Indenture to be affected at any time by the Company with the consent of the
Holders of not less than a majority in aggregate principal amount at maturity of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount at maturity of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon
4
<PAGE>
such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any, on)
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
[If the Security is to be in registered form, insert--As provided in
-------------------------------------------- ------
the Indenture and subject to certain limitations therein set forth, the transfer
of this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
any place where the principal of (and premium, if any, on) and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and,
thereupon one or more new Securities of this series, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.]
[The Securities of this series are issuable only in registered form
[without coupons] in denominations of $__________ [and any integral multiple]
[or increments of $__________ in excess] thereof. As provided in the Indenture
and subject to certain limitations therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of Securities of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.]
[No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.]
[Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.]
[If the Security is a Global Security, insert--"Global Security" and
------------------------------------ --------
"Global Securities" means a Security or Securities evidencing all or a part of a
series of Securities, issued to the Depositary (as hereinafter defined) for such
Series or its nominee, and registered in the name of such Depositary or its
nominee. "Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as the depositary by the Company.
No holder of any beneficial interest in this Note held on its behalf
by a Depositary or a nominee of such Depositary shall have any rights under the
Indenture with respect to such Global Security, and such Depositary or nominee
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
5
<PAGE>
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary as Holder of
any Security.
This Note is exchangeable, in whole but not in part, for Notes
registered in the names of Persons other than the Depositary or its nominee or
in the name of a successor to the Depositary or a nominee of such successor
depositary only if (i) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for this Note or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, in either case, a successor depositary is
not appointed by the Company within 90 days, (ii) the Company in its discretion
at any time determines not to have all of the Notes of this series represented
by one or more Global Security or Securities and notifies the Trustee thereof,
or (iii) an Event of Default has occurred and is continuing with respect to the
Notes of this series. If this Note is exchangeable pursuant to the preceding
sentence, it shall be exchangeable for Notes issuable in authorized
denominations and registered in such names as the Depositary holding this Note
shall direct. Subject to the foregoing, this Note is not exchangeable, except
for a Note or Notes of the same aggregate denominations to be registered in the
name of such Depositary or its nominee or in the name of a successor to the
Depositary or a nominee of such successor depositary.]
[If the Security is to be in bearer form, insert--The Securities are
-------------------------------------------------
issuable only as unregistered Securities payable to the bearer thereof [without
coupons] in denominations of $__________ [and any integral multiple] [or
increments of $__________ in excess] thereof. As provided in the Indenture and
subject to certain limitations therein set forth, the Securities are
exchangeable for a like aggregate principal amount of new Securities of
authorized denominations, as requested by the Holder surrendering the same.
[No service charge will be made for any such exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.]
[This Security is transferable by delivery. The Company, the Trustee
and any agent of the Company or the Trustee may treat and consider the bearer
hereof as the absolute owner of this Security for the purpose of receiving
payment of the principal hereof and interest, if any, hereon and for all other
purposes, whether or not this Security be overdue, and neither the Company nor
the Trustee, nor any such agent shall be affected by notice to the contrary.]
[The Indenture entitles Holders to receive annual reports with respect
to the Trustee's eligibility and qualifications to serve as Trustee by filing
their names and
addresses with the Trustee for that purpose within two years preceding the
mailing of any such annual report.]
No recourse shall be had for the payment of the principal of (and
premium, if any, on) or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived
6
<PAGE>
and released.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security, including without limitation the obligation of the
Company contained herein to pay the principal of (and premium, if any, on) and
interest on this Security in accordance with the terms hereof and of the
Indenture, shall be construed in accordance with and governed by the laws of the
State of California.
[Form of Trustee's Certificate of Authentication.]
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
________________________________
________________________________
________________________________
As [Authenticating Agent for]
the Trustee
By______________________________
Authorized Officer
7
<PAGE>
[Form of Option to Elect Repayment.]
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security (or portion thereof specified below) pursuant to
its terms at a price equal to the principal amount thereof, together with
interest to the Repayment Date, to the undersigned, at
_________________________________
_________________________________
(Please Print or Typewrite Name and Address of the Undersigned)
For this Security to be repaid, the Company must receive this
Security, with this "Option to Elect Repayment" form duly completed, at an
office or agency of the Company maintained for that purpose in
____________________, or at such other place of which the Company shall from
time to time notify the Holder, no less than __ days nor more than __ days prior
to [__________, ____, . . . or ____] [the __________ or __________ (commencing
on __________)].
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be $__________, or an
integral multiple of $__________) which the Holder elects to have repaid:
$__________.
Dated: __________
________________________________________
Note: The signature must correspond with
the name as written upon the face of the
Security in every particular without
alteration or enlargement.
1
<PAGE>
EXHIBIT 4.4
[Face of Senior Medium-Term Note]
IF INDICATED ON THE FACE HEREOF THAT THIS NOTE IS A GLOBAL SECURITY, IT IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES HEREINAFTER
DESCRIBED AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
IN ADDITION, IF INDICATED ON THE FACE HEREOF THAT THIS NOTE IS A GLOBAL
SECURITY, UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY" AND "ISSUE PRICE"
BELOW WILL BE COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
REGISTERED REGISTERED
NUMBER: PRINCIPAL AMOUNT: $
CUSIP #: SPECIFIED CURRENCY:
TRANSAMERICA FINANCE CORPORATION
SENIOR MEDIUM-TERM NOTE, SERIES __
Floating Rate Note [_] ______%Fixed Rate Note [_]
Original Issue Date:
Interest Accrual Date: Maturity Date:
Issue Price:
New Notice of
Maturity Renewal
Redemption Date(s): Redemption Price(s): Date(s): Date(s):
------------ -------------
Authorized Denominations (Only
applicable if Specified Currency
is other than U.S. dollars):
Repayment Date(s): Repayment Price(s): Interest Payment Period:
Interest Payment
Dates:
1
<PAGE>
Original Issue Discount Note: Global Security:
[_] Yes [_] No [_] Yes [_] No
Total Amount of OID:
Yield to Maturity:
Exchange Rate Agent:
(Only applicable if this is a Floating Rate Note):
Initial Interest Rate: Spread (plus or minus):
Spread Multiplier:
Maximum Interest Rate:
Index Maturity:
Minimum Interest Rate:
Calculation Rate Agent:
Base Rate(s):
If LIBOR:
Designated LIBOR Page:
[_]LIBOR Reuters
[_]LIBOR Telerate
Index Currency:
Interest Reset Period:
Interest Reset Dates:
Additional Terms:
REGISTERED OWNER:
Transamerica Finance Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (the "Company"), for value received,
hereby promises to pay to the Registered Owner identified above, or registered
assigns, the "Principal Amount," as set forth above, on the Maturity Date (as
defined on the reverse hereof), and to pay interest thereon as described herein.
The principal of (and premium, if any) and interest on this Note are payable
by the Company in such coin or currency specified above as at the time of
payment shall be legal tender for the payment of public and private debts (the
"Specified Currency"). If the Specified Currency is other than U.S. dollars, the
Company will arrange to have all such payments converted into U.S. dollars in
the manner and subject to the limitations described below. Notwithstanding the
foregoing, the Holder hereof may elect to receive all payments in respect hereof
in the Specified Currency by delivery of a written request
2
<PAGE>
to the Trustee not later than fifteen calendar days prior to the applicable
payment date. Such election will remain in effect until revoked by written
notice to the Trustee received not later than fifteen calendar days prior to the
applicable payment date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH IN
FULL BELOW, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT
AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been manually executed by
or on behalf of the Trustee under the Indenture, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF TRANSAMERICA FINANCE CORPORATION
AUTHENTICATION
This is one of the Securities of the
series designated herein referred to in By___________________________________
the within-mentioned Indenture. Senior Vice President
HARRIS TRUST AND SAVINGS BANK,
as Trustee
Attest and Countersign:
By___________________________ By___________________________________
Authorized Signatory Assistant Secretary
[Corporate Seal]
3
<PAGE>
[Reverse of Senior Medium-Term Note]
1. This Note is one of a duly authorized issue of debt securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of April 1, 1991 (the "Indenture"), between
the Company and Harris Trust and Savings Bank, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all Indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of a series designated as Medium-
Term Notes, Series __ of the Company (herein called the "Notes"). The Notes are
limited (except as otherwise provided in the Indenture) to the aggregate
principal amount established from time to time by the Board of Directors of the
Company. The Notes may be issued at various times with different maturity dates
and different principal repayment provisions, may bear interest at different
rates, may be payable in different currencies and may otherwise vary, all as
provided in the Indenture.
The Maturity Date of this Note is as shown on the face hereof; provided,
--------
however, that the Maturity Date may be renewed, at the option of the Holder, to
- -------
the New Maturity Date or Dates, if any, shown on the face hereof if the Holder
so elects, in the manner specified herein, prior to the applicable Notice of
Renewal Date shown on the face hereof. Such election will be irrevocable and
will be binding upon each subsequent Holder of this Note. Notwithstanding the
foregoing, the New Maturity Dates shall not be any date that is more than
fifteen years from the Original Issue Date set forth on the face hereof. If no
New Maturity Date or Dates are shown on the face hereof, the Maturity Date of
this Note is not subject to renewal. As used in this Note, the term "Maturity
Date" means the Maturity Date shown on the face hereof until such time, if any,
as the Holder hereof has duly renewed the maturity of this Note, and thereafter
shall mean such New Maturity Date.
Any such election to renew the Maturity Date of this Note will be
effective only if notice thereof is provided to the Company in the manner
described below. The Maturity Date of this Note may be renewed, in whole or in
part, at the option of the Holder hereof, to each successive New Maturity Date
shown on the face hereof if the Holder presents a duly completed and executed
notice, in the form below entitled "Form of Option to Renew Maturity," together
with this Note, to the Corporate Trust Office of the Trustee in the City of
Chicago, or such other address as the Company shall from time to time notify the
Holders of Notes, not less than ten nor more than 30 days prior to the
applicable Notice of Renewal Date shown on the face hereof, provided, however,
-------- -------
that if a Holder of this Note does not make an election with respect to all or a
portion of the Note with respect to a specified New Maturity Date, this Note or
such portion may not be renewed with respect to a subsequent New Maturity Date.
The Trustee will provide the Holder with a new Note with respect to that portion
which is being renewed indicating the New Maturity Date, and a new Note with
respect to that portion, if any, which is not being renewed indicating the
original Maturity Date. All questions as to the validity, eligibility
(including time of receipt) and acceptance of any option to renew the Maturity
Date of this Note will be determined by the Company, whose determination will,
to the extent permitted by law, be final and binding.
2. A. Unless otherwise specified on the face hereof, the Regular Record
Date with respect to any Interest Payment Date (as defined below) shall be the
date 15 calendar days immediately preceding such Interest Payment Date, whether
or not such date shall be a Business Day (as defined below). Interest which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name this Note is registered at the
close of business on the Regular Record Date next preceding such Interest
Payment Date; provided, however, that interest payable on the Interest Payment
-------- -------
Date occurring on the Maturity Date or earlier Redemption Date or Repayment Date
will be to the Person to whom principal shall be payable; provided, further,
-------- -------
that the first payment of interest on any Note originally issued between a
Regular Record Date and an Interest Payment Date or on an Interest Payment Date
will be made on the Interest Payment Date following the next succeeding Regular
Record Date to the registered owner on such next succeeding Regular Record Date.
Notwithstanding the foregoing, any interest which is payable but not punctually
paid or duly provided for on any Interest Payment Date shall forthwith cease to
be payable to the registered holder thereof on such Regular Record Date, and may
be paid to the Person in whose name such Note is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof having been given to the Holder of such
Note not less than 10 days prior to such Special Record Date, or may be paid at
any time in any other lawful manner, all as more fully provided in the
Indenture. Unless otherwise specified on the face hereof, "Business Day" means
any day, other than a Saturday or Sunday, that meets each of the following
applicable requirements: the day is (i) not a day on which banking institutions
are authorized or required by law or regulation to be closed in The City of New
York, (ii) with respect to
1
<PAGE>
Notes denominated in a Specified Currency other than U.S. dollars, (a) not a day
on which banking institutions are authorized or required by law or regulation to
close in the financial center of the country issuing the Specified Currency
(which in the case of the lawful currency of the member states of the European
Union that adopt the single currency in accordance with the Treaty establishing
the European Community, as amended by the Treaty on European Union (the "Euro")
shall be London and Luxembourg) and (b) a day on which banking institutions in
such financial center are carrying out transactions in such Specified Currency,
and (iii) with respect to LIBOR Notes, a London Banking Day. Unless otherwise
specified on the face hereof, "London Banking Day" means any day (i) if the
Index Currency (as defined below) is other than the Euro on which dealings in
deposits in such Index Currency are transacted in the London interbank market or
(ii) if the Index Currency is the Euro, any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
All percentages resulting from calculations will be rounded, if necessary, to
the nearest one hundred-thousandth of a percentage point, with five one-
millionths of a percentage point being rounded upwards, and all currency or
currency unit amounts used and resulting from such calculations on this Note
will be rounded to the nearest one-hundredth of a unit, with five one-
thousandths of a unit being rounded upwards.
B. If this is a Fixed Rate Note, the Company promises to pay interest
on the Principal Amount stated on the face hereof at the rate per annum shown on
the face hereof until such Principal Amount is paid or made available for
payment. The Company will pay interest semi-annually each March 1 and September
1 or, if otherwise specified on the face hereof, such other dates (each an
"Interest Payment Date"), commencing with the Interest Payment Date immediately
following the Original Issue Date shown on the face hereof (subject to the last
proviso in Section 2.A hereof) and on the Maturity Date or earlier Redemption
Date or Repayment Date. Interest will accrue from and including the most recent
Interest Payment Date or, if no interest has been paid or duly provided for,
from and including the Original Issue Date, in each case, to but excluding the
Interest Payment Date. Unless otherwise specified on the face hereof, the
amount of such interest payable on any Interest Payment Date shall be computed
on the basis of a 360-day year of twelve 30-day months.
C. If this is a Floating Rate Note, the Company promises to pay
interest on the Principal Amount stated on the face hereof at the rate per annum
equal to the Initial Interest Rate shown on the face hereof until the first
Interest Reset Date shown on the face hereof following the Original Issue Date
specified on the face hereof and thereafter at a rate applicable for the
specified Interest Reset Period determined in accordance with the Base Rate or
Rates specified on the face hereof and as applicable under the provisions below
under the heading "Determination of CD Rate," "Determination of Commercial Paper
Rate," "Determination of Federal Funds Rate," "Determination of LIBOR,"
"Determination of Prime Rate," "Determination of Treasury Rate," "Determination
of CMT Rate," or as otherwise specified on the face hereof depending upon
whether the Base Rate specified on the face hereof is CD Rate, Commercial Paper
Rate, Federal Funds Rate, LIBOR, Prime Rate, Treasury Rate, CMT Rate, or as
otherwise so specified, respectively, or at a rate determined by adding or
subtracting two or more Base Rates as adjusted, until the principal hereof is
paid or duly made available for payment. The Company will pay interest monthly,
quarterly, semi-annually or annually as specified on the face hereof under
"Interest Payment Period", commencing with the first Interest Payment Date
specified on the face hereof next succeeding the Original Issue Date (subject to
the last proviso in Section 2.A hereof), and on the Maturity Date or earlier
Redemption Date or Repayment Date. Unless otherwise provided on the face
hereof, the dates on which interest will be payable (each an "Interest Payment
Date") will be, in the case of Notes with a monthly Interest Payment Period, the
third Wednesday of each month; in the case of Notes with a quarterly Interest
Payment Period, the third Wednesday of March, June, September and December; in
the case of Notes with a semi-annual Interest Payment Period, the third
Wednesday of the two months specified on the face hereof; and in the case of
Notes with an annual Interest Payment Period, the third Wednesday of the month
specified on the face hereof; provided, however, that if an Interest Payment
-------- -------
Date would fall on a day that is not a Business Day, such Interest Payment Date
shall be the following day that is a Business Day, except that in case the Base
Rate is LIBOR, as specified on the face hereof, if such date falls in the next
calendar month, such Interest Payment Date shall be the immediately preceding
Business Day.
Unless otherwise specified on the face hereof, the interest payable on a
Floating Rate Note on each Interest Payment Date will include accrued interest
from and including the Original Issue Date or from and including the last date
in respect of which interest has been paid, as the case may be, to but excluding
such Interest Payment Date. Interest payable on the Maturity Date or earlier
Redemption Date or Repayment Date will include accrued interest to, but
2
<PAGE>
excluding, the Maturity Date or earlier Redemption Date or Repayment Date. Such
accrued interest will be calculated by multiplying the principal amount hereof
by an accrued interest factor. This accrued interest factor shall be computed by
adding the interest factors calculated for each day in the period for which
accrued interest is being calculated. Unless otherwise specified on the face
hereof, the interest factor (expressed as a decimal) for each such day shall be
computed by dividing the interest rate applicable to such day by 360 if the Base
Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate, LIBOR or Prime Rate,
as indicated on the face hereof, or by the actual number of days in the year if
the Base Rate is Treasury Rate or CMT Rate, as indicated on the face hereof.
Unless otherwise specified on the face hereof, if the Base Rate is a fixed rate,
interest hereon shall be computed on the basis of a 360-day year of twelve 30-
day months. The interest factor for Notes for which the interest rate is
calculated with reference to two or more Base Rates will be calculated in each
period in the manner specified on the face hereof. The interest rate in effect
on each day will be (i) if such day is an Interest Reset Date, the interest rate
with respect to the Interest Determination Date pertaining to such Interest
Reset Date or (ii) if such day is not an Interest Reset Date, the interest rate
with respect to the Interest Determination Date (as defined below) pertaining to
the next preceding Interest Reset Date, provided, however, that (a) the interest
-------- -------
rate in effect from the Original Issue Date to the first Interest Reset Date
will be the Initial Interest Rate and (b) unless otherwise specified on the face
hereof, the interest rate in effect for the ten calendar days immediately prior
to the Maturity Date or earlier Redemption Date or Repayment Date will be the
rate in effect on the tenth calendar day preceding the Maturity Date or earlier
Redemption Date or Repayment Date. Notwithstanding the foregoing, the interest
rate shall not be greater than the Maximum Interest Rate, if any, or less than
the Minimum Interest Rate, if any, shown on the face hereof. In addition, the
interest rate shall in no event be higher than the maximum rate, if any,
permitted by California law. Commencing with the first Interest Reset Date
specified on the face hereof following the Original Issue Date and thereafter
upon each succeeding Interest Reset Date specified on the face hereof, the rate
at which interest on a Floating Rate Note is payable shall be adjusted as
provided herein; provided, however, that if any Interest Reset Date would
-------- -------
otherwise be a day that is not a Business Day, such Interest Reset Date shall be
postponed to the next day that is a Business Day, except that if the Base Rate
is LIBOR and such Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day; and
provided, further, that if the Base Rate is Treasury Rate and the Interest Reset
- -------- -------
Date falls on a date which is an auction date, the Interest Reset Date shall be
the following day that is a Business Day.
Unless otherwise indicated on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date will be, if the Base
Rate is other than LIBOR or Treasury Rate, the second Business Day next
preceding such Interest Reset Date. Unless otherwise indicated on the face
hereof, the Interest Determination Date pertaining to an Interest Reset Date
will be, if the Base Rate is LIBOR, the second London Banking Day next preceding
such Interest Reset Date. Unless otherwise indicated on the face hereof, the
Interest Determination Date pertaining to an Interest Reset Date will be, if the
Base Rate is Treasury Rate, the day of the week in which such Interest Reset
Date falls on which Treasury bills (as defined below) of the Index Maturity
specified on the face hereof are auctioned. Treasury bills are normally
auctioned on Monday of each week, unless that day is a legal holiday, in which
case the auction is normally held on the following Tuesday, except that such
auction may be held on the preceding Friday. If, as a result of a legal
holiday, an auction is so held on the preceding Friday, such Friday will be the
Interest Determination Date pertaining to the Interest Reset Date occurring in
the next succeeding week.
Except as otherwise specified on the face hereof, on each Interest Reset
Date the rate of interest shall be the rate determined in accordance with the
provisions of the applicable heading below.
Determination of CD Rate. If the Base Rate is CD Rate, as indicated on
------------------------
the face hereof, the interest rate shall equal (i) the rate on the applicable
Interest Determination Date for negotiable certificates of deposit having the
Index Maturity specified on the face hereof (a) as published by the Board of
Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication of the Board of Governors
of the Federal Reserve System ("H.15(519)") under the heading "CDs (Secondary
Market)" or (b) if such rate is not so published in H.15(519) by 9:00 a.m., New
York City time, on the Calculation Date (as defined below) pertaining to such
Interest Determination Date, then as set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bogifrb.fed.us/releases/h15/update, or any
successor site or publication ("H.15 Daily Update") or (ii) if neither of such
rates is published by 3:00 p.m., New York City time, on such Calculation Date,
the arithmetic mean (as calculated by the Calculation Agent) of the secondary
market offered rates as of 10:00 a.m., New York City time, on such Interest
Determination Date of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York, selected by the Calculation
Agent (after consultation with the
3
<PAGE>
Company), for negotiable certificates of deposit of major United States money
center banks of the highest credit standing (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the Index Maturity
(as specified on the face hereof) in a denomination of $5,000,000, in each of
the above cases adjusted by the addition or subtraction (as the case may be) of
the Spread, if any, specified on the face hereof which is applicable to the
Interest Reset Period, and/or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period; provided, however, that if such dealers are not quoting as mentioned
-------- -------
above, the interest rate in effect hereon until the Interest Reset Date next
succeeding the Interest Reset Date to which such Interest Determination Date
relates shall be the same as the rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the Initial
Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate is
--------------------------------------
Commercial Paper Rate, as indicated on the face hereof, the interest rate shall
equal (i) the Money Market Yield (as defined herein) on the applicable Interest
Determination Date of the rate for commercial paper having the Index Maturity
specified on the face hereof (a) as published in H.15(519), under the heading
"Commercial Paper--Nonfinancial," or (b) if such yield is not so published by
9:00 a.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, then as published in H.15 Daily Update under the
heading "Commercial Paper" or (ii) if neither of such yields is published by
3:00 p.m., New York City time, on such Calculation Date, the Money Market Yield
of the arithmetic mean (as calculated by the Calculation Agent) of the offered
rates, as of 11:00 a.m., New York City time on such Interest Determination Date,
of three leading dealers of commercial paper in The City of New York, selected
by the Calculation Agent (after consultation with the Company), for commercial
paper of the Index Maturity specified on the face hereof placed for an
industrial issuer whose bond rating is "AA", or the equivalent, from a
nationally recognized rating agency, in each of the above cases adjusted by the
addition or subtraction (as the case may be) of the Spread, if any, specified on
the face hereof, which is applicable to the Interest Reset Period, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof,
which is applicable to the Interest Reset Period; provided, however, that if
--------- --------
such dealers are not quoting as mentioned above, the interest rate in effect
hereon until the Interest Reset Date next succeeding the Interest Reset Date to
which such Interest Determination Date relates shall be the same as the rate for
the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in accordance with
the following formula:
D x 360
Money Market Yield = __________________________ x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal; and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of Federal Funds Rate. If the Base Rate is Federal
-----------------------------------
Funds Rate, as indicated on the face hereof, the interest rate shall equal (i)
the rate on the applicable Interest Determination Date for Federal Funds (a) as
published in H.15(519), under the heading "Federal Funds (Effective)" or (b) if
such rate is not so published by 9:00 a.m., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, then as
published in H.15 Daily Update under the heading "Federal Funds (Effective)" or
(ii) if neither of such rates is published by 3:00 p.m., New York City time, on
such Calculation Date, the arithmetic mean (as calculated by the Calculation
Agent) of the rates for the last transaction in overnight Federal Funds arranged
by each of three leading brokers of Federal Funds transactions in New York City,
selected by the Calculation Agent (after consultation with the Company), prior
to 9:00 a.m., New York City time on such Interest Determination Date, in each of
the above cases adjusted by the addition or subtraction (as the case may be) of
the Spread, if any, specified on the face hereof, which is applicable to the
Interest Reset Period, and/or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period; provided, however, that if such brokers are not quoting as mentioned
-------- -------
above, the interest rate in effect hereon until the Interest Reset Date next
succeeding the Interest Reset Date to which such Interest Determination Date
relates shall be the same as the rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the Initial
Interest Rate).
4
<PAGE>
Determination of LIBOR. If the Base Rate is LIBOR, as indicated on the
----------------------
face hereof, the interest rate shall be determined by the Calculation Agent as
follows:
(i) with respect to an Interest Determination Date, either (a) if
"LIBOR Reuters" is specified on the face hereof, the arithmetic mean of the
offered rates, if there are at least two such offered rates (unless the
specified Designated LIBOR Page (as defined below) by its terms provides only
for a single rate, in which case such single rate shall be used), for deposits
in the Index Currency having the Index Maturity, each as specified on the face
hereof, commencing on the second London Banking Day immediately following the
applicable Interest Determination Date, which appear on the Designated LIBOR
Page specified on the face hereof as of 11:00 a.m., London time, on such
Interest Determination Date, on such Designated LIBOR Page, or (b) if "LIBOR
Telerate" is specified on the face hereof, the rate for deposits in the Index
Currency having the Index Maturity, each as specified on the face hereof,
commencing on the second London Banking Day immediately following the applicable
Interest Determination Date, which appears on the Designated LIBOR Page
specified on the face hereof as of 11:00 a.m., London time, on that Interest
Determination Date; in each of the above cases adjusted by the addition or
subtraction (as the case may be) of the Spread, if any, specified on the face
hereof, which is applicable to the Interest Reset Period, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof,
which is applicable to the Interest Reset Period. In the case where (a) above
applies, if fewer than two offered rates appear on the Designated LIBOR Page
specified on the face hereof (unless, as aforesaid, only a single rate is
required), or, in the case where (b) above applies if no rate appears on the
Designated LIBOR Page specified on the face hereof, as applicable, the interest
rate in respect of that Interest Determination Date will be determined as if the
parties had specified the rate described in (ii) below.
(ii) With respect to an Interest Determination Date on which this
provision applies, the interest rate will be determined on the basis of the
rates at which deposits in the Index Currency having the Index Maturity, each as
specified on the face hereof, are offered at approximately 11:00 a.m., London
time, on such Interest Determination Date by four major reference banks
("Reference Banks") in the London interbank market selected by the Calculation
Agent (after consultation with the Company) to prime banks in the London
interbank market commencing on the second London Banking Day immediately
following such Interest Determination Date and in a principal amount of not less
than the equivalent of U.S. $1,000,000 that is representative for a single
transaction in such market and the Index Currency at such time. The Calculation
Agent will request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are provided,
the interest rate for such Interest Determination Date will be the arithmetic
mean of such quotations. If fewer than two quotations are provided, the
interest rate for such Interest Determination Date will be the arithmetic mean
of the rates quoted at approximately 11:00 a.m., in the Principal Financial
Center (as defined below) on such Interest Determination Date by three major
banks in such Principal Financial Center selected by the Calculation Agent
(after consultation with the Company) for loans in the specified Index Currency
to leading European banks having the Index Maturity specified on the face hereof
commencing on the second London Banking Day immediately following such Interest
Determination Date and in a principal amount equal to an amount of not less than
the equivalent of U.S. $1,000,000 that is representative for a single
transaction in such market and the specified Index Currency at such time;
provided, however, that if the banks selected as aforesaid by the Calculation
- -------- -------
Agent are not quoting as mentioned in this sentence, the interest rate in effect
hereon until the Interest Reset Date next succeeding the Interest Reset Date to
which such Interest Determination Date relates shall be the same as the rate for
the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the Initial Interest Rate). In each of the above cases,
the interest rate shall be adjusted by the addition or subtraction (as the case
may be) of the Spread, if any, specified on the face hereof, which is applicable
to the Interest Reset Period, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof, which is applicable to the Interest Reset
Period.
"Index Currency" means the currency (including composite currencies)
specified on the face hereof as the currency for which LIBOR shall be
calculated. If no such currency is specified on the face hereof, the Index
Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (i) if "LIBOR Reuters" is
designated on the face hereof, the display on the Reuters Monitor Money Rates
Service for the purpose of displaying the London interbank rates of major banks
for the applicable Index Currency, or (ii) if "LIBOR Telerate" is designated on
the face hereof, the display on the Dow Jones Telerate Service for the purpose
of displaying the London interbank rates of major banks for the applicable Index
Currency. If neither LIBOR Reuters nor LIBOR Telerate is specified on the face
hereof, LIBOR for the applicable Index Currency will be determined as if LIBOR
Telerate (and, if the U.S. dollar is the Index Currency, Page 3750) had been
specified. "Page
5
<PAGE>
3750" means the display designated as page "3750" on the Dow Jones Telerate
Service (or such other page as may replace the 3750 page on that service or such
other service or services as may be nominated by the British Bankers'
Association for the purposes of displaying London interbank offered rates for
U.S. dollar deposits).
"Principal Financial Center" shall be the capital city of the country of
the specified Index Currency, except that with respect to U.S. dollars, Deutsche
marks, and Euros, the Principal Financial Center shall be The City of New York,
Frankfurt, and Luxembourg, respectively.
Determination of Prime Rate. If the Base Rate is Prime Rate, as
---------------------------
indicated on the face hereof, the interest rate shall equal (i) the rate set
forth on such date in H.15(519) under the heading "Bank Prime Loan" or (ii) in
the event that such rate is not published prior to 9:00 a.m., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
the rate on the applicable Interest Determination Date as published in H.15
Daily Update opposite the caption "Bank Prime Loan." If neither such rates is
published by 3:00 p.m., New York City time, on the Calculation Date, then the
interest rate will be determined by the Calculation Agent and will be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen US Prime1 Page (as defined herein) as such bank's
prime rate or base lending rate as in effect for that Interest Determination
Date. If fewer than four such rates but more than one such rate appear on the
Reuters Screen US Prime1 Page for such Interest Determination Date, the interest
rate will be determined by the Calculation Agent and will be the arithmetic mean
of the prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Interest
Determination Date by at least two major money center banks in The City of New
York selected by the Calculation Agent (after consultation with the Company).
If fewer than two such rates are quoted as aforesaid, the interest rate will be
determined by the Calculation Agent on the basis of the rates furnished in The
City of New York by three substitute banks or trust companies organized and
doing business under the laws of the United States, or any State thereof, having
total equity capital of at least U.S. $500,000,000 and being subject to
supervision or examination by federal or state authority, selected by the
Calculation Agent (after consultation with the Company) to provide such rate or
rates; provided, however, that if the banks selected as aforesaid are not
-------- -------
quoting as set forth above, the interest rate in effect hereon until the
Interest Reset Date next succeeding the Interest Reset Date to which such
Interest Determination Date relates shall be the same as the rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate). In each of the above cases, the
interest rate shall be adjusted by the addition or subtraction (as the case may
be) of the Spread, if any, specified on the face hereof, which is applicable to
the Interest Reset Period, and/or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period. "Reuters Screen US Prime1 Page" means the display designated as page "
US Prime1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the US Prime1 page on that service for the purpose of displaying the
prime rate or base lending rate of major United States banks).
Determination of Treasury Rate. If the Base Rate is Treasury Rate, as
------------------------------
indicated on the face hereof, the interest rate shall equal the rate for the
auction held on the applicable Interest Determination Date of direct obligations
of the United States ("Treasury bills") having the Index Maturity shown on the
face hereof as such rate appears on either the Telerate Page 56 or the Telerate
Page 57 under the heading "AVGE INVEST YIELD" or, if not so published by 9:00
a.m., New York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate (expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the Treasury,
in either case, adjusted by the addition or subtraction (as the case may be) of
the Spread, if any, specified on the face hereof, which is applicable to the
Interest Reset Period, and/or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period. In the event that the results of the auction of Treasury bills having
the Index Maturity shown on the face hereof are not published or reported as
provided above by 3:00 p.m., New York City time, on such Calculation Date or if
no such auction is held in a particular week, then the rate of interest hereon
shall be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 p.m., New York City time on
such Interest Determination Date, of three leading primary United States
government securities dealers, selected by the Calculation Agent (after
consultation with the Company), for the issue of Treasury bills with a remaining
maturity closest to the Index Maturity shown on the face hereof, adjusted by the
addition or subtraction (as the case may be) of the Spread, if any, specified on
the face hereof, which is applicable to the Interest Reset Period, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof,
which is applicable to the Interest Reset Period; provided, however, that if the
-------- -------
dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the interest
6
<PAGE>
rate in effect hereon until the Interest Reset Date next succeeding the Interest
Reset Date to which such Interest Determination Date relates shall be the same
as the rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the Initial Interest Rate).
Determination of CMT Rate. If the Base Rate is CMT Rate, as indicated
--------------------------
on the face hereof, the interest rate shall equal the rate displayed on the
Designated CMT Telerate Page (as defined below) under the caption. ". .
.Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . .
.Mondays Approximately 3:45 p.m.," under the column for the Designated CMT
Maturity Index (as defined herein) for: (i) if the Designated CMT Telerate Page
is 7051, such Interest Determination Date; and (ii) if the Designated CMT
Telerate Page is 7052, the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs. If
such rate is no longer displayed on the relevant page, or if not displayed by
3:00 p.m., New York City time, on the related Calculation Date, then the CMT
Rate will be such Treasury Constant Maturity rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If that rate is no
longer published, or if not published by 3:00 p.m., New York City time, on the
related Calculation Date, then the CMT Rate will be such Treasury Constant
Maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the applicable Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 p.m., New York City time, on the related Calculation Date, then
the Calculation Agent will determine the CMT Rate to be a yield to maturity,
based on the arithmetic mean of the secondary market closing offer side prices
as of approximately 3:30 p.m., New York City time, on the applicable Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a "Reference
Dealer") in The City of New York selected by the Calculation Agent as described
in the following sentence. The Calculation Agent will select five Reference
Dealers and will eliminate the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event of equality, one
of the lowest), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury notes quotations, the
Calculation Agent will determine the CMT Rate to be a yield to maturity based on
the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 p.m., New York City time, on the applicable Interest
Determination Date of three Reference Dealers in the City of New York (selected
using the same method described above), for Treasury notes with an original
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100,000,000. If three or four (and
not five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
--------
however, that if fewer than three Reference Dealers selected by the Calculation
- -------
Agrent are quoting as described herein, the interest rate in effect hereon until
the Interest Reset Date next succeeding the Interest Reset Date to which such
Interest Determination Date relates shall be the same as the rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate). If two Treasury notes with an original
maturity as described above have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury note with the
shorter remaining term to maturity will be used. In each of the above cases,
the interest rate shall be adjusted by the addition or subtraction (as the case
may be) of the Spread, if any, specified on the face hereof, which is applicable
to the Interest Reset Period, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof, which is applicable to the Interest Reset
Period.
"Designated CMT Telerate Page" means the display on the Telerate (or
any successor service) on the page designated on the face hereof (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified in the applicable Pricing Supplement, the Designated CMT
Telerate Page shall be 7052, for the most recent week.
7
<PAGE>
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified in the applicable Pricing Supplement with respect to which the CMT
Rate will be calculated. If no such maturity is specified on the face hereof,
the Designated CMT Maturity Index shall be two years.
Unless otherwise specified on the face hereof, the Calculation Date
pertaining to an Interest Determination Date shall be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if any such day is
not a Business Day, the next succeeding Business Day or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity Date or earlier
Redemption Date or Repayment Date. The Calculation Agent shall calculate the
interest rate hereon in accordance with the foregoing and will confirm in
writing such calculation to the Trustee and any Paying Agent immediately after
each determination. Neither the Trustee nor any Paying Agent shall be
responsible for any such calculation. At the request of the Holder hereof, the
Calculation Agent will provide the interest rate hereon then in effect and, if
determined, the interest rate which will become effective as of the next
Interest Reset Date.
3. Payments in U.S. dollars of interest (other than interest payable on the
Maturity Date or earlier Redemption Date or Repayment Date), unless this Note is
a Global Security, will be made by check mailed to the Holder at the address
appearing on the Register on the applicable Record Date. Notwithstanding the
foregoing, the Company may at its option elect to make payments in U.S. dollars
by wire transfer of immediately available funds but only if appropriate payment
instructions have been received in writing by the Trustee not less than fifteen
calendar days prior to the applicable Interest Payment Date. Simultaneously
with any election by the Holder hereof to receive payments of principal and any
premium and interest in a Specified Currency other than U.S. dollars, such
Holder shall provide appropriate payment instructions to the Trustee, and all
such payments will be made in immediately available funds to an account
maintained by the payee with a bank located outside the United States. Unless
indicated on the face hereof that this Note is a Global Security, the principal
hereof and any premium and interest hereon payable on the Maturity Date or
earlier Redemption Date or Repayment Date will be paid in immediately available
funds upon surrender of this Note at the office or agency of the Company in The
City of New York. If indicated on the face hereof that this Note is a Global
Security, the principal hereof and any premium and interest due on any Interest
Payment Date or on the Maturity Date or earlier Redemption Date or Repayment
Date will be made available to the Trustee on such date. As soon as possible
thereafter, the Trustee will make such payments to the Depositary in accordance
with existing arrangements between the Trustee and the Depositary.
4. If specified on the face hereof, this Note may be redeemed, as a whole
or from time to time in part, at the option of the Company, unless otherwise
specified on the face hereof, on not less than 30 nor more than 60 days' prior
notice given as provided in the Indenture, on any Redemption Date(s) and at the
related Redemption Price(s) set forth on the face hereof. If less than all the
Outstanding Notes of like tenor and terms are to be redeemed, the particular
Notes to be redeemed shall be selected by the Trustee not more than 60 days
prior to the Redemption Date from the Outstanding Notes of like tenor and terms
not previously called for redemption. Such selection shall be of principal
amounts equal to the minimum authorized denomination for such Notes or any
integral multiple thereof. Subject to the immediately preceding sentence, such
selection shall be made by any method as the Trustee deems fair and appropriate.
The notice of such redemption shall specify which Notes are to be redeemed. In
the event of redemption of this Note in part only, a new Note or Notes of this
series of like tenor and terms for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof. The Notes of
this series are not subject to any sinking fund.
5. If specified on the face hereof, this Note will be subject to repayment
at the option of the Holder hereof on the Repayment Date(s) and at the Repayment
Price(s) indicated on the face hereof. If no such Repayment Date is set forth
on the face hereof, this Note may not be so repaid at the option of the Holder
hereof prior to the Maturity Date. On each Repayment Date, if any, this Note
shall be repayable in whole or in part at the option of the Holder hereof at the
applicable Repayment Price set forth on the face hereof, together with interest
thereon to the date of repayment. For this Note to be repaid in whole or in
part at the option of the Holder hereof, the Company must receive at the
Corporate Trust Office of the Trustee in the City of Chicago, or at the office
or agency of the Company maintained for such purposes in the Borough of
Manhattan, The City of New York, unless otherwise specified on the face hereof,
at least 15 days, but not more than 30 days, prior to the specified Repayment
Date (i) this Note with the form entitled "Option to Elect Repayment" below duly
completed or (ii) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America
8
<PAGE>
setting forth the name of the Holder of this Note, the principal amount of this
Note, the certificate number of this Note or a description of this Note's tenor
and terms, the principal amount of this Note to be repaid (which shall not be
less than the minimum authorized denomination of this Note), a statement that
the option to elect repayment is being exercised thereby and a guarantee that
this Note to be repaid with the form entitled "Option to Elect Repayment" on
this Note duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter and such Note and form duly completed are received by the Company by such
fifth Business Day. Exercise of such repayment option shall be irrevocable. Such
option may be exercised by the Holder for less than the entire principal amount
provided that the principal amount remaining outstanding after repayment, if
any, is an authorized denomination. All questions as to the validity,
eligibility (including time of receipt) and acceptance of any Note for repayment
will be determined by the Company whose determination will be final and binding.
6. If the Specified Currency is other than U.S. dollars, unless the Holder
has elected otherwise, payment in respect of this Note shall be made in U.S.
dollars based upon the Exchange Rate, as determined by the exchange rate agent
appointed by the Company for such purpose as identified on the face hereof (the
"Exchange Rate Agent") based on the highest firm bid quotation for U.S. dollars
received by such Exchange Rate Agent at approximately 11:00 a.m. New York City
time on the second Business Day preceding the applicable payment date (or, if no
such rate is quoted on such date, the last date on which such rate was quoted)
from three recognized foreign exchange dealers in The City of New York selected
by the Exchange Rate Agent and approved by the Company (one of which may be the
Exchange Rate Agent) for the payment by the quoting dealer, for settlement on
such payment date, of the aggregate amount of the Specified Currency payable on
such payment date in respect of all Notes denominated in such Specified
Currency. All currency exchange costs will be borne by the Holders of such
Notes by deductions from such payments. If no such bid quotations are
available, payments will be made in the Specified Currency, unless such
Specified Currency is unavailable due to the imposition of exchange controls or
to other circumstances beyond the Company's control, in which case, the Company
will be entitled to make payments in respect hereof in U.S. dollars as provided
below.
If payment on this Note is required to be made in a Specified Currency
other than U.S. dollars and such currency is unavailable due to the imposition
of exchange controls or to other circumstances beyond the Company's control, or
is no longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions of or within the
international banking community, then all payments with respect to such Note
shall be made in U.S. dollars until such currency is again available or so used.
The amount so payable on any date in such Specified Currency shall be converted
into U.S. dollars by the Exchange Rate Agent on the basis of the most recently
available noon buying rate in The City of New York for cable transfers in such
Specified Currency as certified for customs purposes by the Federal Reserve Bank
of New York (the "Market Exchange Rate") on the most recent practicable date.
All determinations referred to above of the Exchange Rate Agent shall be
at its sole discretion (except to the extent expressly provided herein that any
determination is subject to approval of the Company). In the absence of
manifest error, such determinations shall be conclusive for all purposes and
binding upon all Holders of this Note.
7. If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all of the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture. If this Note is an
Original Issue Discount Note (as specified on the face hereof) and the principal
hereof is declared to be due and payable immediately pursuant to this Section,
the amount of principal due and payable with respect to this Note shall be
limited to the sum of the principal amount of this Note multiplied by the Issue
Price (expressed as a percentage of the aggregate principal amount), plus the
original issue discount accrued from the date of issue to the date of
declaration, which accrual shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting principles in effect
on the date of declaration).
8. The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series under the
Indenture to be effected at any time by the Company with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
9
<PAGE>
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
9. No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein and in the
Indenture prescribed.
10. The Notes are issuable only in registered form without coupons. The
authorized denominations of Notes denominated in U.S. dollars will be U.S.
$1,000 and/or any amount in excess thereof which is an integral multiple of U.S.
$1,000. The authorized denominations of Notes denominated in currency other
than U.S. dollars will be as set forth on the face hereof.
11. As provided in the Indenture and subject to certain limitations set
forth therein and herein, the transfer of this Note is registerable in the
Security Register, upon surrender of this Note for registration of transfer at
the office of the Security Registrar for this series (initially, Harris Trust
and Savings Bank). Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee, the Security
Registrar or any transfer agent, duly executed by the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Notes of like
tenor and terms of authorized denominations and for the same aggregate principal
amount, will be issued in the name or names of the designated transferee or
transferees and delivered at the office of the Security Registrar in The City of
New York, or mailed, at the request, risk and expense of the transferee or
transferees, to the addressee or addressees shown in the Security Register for
such transferee or transferees. The Company shall not be required (i) to issue,
register the transfer of or exchange any Note during a period beginning at the
opening of business 15 days before the day of the mailing of the relevant notice
of redemption and ending at the close of business on the day for such mailing or
(ii) to register the transfer of or exchange any Note so selected for
redemption, in whole or in part, except the unredeemed portion of any such Note
being redeemed in part. No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
12. No recourse shall be had for the payment of the principal of or interest
on this Note, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any successor company, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
13. Unless otherwise defined herein, all terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
14. This Note, including without limitation the obligation of the Company
contained herein to pay the principal of and interest on this Note in accordance
with the terms hereof and of the Indenture, shall be construed in accordance
with and governed by the laws of the State of California.
15. "Global Security" and "Global Securities" means a Security or Securities
evidencing all or a part of a series of Securities, issued to the Depositary (as
hereinafter defined) for such Series or its nominee, and registered in the name
of such Depositary or its nominee. "Depositary" means, with respect to the
Securities of any series issuable or issued in whole or in part in the form of
one or more Global Securities, the person designated as the Depositary by the
Company.
16. If indicated on the face hereof that this Note is a Global Security, no
holder of any beneficial interest in this Note held on its behalf by a
Depositary or a nominee of such Depositary shall have any rights under the
Indenture with
10
<PAGE>
respect to such Global Security, and such Depositary or nominee may be treated
by the Company, the Trustee, and any agent of the Company or the Trustee as the
owner of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depositary and such holders
of beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depositary as Holder of any Security.
17. If not indicated on the face hereof that this Note is a Global Security,
this Note is exchangeable for a like aggregate principal amount of Notes of a
different authorized denomination, as requested by the Holder surrendering the
same, as provided in the Indenture and subject to certain limitations therein
set forth. If indicated on the face hereof that this Note is a Global Security,
it is exchangeable, in whole but not in part, for Notes registered in the names
of Persons other than the Depositary or its nominee or in the name of a
successor to the Depositary or a nominee of such successor depositary only if
(i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Note or if at any time such Depositary ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and, in either case, a successor depositary is not appointed by the
Company within 90 days, (ii) the Company in its discretion at any time
determines not to have all of the Notes of this series represented by one or
more Global Security or Securities and notifies the Trustee thereof, or (iii) an
Event of Default has occurred and is continuing with respect to the Notes of
this series. If this Note is exchangeable pursuant to the preceding sentence,
it shall be exchangeable for Notes issuable in authorized denominations and
registered in such names as the Depositary holding this Note shall direct.
Subject to the foregoing, if this Note is a Global Security it is not
exchangeable, except for a Note or Notes of the same aggregate denominations to
be registered in the name of such Depositary or its nominee or in the name of a
successor to the Depositary or a nominee of such successor depositary.
11
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to the applicable Repayment Price thereof together with accrued and
unpaid interest to the Repayment Date, to the undersigned at
_____________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF THE UNDERSIGNED)
For this Note to be repaid, the Company must receive this Note, with
this "Option to Elect Repayment" form duly completed, at the office or agency of
the Company set forth in this Note, at least 15 days but not more than 30 days,
prior to the Repayment Date(s) (as set forth on the face hereof).
If less than the entire principal amount of this Note is to be repaid,
specify the portion thereof which the Holder elects to have repaid
________________; and specify the denomination or denominations (which shall be
in authorized denominations) of the Notes to be issued to the Holder for the
portion of this Note not being repaid (in the absence of any such specification,
one such Note will be issued for the portion not being repaid):
_______________________________.
Date: _______________ ________________________________________
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of this
Note in every particular without
alteration or enlargement.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - ________ Custodian _________ under Uniform Gifts to Minors
(Cust) (Minor)
Act _________
(State)
Additional abbreviations may also be used though not in the above list.
12
<PAGE>
FORM OF
OPTION TO RENEW MATURITY
The undersigned hereby irrevocably requests and instructs the Company to
renew the Maturity Date to ___________ of Transamerica Finance Corporation's
Senior Medium-Term Note represented by certificate number _____________ with
respect to $___________ aggregate principal amount of such Note and registered
in the name of the undersigned.
For the Maturity Date of the Note to be renewed, the Trustee must
receive a notice in this form duly completed, together with the Note, at the
office or agency of the Trustee set forth in the Note, not less than ten nor
more than 30 Business Days prior to the applicable Notice of Renewal Date shown
on the face thereof.
Date:______________________ ________________________________________
NOTICE: The signature on this Form must
correspond with the name as written upon
the face of the Note in every particular
without alteration or enlargement.
13
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto ____________________ [PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE] ____________________________________________ (PLEASE PRINT
OR TYPEWRITE NAME AND ADDRESS OF TRANSFEREE) the within Note, and all rights
thereunder, hereby irrevocably constituting and appointing
______________________________ Attorney to transfer said Note on the books of
the Company, with full power of substitution in the premises.
Date:___________________ ________________________________________
NOTICE: The signature to this assignment
must be guaranteed by a commercial bank
or trust company in the continental
United States or by a firm or
corporation having membership on any
national securities exchange or in the
National Association of Securities
Dealers, Inc., and must correspond with
the name as written upon the face of the
within instrument in every particular
without alteration or enlargement or any
change whatever.
14
<PAGE>
EXHIBIT 4.5
[Face of Subordinated Medium-Term Note]
IF INDICATED ON THE FACE HEREOF THAT THIS NOTE IS A GLOBAL SECURITY, IT IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES HEREINAFTER
DESCRIBED AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
IN ADDITION, IF INDICATED ON THE FACE HEREOF THAT THIS NOTE IS A GLOBAL
SECURITY, UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY" AND "ISSUE PRICE"
BELOW WILL BE COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
REGISTERED REGISTERED
NUMBER: PRINCIPAL AMOUNT: $
CUSIP #: SPECIFIED CURRENCY:
TRANSAMERICA FINANCE CORPORATION
SUBORDINATED MEDIUM-TERM NOTE, SERIES __
Floating Rate Note [_] _______%Fixed Rate Note [_]
Original Issue Date:
Interest Accrual Date: Maturity Date:
Issue Price:
New Notice of
Maturity Renewal
Redemption Date(s): Redemption Price(s): Date(s): Date(s):
------------- -------------
Authorized Denominations (Only
applicable if Specified Currency
is other than U.S. dollars):
Repayment Date(s): Repayment Price(s): Interest Payment Period:
Interest Payment
Dates:
Original Issue Discount Note: Global Security:
[_] Yes [_] No [_] Yes [_] No
1
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Total Amount of OID:
Yield to Maturity:
Exchange Rate Agent:
(Only applicable if this is a Floating Rate Note):
Initial Interest Rate: Spread (plus or minus):
Spread Multiplier:
Maximum Interest Rate:
Index Maturity:
Minimum Interest Rate:
Calculation Rate Agent:
Base Rate(s):
If LIBOR:
Designated LIBOR Page:
[_] LIBOR Reuters
[_] LIBOR Telerate
Index Currency:
Interest Reset Period:
Interest Reset Dates:
Additional Terms:
REGISTERED OWNER:
Transamerica Finance Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (the "Company"), for value received,
hereby promises to pay to the Registered Owner identified above, or registered
assigns, the "Principal Amount," as set forth above, on the Maturity Date (as
defined on the reverse hereof), and to pay interest thereon as described herein.
The principal of (and premium, if any) and interest on this Note are payable
by the Company in such coin or currency specified above as at the time of
payment shall be legal tender for the payment of public and private debts (the
"Specified Currency"). If the Specified Currency is other than U.S. dollars,
the Company will arrange to have all such payments converted into U.S. dollars
in the manner and subject to the limitations described below. Notwithstanding
the foregoing, the Holder hereof may elect to receive all payments in respect
hereof in the Specified Currency by delivery of a written request to the Trustee
not later than fifteen calendar days prior to the applicable payment date. Such
election will remain in effect until revoked by written notice to the Trustee
received not later than fifteen calendar days prior to the applicable payment
date.
2
<PAGE>
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH IN
FULL BELOW, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT
AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been manually executed by
or on behalf of the Trustee under the Indenture, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF TRANSAMERICA FINANCE CORPORATION
AUTHENTICATION
This is one of the Securities of the
series designated herein referred to in By__________________________________
the within-mentioned Indenture. Senior Vice President
THE BANK OF NEW YORK,
as Trustee
Attest and Countersign:
By___________________________________ By__________________________________
Authorized Signatory Assistant Secretary
[Corporate Seal]
3
<PAGE>
[Reverse of Subordinated Medium-Term Note]
1. This Note is one of a duly authorized issue of debt securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of April 1, 1991 (the "Indenture"), between
the Company and The Bank of New York, successor trustee to First Interstate Bank
of California, formerly First Interstate Bank, Ltd., as Trustee (herein called
the "Trustee," which term includes any successor trustee under the Indenture),
to which Indenture and all Indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of a series designated as Medium-
Term Notes, Series __ of the Company (herein called the "Notes"). The Notes are
limited (except as otherwise provided in the Indenture) to the aggregate
principal amount established from time to time by the Board of Directors of the
Company. The Notes may be issued at various times with different maturity dates
and different principal repayment provisions, may bear interest at different
rates, may be payable in different currencies and may otherwise vary, all as
provided in the Indenture.
2. The indebtedness evidenced by this Note is to the extent and in the
manner set forth in the Indenture, expressly subordinated and subject in right
of payment to the prior payment in full of all Senior Indebtedness (as defined
in the Indenture of the Company). This Note is issued subject to such
provisions of the Indenture, and each Holder of this Note, by accepting the
same, agrees to and shall be bound by such provisions and authorizes and directs
the Trustee on the Holder's behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate such subordination as provided in the
Indenture and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes.
The Maturity Date of this Note is as shown on the face hereof; provided,
---------
however, that the Maturity Date may be renewed, at the option of the Holder, to
- -------
the New Maturity Date or Dates, if any, shown on the face hereof if the Holder
so elects, in the manner specified herein, prior to the applicable Notice of
Renewal Date shown on the face hereof. Such election will be irrevocable and
will be binding upon each subsequent Holder of this Note. Notwithstanding the
foregoing, the New Maturity Dates shall not be any date that is more than
fifteen years from the Original Issue Date set forth on the face hereof. If no
New Maturity Date or Dates are shown on the face hereof, the Maturity Date of
this Note is not subject to renewal. As used in this Note, the term "Maturity
Date" means the Maturity Date shown on the face hereof until such time, if any,
as the Holder hereof has duly renewed the maturity of this Note, and thereafter
shall mean such New Maturity Date.
Any such election to renew the Maturity Date of this Note will be
effective only if notice thereof is provided to the Company in the manner
described below. The Maturity Date of this Note may be renewed, in whole or in
part, at the option of the Holder hereof, to each successive New Maturity Date
shown on the face hereof if the Holder presents a duly completed and executed
notice, in the form below entitled "Form of Option to Renew Maturity," together
with this Note, to the Corporate Trust Office of the Trustee in the City of New
York, or such other address as the Company shall from time to time notify the
Holders of Notes, not less than ten nor more than 30 days prior to the
applicable Notice of Renewal Date shown on the face hereof, provided, however,
-------- -------
that if a Holder of this Note does not make an election with respect to all or a
portion of the Note with respect to a specified New Maturity Date, this Note or
such portion may not be renewed with respect to a subsequent New Maturity Date.
The Trustee will provide the Holder with a new Note with respect to that portion
which is being renewed indicating the New Maturity Date, and a new Note with
respect to that portion, if any, which is not being renewed indicating the
original Maturity Date. All questions as to the validity, eligibility
(including time of receipt) and acceptance of any option to renew the Maturity
Date of this Note will be determined by the Company, whose determination will,
to the extent permitted by law, be final and binding.
3. A. Unless otherwise specified on the face hereof, the Regular Record
Date with respect to any Interest Payment Date (as defined below) shall be the
date 15 calendar days immediately preceding such Interest Payment Date, whether
or not such date shall be a Business Day (as defined below). Interest which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name this Note is registered at the
close of business on the Regular Record Date next preceding such Interest
Payment Date; provided, however, that interest payable on the Interest Payment
-------- -------
Date occurring on the Maturity Date or earlier Redemption Date or Repayment Date
will be to the Person to whom principal shall be payable; provided, further,
-------- -------
that the first payment of interest on any Note originally issued between a
Regular Record Date and an Interest Payment Date or on an Interest Payment Date
will be made on the Interest Payment Date following the next succeeding Regular
Record Date to the registered owner on such next succeeding Regular Record Date.
Notwithstanding the foregoing, any interest which is payable but not punctually
paid or duly provided for on any Interest Payment Date shall forthwith cease to
be payable to the registered holder thereof on such Regular Record Date, and may
be paid to the Person in whose name such Note is registered at the close of
business on a Special Record Date for
1
<PAGE>
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof having been given to the Holder of such Note not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner, all as more fully provided in the Indenture. Unless otherwise specified
on the face hereof, "Business Day" means any day, other than a Saturday or
Sunday, that meets each of the following applicable requirements: the day is (i)
not a day on which banking institutions are authorized or required by law or
regulation to be closed in The City of New York, (ii) with respect to Notes
denominated in a Specified Currency other than U.S. dollars, (a) not a day on
which banking institutions are authorized or required by law or regulation to
close in the financial center of the country issuing the Specified Currency
(which in the case of the lawful currency of the member states of the European
Union that adopt the single currency in accordance with the Treaty establishing
the European Community, as amended by the Treaty on European Union (the "Euro")
shall be London and Luxembourg) and (b) a day on which banking institutions in
such financial center are carrying out transactions in such Specified Currency,
and (iii) with respect to LIBOR Notes, a London Banking Day. Unless otherwise
specified on the face hereof, "London Banking Day" means any day (i) if the
Index Currency (as defined below) is other than the Euro on which dealings in
deposits in such Index Currency are transacted in the London interbank market or
(ii) if the Index Currency is the Euro, any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
All percentages resulting from calculations will be rounded, if necessary, to
the nearest one hundred-thousandth of a percentage point, with five one-
millionths of a percentage point being rounded upwards, and all currency or
currency unit amounts used and resulting from such calculations on this Note
will be rounded to the nearest one-hundredth of a unit, with five one-
thousandths of a unit being rounded upwards.
B. If this is a Fixed Rate Note, the Company promises to pay interest
on the Principal Amount stated on the face hereof at the rate per annum shown on
the face hereof until such Principal Amount is paid or made available for
payment. The Company will pay interest semi-annually each March 1 and September
1 or, if otherwise specified on the face hereof, such other dates (each an
"Interest Payment Date"), commencing with the Interest Payment Date immediately
following the Original Issue Date shown on the face hereof (subject to the last
proviso in Section 2.A hereof) and on the Maturity Date or earlier Redemption
Date or Repayment Date. Interest will accrue from and including the most recent
Interest Payment Date or, if no interest has been paid or duly provided for,
from and including the Original Issue Date, in each case, to but excluding the
Interest Payment Date. Unless otherwise specified on the face hereof, the
amount of such interest payable on any Interest Payment Date shall be computed
on the basis of a 360-day year of twelve 30-day months.
C. If this is a Floating Rate Note, the Company promises to pay
interest on the Principal Amount stated on the face hereof at the rate per annum
equal to the Initial Interest Rate shown on the face hereof until the first
Interest Reset Date shown on the face hereof following the Original Issue Date
specified on the face hereof and thereafter at a rate applicable for the
specified Interest Reset Period determined in accordance with the Base Rate or
Rates specified on the face hereof and as applicable under the provisions below
under the heading "Determination of CD Rate," "Determination of Commercial Paper
Rate," "Determination of Federal Funds Rate," "Determination of LIBOR,"
"Determination of Prime Rate," "Determination of Treasury Rate," "Determination
of CMT Rate," or as otherwise specified on the face hereof depending upon
whether the Base Rate specified on the face hereof is CD Rate, Commercial Paper
Rate, Federal Funds Rate, LIBOR, Prime Rate, Treasury Rate, CMT Rate, or as
otherwise so specified, respectively, or at a rate determined by adding or
subtracting two or more Base Rates as adjusted, until the principal hereof is
paid or duly made available for payment. The Company will pay interest monthly,
quarterly, semi-annually or annually as specified on the face hereof under
"Interest Payment Period," commencing with the first Interest Payment Date
specified on the face hereof next succeeding the Original Issue Date (subject to
the last proviso in Section 2.A hereof), and on the Maturity Date or earlier
Redemption Date or Repayment Date. Unless otherwise provided on the face
hereof, the dates on which interest will be payable (each an "Interest Payment
Date") will be, in the case of Notes with a monthly Interest Payment Period, the
third Wednesday of each month; in the case of Notes with a quarterly Interest
Payment Period, the third Wednesday of March, June, September and December; in
the case of Notes with a semi-annual Interest Payment Period, the third
Wednesday of the two months specified on the face hereof; and in the case of
Notes with an annual Interest Payment Period, the third Wednesday of the month
specified on the face hereof; provided, however, that if an Interest Payment
-------- -------
Date would fall on a day that is not a Business Day, such Interest Payment Date
shall be the following day that is a Business Day, except that in case the Base
Rate is LIBOR, as specified on the face hereof, if such date falls in the next
calendar month, such Interest Payment Date shall be the immediately preceding
Business Day.
Unless otherwise specified on the face hereof, the interest payable on a
Floating Rate Note on each Interest Payment Date will include accrued interest
from and including the Original Issue Date or from and including the last date
in respect of which interest has been
2
<PAGE>
paid, as the case may be, to but excluding such Interest Payment Date.
Interest payable on the Maturity Date or earlier Redemption Date or Repayment
Date will include accrued interest to, but excluding, the Maturity Date or
earlier Redemption Date or Repayment Date. Such accrued interest will be
calculated by multiplying the principal amount hereof by an accrued interest
factor. This accrued interest factor shall be computed by adding the interest
factors calculated for each day in the period for which accrued interest is
being calculated. Unless otherwise specified on the face hereof, the interest
factor (expressed as a decimal) for each such day shall be computed by dividing
the interest rate applicable to such day by 360 if the Base Rate is CD Rate,
Commercial Paper Rate, Federal Funds Rate, LIBOR or Prime Rate, as indicated on
the face hereof, or by the actual number of days in the year if the Base Rate is
Treasury Rate or CMT Rate, as indicated on the face hereof. Unless otherwise
specified on the face hereof, if the Base Rate is a fixed rate, interest hereon
shall be computed on the basis of a 360-day year of twelve 30-day months. The
interest factor for Notes for which the interest rate is calculated with
reference to two or more Base Rates will be calculated in each period in the
manner specified on the face hereof. The interest rate in effect on each day
will be (i) if such day is an Interest Reset Date, the interest rate with
respect to the Interest Determination Date pertaining to such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate with
respect to the Interest Determination Date (as defined below) pertaining to the
next preceding Interest Reset Date, provided, however, that (a) the interest
-------- -------
rate in effect from the Original Issue Date to the first Interest Reset Date
will be the Initial Interest Rate and (b) unless otherwise specified on the face
hereof, the interest rate in effect for the ten calendar days immediately prior
to the Maturity Date or earlier Redemption Date or Repayment Date will be the
rate in effect on the tenth calendar day preceding the Maturity Date or earlier
Redemption Date or Repayment Date. Notwithstanding the foregoing, the interest
rate shall not be greater than the Maximum Interest Rate, if any, or less than
the Minimum Interest Rate, if any, shown on the face hereof. In addition, the
interest rate shall in no event be higher than the maximum rate, if any,
permitted by California law. Commencing with the first Interest Reset Date
specified on the face hereof following the Original Issue Date and thereafter
upon each succeeding Interest Reset Date specified on the face hereof, the rate
at which interest on a Floating Rate Note is payable shall be adjusted as
provided herein; provided, however, that if any Interest Reset Date would
-------- -------
otherwise be a day that is not a Business Day, such Interest Reset Date shall be
postponed to the next day that is a Business Day, except that if the Base Rate
is LIBOR and such Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day; and
provided, further, that if the Base Rate is Treasury Rate and the Interest Reset
- -------- -------
Date falls on a date which is an auction date, the Interest Reset Date shall be
the following day that is a Business Day.
Unless otherwise indicated on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date will be, if the Base
Rate is other than LIBOR or Treasury Rate, the second Business Day next
preceding such Interest Reset Date. Unless otherwise indicated on the face
hereof, the Interest Determination Date pertaining to an Interest Reset Date
will be, if the Base Rate is LIBOR, the second London Banking Day next preceding
such Interest Reset Date. Unless otherwise indicated on the face hereof, the
Interest Determination Date pertaining to an Interest Reset Date will be, if the
Base Rate is Treasury Rate, the day of the week in which such Interest Reset
Date falls on which Treasury bills (as defined below) of the Index Maturity
specified on the face hereof are auctioned. Treasury bills are normally
auctioned on Monday of each week, unless that day is a legal holiday, in which
case the auction is normally held on the following Tuesday, except that such
auction may be held on the preceding Friday. If, as a result of a legal holiday,
an auction is so held on the preceding Friday, such Friday will be the Interest
Determination Date pertaining to the Interest Reset Date occurring in the next
succeeding week.
Except as otherwise specified on the face hereof, on each Interest Reset
Date the rate of interest shall be the rate determined in accordance with the
provisions of the applicable heading below.
Determination of CD Rate. If the Base Rate is CD Rate, as indicated on
------------------------
the face hereof, the interest rate shall equal (i) the rate on the applicable
Interest Determination Date for negotiable certificates of deposit having the
Index Maturity specified on the face hereof (a) as published by the Board of
Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication of the Board of Governors
of the Federal Reserve System ("H.15(519)") under the heading "CDs (Secondary
Market)" or (b) if such rate is not so published in H.15(519) by 9:00 a.m., New
York City time, on the Calculation Date (as defined below) pertaining to such
Interest Determination Date, then as set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bogifrb.fed.us/releases/h15/update, or any
successor site or publication ("H.15 Daily Update") or (ii) if neither of such
rates is published by 3:00 p.m., New York City time, on such Calculation Date,
the arithmetic mean (as calculated by the Calculation Agent) of the secondary
market offered rates as of 10:00 a.m., New York City time, on such Interest
Determination Date of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York, selected by the Calculation
Agent (after consultation with the Company), for negotiable certificates of
deposit of major United States money center banks of the highest credit standing
(in
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the market for negotiable certificates of deposit) with a remaining maturity
closest to the Index Maturity (as specified on the face hereof) in a
denomination of $5,000,000, in each of the above cases adjusted by the addition
or subtraction (as the case may be) of the Spread, if any, specified on the face
hereof which is applicable to the Interest Reset Period, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof,
which is applicable to the Interest Reset Period; provided, however, that if
-------- -------
such dealers are not quoting as mentioned above, the interest rate in effect
hereon until the Interest Reset Date next succeeding the Interest Reset Date to
which such Interest Determination Date relates shall be the same as the rate for
the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate is Commercial
--------------------------------------
Paper Rate, as indicated on the face hereof, the interest rate shall equal (i)
the Money Market Yield (as defined herein) on the applicable Interest
Determination Date of the rate for commercial paper having the Index Maturity
specified on the face hereof (a) as published in H.15(519), under the heading
"Commercial Paper--Nonfinancial," or (b) if such yield is not so published by
9:00 a.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, then as published in H.15 Daily Update under the
heading "Commercial Paper" or (ii) if neither of such yields is published by
3:00 p.m., New York City time, on such Calculation Date, the Money Market Yield
of the arithmetic mean (as calculated by the Calculation Agent) of the offered
rates, as of 11:00 a.m., New York City time on such Interest Determination Date,
of three leading dealers of commercial paper in The City of New York, selected
by the Calculation Agent (after consultation with the Company), for commercial
paper of the Index Maturity specified on the face hereof placed for an
industrial issuer whose bond rating is "AA", or the equivalent, from a
nationally recognized rating agency, in each of the above cases adjusted by the
addition or subtraction (as the case may be) of the Spread, if any, specified on
the face hereof, which is applicable to the Interest Reset Period, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof,
which is applicable to the Interest Reset Period; provided, however, that if
-------- -------
such dealers are not quoting as mentioned above, the interest rate in effect
hereon until the Interest Reset Date next succeeding the Interest Reset Date to
which such Interest Determination Date relates shall be the same as the rate for
the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in accordance with
the following formula:
D x 360
Money Market Yield = ------------------ x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal; and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of Federal Funds Rate. If the Base Rate is Federal Funds
-----------------------------------
Rate, as indicated on the face hereof, the interest rate shall equal (i) the
rate on the applicable Interest Determination Date for Federal Funds (a) as
published in H.15(519), under the heading "Federal Funds (Effective)" or (b) if
such rate is not so published by 9:00 a.m., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, then as
published in H.15 Daily Update under the heading "Federal Funds (Effective)" or
(ii) if neither of such rates is published by 3:00 p.m., New York City time, on
such Calculation Date, the arithmetic mean (as calculated by the Calculation
Agent) of the rates for the last transaction in overnight Federal Funds arranged
by each of three leading brokers of Federal Funds transactions in New York City,
selected by the Calculation Agent (after consultation with the Company), prior
to 9:00 a.m., New York City time on such Interest Determination Date, in each of
the above cases adjusted by the addition or subtraction (as the case may be) of
the Spread, if any, specified on the face hereof, which is applicable to the
Interest Reset Period, and/or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period; provided, however, that if such brokers are not quoting as mentioned
-------- -------
above, the interest rate in effect hereon until the Interest Reset Date next
succeeding the Interest Reset Date to which such Interest Determination Date
relates shall be the same as the rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the Initial
Interest Rate).
Determination of LIBOR. If the Base Rate is LIBOR, as indicated on the
----------------------
face hereof, the interest rate shall be determined by the Calculation Agent as
follows:
(i) with respect to an Interest Determination Date, either (a) if
"LIBOR Reuters" is specified on the face hereof, the arithmetic mean of the
offered rates, if there are at least two such offered rates (unless the
specified Designated
4
<PAGE>
LIBOR Page (as defined below) by its terms provides only for a single rate, in
which case such single rate shall be used), for deposits in the Index Currency
having the Index Maturity, each as specified on the face hereof, commencing on
the second London Banking Day immediately following the applicable Interest
Determination Date, which appear on the Designated LIBOR Page specified on the
face hereof as of 11:00 a.m., London time, on such Interest Determination Date,
on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on the
face hereof, the rate for deposits in the Index Currency having the Index
Maturity, each as specified on the face hereof, commencing on the second London
Banking Day immediately following the applicable Interest Determination Date,
which appears on the Designated LIBOR Page specified on the face hereof as of
11:00 a.m., London time, on that Interest Determination Date; in each of the
above cases adjusted by the addition or subtraction (as the case may be) of the
Spread, if any, specified on the face hereof, which is applicable to the
Interest Reset Period, and/or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period. In the case where (a) above applies, if fewer than two offered rates
appear on the Designated LIBOR Page specified on the face hereof (unless, as
aforesaid, only a single rate is required), or, in the case where (b) above
applies if no rate appears on the Designated LIBOR Page specified on the face
hereof, as applicable, the interest rate in respect of that Interest
Determination Date will be determined as if the parties had specified the rate
described in (ii) below.
(ii) With respect to an Interest Determination Date on which this
provision applies, the interest rate will be determined on the basis of the
rates at which deposits in the Index Currency having the Index Maturity, each as
specified on the face hereof, are offered at approximately 11:00 a.m., London
time, on such Interest Determination Date by four major reference banks
("Reference Banks") in the London interbank market selected by the Calculation
Agent (after consultation with the Company) to prime banks in the London
interbank market commencing on the second London Banking Day immediately
following such Interest Determination Date and in a principal amount of not less
than the equivalent of U.S. $1,000,000 that is representative for a single
transaction in such market and the Index Currency at such time. The Calculation
Agent will request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are provided,
the interest rate for such Interest Determination Date will be the arithmetic
mean of such quotations. If fewer than two quotations are provided, the
interest rate for such Interest Determination Date will be the arithmetic mean
of the rates quoted at approximately 11:00 a.m., in the Principal Financial
Center (as defined below) on such Interest Determination Date by three major
banks in such Principal Financial Center selected by the Calculation Agent
(after consultation with the Company) for loans in the specified Index Currency
to leading European banks having the Index Maturity specified on the face hereof
commencing on the second London Banking Day immediately following such Interest
Determination Date and in a principal amount equal to an amount of not less than
the equivalent of U.S. $1,000,000 that is representative for a single
transaction in such market and the specified Index Currency at such time;
provided, however, that if the banks selected as aforesaid by the Calculation
- -------- -------
Agent are not quoting as mentioned in this sentence, the interest rate in effect
hereon until the Interest Reset Date next succeeding the Interest Reset Date to
which such Interest Determination Date relates shall be the same as the rate for
the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the Initial Interest Rate). In each of the above cases,
the interest rate shall be adjusted by the addition or subtraction (as the case
may be) of the Spread, if any, specified on the face hereof, which is applicable
to the Interest Reset Period, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof, which is applicable to the Interest Reset
Period.
"Index Currency" means the currency (including composite currencies)
specified on the face hereof as the currency for which LIBOR shall be
calculated. If no such currency is specified on the face hereof, the Index
Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (i) if "LIBOR Reuters" is
designated on the face hereof, the display on the Reuters Monitor Money Rates
Service for the purpose of displaying the London interbank rates of major banks
for the applicable Index Currency, or (ii) if "LIBOR Telerate" is designated on
the face hereof, the display on the Dow Jones Telerate Service for the purpose
of displaying the London interbank rates of major banks for the applicable Index
Currency. If neither LIBOR Reuters nor LIBOR Telerate is specified on the face
hereof, LIBOR for the applicable Index Currency will be determined as if LIBOR
Telerate (and, if the U.S. dollar is the Index Currency, Page 3750) had been
specified. "Page 3750" means the display designated as page "3750" on the Dow
Jones Telerate Service (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the British
Bankers' Association for the purposes of displaying London interbank offered
rates for U.S. dollar deposits).
"Principal Financial Center" shall be the capital city of the country of
the specified Index Currency, except that with respect to U.S. dollars, Deutsche
marks, and Euros, the Principal Financial Center shall be The City of New York,
Frankfurt, and Luxembourg, respectively.
5
<PAGE>
Determination of Prime Rate. If the Base Rate is Prime Rate, as
---------------------------
indicated on the face hereof, the interest rate shall equal (i) the rate set
forth on such date in H.15(519) under the heading "Bank Prime Loan" or (ii) in
the event that such rate is not published prior to 9:00 a.m., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
the rate on the applicable Interest Determination Date as published in H.15
Daily Update opposite the caption "Bank Prime Loan." If neither such rates is
published by 3:00 p.m., New York City time, on the Calculation Date, then the
interest rate will be determined by the Calculation Agent and will be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen US Prime1 Page (as defined herein) as such bank's
prime rate or base lending rate as in effect for that Interest Determination
Date. If fewer than four such rates but more than one such rate appear on the
Reuters Screen US Prime1 Page for such Interest Determination Date, the interest
rate will be determined by the Calculation Agent and will be the arithmetic mean
of the prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Interest
Determination Date by at least two major money center banks in The City of New
York selected by the Calculation Agent (after consultation with the Company).
If fewer than two such rates are quoted as aforesaid, the interest rate will be
determined by the Calculation Agent on the basis of the rates furnished in The
City of New York by three substitute banks or trust companies organized and
doing business under the laws of the United States, or any State thereof, having
total equity capital of at least U.S. $500,000,000 and being subject to
supervision or examination by federal or state authority, selected by the
Calculation Agent (after consultation with the Company) to provide such rate or
rates; provided, however, that if the banks selected as aforesaid are not
-------- -------
quoting as set forth above, the interest rate in effect hereon until the
Interest Reset Date next succeeding the Interest Reset Date to which such
Interest Determination Date relates shall be the same as the rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate). In each of the above cases, the
interest rate shall be adjusted by the addition or subtraction (as the case may
be) of the Spread, if any, specified on the face hereof, which is applicable to
the Interest Reset Period, and/or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period. "Reuters Screen US Prime1 Page" means the display designated as page "
US Prime1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the US Prime1 page on that service for the purpose of displaying the
prime rate or base lending rate of major United States banks).
Determination of Treasury Rate. If the Base Rate is Treasury Rate, as
------------------------------
indicated on the face hereof, the interest rate shall equal the rate for the
auction held on the applicable Interest Determination Date of direct obligations
of the United States ("Treasury bills") having the Index Maturity shown on the
face hereof as such rate appears on either the Telerate Page 56 or the Telerate
Page 57 under the heading "AVGE INVEST YIELD" or, if not so published by 9:00
a.m., New York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate (expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the Treasury,
in either case, adjusted by the addition or subtraction (as the case may be) of
the Spread, if any, specified on the face hereof, which is applicable to the
Interest Reset Period, and/or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period. In the event that the results of the auction of Treasury bills having
the Index Maturity shown on the face hereof are not published or reported as
provided above by 3:00 p.m., New York City time, on such Calculation Date or if
no such auction is held in a particular week, then the rate of interest hereon
shall be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 p.m., New York City time on
such Interest Determination Date, of three leading primary United States
government securities dealers, selected by the Calculation Agent (after
consultation with the Company), for the issue of Treasury bills with a remaining
maturity closest to the Index Maturity shown on the face hereof, adjusted by the
addition or subtraction (as the case may be) of the Spread, if any, specified on
the face hereof, which is applicable to the Interest Reset Period, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof,
which is applicable to the Interest Reset Period; provided, however, that if the
-------- -------
dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the interest rate in effect hereon until the
Interest Reset Date next succeeding the Interest Reset Date to which such
Interest Determination Date relates shall be the same as the rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate).
Determination of CMT Rate. If the Base Rate is CMT Rate, as indicated
--------------------------
on the face hereof, the interest rate shall equal the rate displayed on the
Designated CMT Telerate Page (as defined below) under the caption. ". .
.Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . .
.Mondays Approximately 3:45 p.m.," under the column for the Designated CMT
Maturity Index (as defined herein) for: (i) if the Designated CMT Telerate Page
is 7051, such Interest Determination Date; and (ii) if the Designated CMT
Telerate Page is 7052, the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs. If
such rate is no longer displayed
6
<PAGE>
on the relevant page, or if not displayed by 3:00 p.m., New York City time, on
the related Calculation Date, then the CMT Rate will be such Treasury Constant
Maturity rate for the Designated CMT Maturity Index as published in the relevant
H.15(519). If that rate is no longer published, or if not published by 3:00
p.m., New York City time, on the related Calculation Date, then the CMT Rate
will be such Treasury Constant Maturity rate for the Designated CMT Maturity
Index (or other United States Treasury rate for the Designated CMT Maturity
Index) for the applicable Interest Determination Date with respect to such
Interest Reset Date as may then be published by either the Board of Governors of
the Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly displayed
on the Designated CMT Telerate Page and published in the relevant H.15(519). If
such information is not provided by 3:00 p.m., New York City time, on the
related Calculation Date, then the Calculation Agent will determine the CMT Rate
to be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 p.m., New York City time, on
the applicable Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York selected by the Calculation
Agent as described in the following sentence. The Calculation Agent will select
five Reference Dealers and will eliminate the highest quotation (or, in the
event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury notes") with
an original maturity of approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year. If the Calculation Agent cannot obtain three such Treasury notes
quotations, the Calculation Agent will determine the CMT Rate to be a yield to
maturity based on the arithmetic mean of the secondary market offer side prices
as of approximately 3:30 p.m., New York City time, on the applicable Interest
Determination Date of three Reference Dealers in the City of New York (selected
using the same method described above), for Treasury notes with an original
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100,000,000. If three or four (and
not five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
--------
however, that if fewer than three Reference Dealers selected by the Calculation
- -------
Agrent are quoting as described herein, the interest rate in effect hereon until
the Interest Reset Date next succeeding the Interest Reset Date to which such
Interest Determination Date relates shall be the same as the rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate). If two Treasury notes with an original
maturity as described above have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury note with the
shorter remaining term to maturity will be used. In each of the above cases,
the interest rate shall be adjusted by the addition or subtraction (as the case
may be) of the Spread, if any, specified on the face hereof, which is applicable
to the Interest Reset Period, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof, which is applicable to the Interest Reset
Period.
"Designated CMT Telerate Page" means the display on the Telerate (or
any successor service) on the page designated on the face hereof (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified in the applicable Pricing Supplement, the Designated CMT
Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified in the applicable Pricing Supplement with respect to which the CMT
Rate will be calculated. If no such maturity is specified on the face hereof,
the Designated CMT Maturity Index shall be two years.
Unless otherwise specified on the face hereof, the Calculation Date
pertaining to an Interest Determination Date shall be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if any such day is
not a Business Day, the next succeeding Business Day or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity Date or earlier
Redemption Date or Repayment Date. The Calculation Agent shall calculate the
interest rate hereon in accordance with the foregoing and will confirm in
writing such calculation to the Trustee and any Paying Agent immediately after
each determination. Neither the Trustee nor any Paying Agent shall be
responsible for any such calculation. At the request of the Holder hereof, the
Calculation Agent will provide the interest rate hereon then in effect and, if
determined, the interest rate which will become effective as of the next
Interest Reset Date.
7
<PAGE>
4. Payments in U.S. dollars of interest (other than interest payable on the
Maturity Date or earlier Redemption Date or Repayment Date), unless this Note is
a Global Security, will be made by check mailed to the Holder at the address
appearing on the Register on the applicable Record Date. Notwithstanding the
foregoing, the Company may at its option elect to make payments in U.S. dollars
by wire transfer of immediately available funds but only if appropriate payment
instructions have been received in writing by the Trustee not less than fifteen
calendar days prior to the applicable Interest Payment Date. Simultaneously
with any election by the Holder hereof to receive payments of principal and any
premium and interest in a Specified Currency other than U.S. dollars, such
Holder shall provide appropriate payment instructions to the Trustee, and all
such payments will be made in immediately available funds to an account
maintained by the payee with a bank located outside the United States. Unless
indicated on the face hereof that this Note is a Global Security, the principal
hereof and any premium and interest hereon payable on the Maturity Date or
earlier Redemption Date or Repayment Date will be paid in immediately available
funds upon surrender of this Note at the office or agency of the Company in The
City of New York. If indicated on the face hereof that this Note is a Global
Security, the principal hereof and any premium and interest due on any Interest
Payment Date or on the Maturity Date or earlier Redemption Date or Repayment
Date will be made available to the Trustee on such date. As soon as possible
thereafter, the Trustee will make such payments to the Depositary in accordance
with existing arrangements between the Trustee and the Depositary.
5. If specified on the face hereof, this Note may be redeemed, as a whole
or from time to time in part, at the option of the Company, unless otherwise
specified on the face hereof, on not less than 30 nor more than 60 days' prior
notice given as provided in the Indenture, on any Redemption Date(s) and at the
related Redemption Price(s) set forth on the face hereof. If less than all the
Outstanding Notes of like tenor and terms are to be redeemed, the particular
Notes to be redeemed shall be selected by the Trustee not more than 60 days
prior to the Redemption Date from the Outstanding Notes of like tenor and terms
not previously called for redemption. Such selection shall be of principal
amounts equal to the minimum authorized denomination for such Notes or any
integral multiple thereof. Subject to the immediately preceding sentence, such
selection shall be made by any method as the Trustee deems fair and appropriate.
The notice of such redemption shall specify which Notes are to be redeemed. In
the event of redemption of this Note in part only, a new Note or Notes of this
series of like tenor and terms for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof. The Notes of
this series are not subject to any sinking fund.
6. If specified on the face hereof, this Note will be subject to repayment
at the option of the Holder hereof on the Repayment Date(s) and at the Repayment
Price(s) indicated on the face hereof. If no such Repayment Date is set forth
on the face hereof, this Note may not be so repaid at the option of the Holder
hereof prior to the Maturity Date. On each Repayment Date, if any, this Note
shall be repayable in whole or in part at the option of the Holder hereof at the
applicable Repayment Price set forth on the face hereof, together with interest
thereon to the date of repayment. For this Note to be repaid in whole or in
part at the option of the Holder hereof, the Company must receive at the
Corporate Trust Office of the Trustee, or if so designated, at the office or
agency of the Company maintained for such purposes in the Borough of Manhattan,
The City of New York, unless otherwise specified on the face hereof, at least 15
days, but not more than 30 days, prior to the specified Repayment Date (i) this
Note with the form entitled "Option to Elect Repayment" below duly completed or
(ii) a telegram, telex, facsimile transmission or letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or a trust company in the United States of America
setting forth the name of the Holder of this Note, the principal amount of this
Note, the certificate number of this Note or a description of this Note's tenor
and terms, the principal amount of this Note to be repaid (which shall not be
less than the minimum authorized denomination of this Note), a statement that
the option to elect repayment is being exercised thereby and a guarantee that
this Note to be repaid with the form entitled "Option to Elect Repayment" on
this Note duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter and such Note and form duly completed are received by the Company by such
fifth Business Day. Exercise of such repayment option shall be irrevocable. Such
option may be exercised by the Holder for less than the entire principal amount
provided that the principal amount remaining outstanding after repayment, if
any, is an authorized denomination. All questions as to the validity,
eligibility (including time of receipt) and acceptance of any Note for repayment
will be determined by the Company whose determination will be final and binding.
8
<PAGE>
7. If the Specified Currency is other than U.S. dollars, unless the Holder
has elected otherwise, payment in respect of this Note shall be made in U.S.
dollars based upon the Exchange Rate, as determined by the exchange rate agent
appointed by the Company for such purpose as identified on the face hereof (the
"Exchange Rate Agent") based on the highest firm bid quotation for U.S. dollars
received by such Exchange Rate Agent at approximately 11:00 a.m. New York City
time on the second Business Day preceding the applicable payment date (or, if no
such rate is quoted on such date, the last date on which such rate was quoted)
from three recognized foreign exchange dealers in The City of New York selected
by the Exchange Rate Agent and approved by the Company (one of which may be the
Exchange Rate Agent) for the payment by the quoting dealer, for settlement on
such payment date, of the aggregate amount of the Specified Currency payable on
such payment date in respect of all Notes denominated in such Specified
Currency. All currency exchange costs will be borne by the Holders of such
Notes by deductions from such payments. If no such bid quotations are
available, payments will be made in the Specified Currency, unless such
Specified Currency is unavailable due to the imposition of exchange controls or
to other circumstances beyond the Company's control, in which case, the Company
will be entitled to make payments in respect hereof in U.S. dollars as provided
below.
If payment on this Note is required to be made in a Specified Currency
other than U.S. dollars and such currency is unavailable due to the imposition
of exchange controls or to other circumstances beyond the Company's control, or
is no longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions of or within the
international banking community, then all payments with respect to such Note
shall be made in U.S. dollars until such currency is again available or so used.
The amount so payable on any date in such Specified Currency shall be converted
into U.S. dollars by the Exchange Rate Agent on the basis of the most recently
available noon buying rate in The City of New York for cable transfers in such
Specified Currency as certified for customs purposes by the Federal Reserve Bank
of New York (the "Market Exchange Rate") on the most recent practicable date.
All determinations referred to above of the Exchange Rate Agent shall be
at its sole discretion (except to the extent expressly provided herein that any
determination is subject to approval of the Company). In the absence of
manifest error, such determinations shall be conclusive for all purposes and
binding upon all Holders of this Note.
8. If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all of the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture. If this Note is an
Original Issue Discount Note (as specified on the face hereof) and the principal
hereof is declared to be due and payable immediately pursuant to this Section,
the amount of principal due and payable with respect to this Note shall be
limited to the sum of the principal amount of this Note multiplied by the Issue
Price (expressed as a percentage of the aggregate principal amount), plus the
original issue discount accrued from the date of issue to the date of
declaration, which accrual shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting principles in effect
on the date of declaration).
9. The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series under the
Indenture to be effected at any time by the Company with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
10. No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein and in the
Indenture prescribed.
11. The Notes are issuable only in registered form without coupons. The
authorized denominations of Notes denominated in U.S. dollars will be U.S.
$1,000 and/or any amount in excess thereof which is an integral multiple of U.S.
$1,000. The authorized denominations of Notes denominated in currency other
than U.S. dollars will be as set forth on the face hereof.
9
<PAGE>
12. As provided in the Indenture and subject to certain limitations set
forth therein and herein, the transfer of this Note is registerable in the
Security Register, upon surrender of this Note for registration of transfer at
the office of the Security Registrar for this series (initially, The Bank of New
York). Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee or any transfer
agent) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Trustee, the Security Registrar or any
transfer agent, duly executed by the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Notes of like tenor and
terms of authorized denominations and for the same aggregate principal amount,
will be issued in the name or names of the designated transferee or transferees
and delivered at the office of the Security Registrar in The City of New York,
or mailed, at the request, risk and expense of the transferee or transferees, to
the addressee or addressees shown in the Security Register for such transferee
or transferees. The Company shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of the relevant notice of
redemption and ending at the close of business on the day for such mailing or
(ii) to register the transfer of or exchange any Note so selected for
redemption, in whole or in part, except the unredeemed portion of any such Note
being redeemed in part. No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
13. No recourse shall be had for the payment of the principal of or interest
on this Note, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any successor company, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
14. Unless otherwise defined herein, all terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
15. This Note, including without limitation the obligation of the Company
contained herein to pay the principal of and interest on this Note in accordance
with the terms hereof and of the Indenture, shall be construed in accordance
with and governed by the laws of the State of California.
16. "Global Security" and "Global Securities" means a Security or Securities
evidencing all or a part of a series of Securities, issued to the Depositary (as
hereinafter defined) for such Series or its nominee, and registered in the name
of such Depositary or its nominee. "Depositary" means, with respect to the
Securities of any series issuable or issued in whole or in part in the form of
one or more Global Securities, the person designated as the Depositary by the
Company.
17. If indicated on the face hereof that this Note is a Global Security, no
holder of any beneficial interest in this Note held on its behalf by a
Depositary or a nominee of such Depositary shall have any rights under the
Indenture with respect to such Global Security, and such Depositary or nominee
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary as Holder of
any Security.
18. If not indicated on the face hereof that this Note is a Global Security,
this Note is exchangeable for a like aggregate principal amount of Notes of a
different authorized denomination, as requested by the Holder surrendering the
same, as provided in the Indenture and subject to certain limitations therein
set forth. If indicated on the face hereof that this Note is a Global Security,
it is exchangeable, in whole but not in part, for Notes registered in the names
of Persons other than the Depositary or its nominee or in the name of a
successor to the Depositary or a nominee of such successor depositary only if
(i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Note or if at any time such Depositary ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and, in either case, a successor depositary is not appointed by the
Company within 90 days, (ii) the Company in its discretion at any time
determines not to have all of the Notes of this series represented by one or
more Global Security or Securities and notifies the Trustee thereof, or (iii) an
Event of Default has occurred and is continuing with respect to the Notes of
this series. If this Note is exchangeable pursuant to the preceding sentence, it
shall be exchangeable for Notes issuable in authorized denominations and
registered in such names as the Depositary holding this Note shall direct.
Subject to the foregoing, if this Note is a Global Security it is not
exchangeable, except for a Note or Notes of the same aggregate denominations to
be registered in the name of such Depositary or its nominee or in the name of a
successor to the Depositary or a nominee of such successor depositary.
10
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to the applicable Repayment Price thereof together with accrued and
unpaid interest to the Repayment Date, to the undersigned at
- -------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF THE UNDERSIGNED)
For this Note to be repaid, the Company must receive this Note, with
this "Option to Elect Repayment" form duly completed, at the office or agency of
the Company set forth in this Note, at least 15 days but not more than 30 days,
prior to the Repayment Date(s) (as set forth on the face hereof).
If less than the entire principal amount of this Note is to be repaid,
specify the portion thereof which the Holder elects to have repaid
________________; and specify the denomination or denominations (which shall be
in authorized denominations) of the Notes to be issued to the Holder for the
portion of this Note not being repaid (in the absence of any such specification,
one such Note will be issued for the portion not being repaid): ____.
Date: _________________
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as written
upon the face of this Note in every particular
without alteration or enlargement.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _______________________ Custodian _________________________
(Cust) (Minor)
under Uniform Gifts to Minors Act ___________________________________
(State)
Additional abbreviations may also be used though not in the above list.
11
<PAGE>
FORM OF
OPTION TO RENEW MATURITY
The undersigned hereby irrevocably requests and instructs the Company to
renew the Maturity Date to ________ of Transamerica Finance Corporation's
Subordinated Medium-Term Note represented by certificate number _____________
with respect to $___________ aggregate principal amount of such Note and
registered in the name of the undersigned.
For the Maturity Date of the Note to be renewed, the Trustee must
receive a notice in this form duly completed, together with the Note, at the
office or agency of the Trustee set forth in the Note, not less than ten nor
more than 30 Business Days prior to the applicable Notice of Renewal Date shown
on the face thereof.
Date:_______________________ ______________________________________
NOTICE: The signature on this Form must
correspond with the name as written upon
the face of the Note in every particular
without alteration or enlargement.
12
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto ____________________ [PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE] ____________________________________________ (PLEASE PRINT
OR TYPEWRITE NAME AND ADDRESS OF TRANSFEREE) the within Note, and all rights
thereunder, hereby irrevocably constituting and appointing
______________________________ Attorney to transfer said Note on the books of
the Company, with full power of substitution in the premises.
Date:___________________ ___________________________________
NOTICE: The signature to this
assignment must be guaranteed by a
commercial bank or trust company in
the continental United States or by a
firm or corporation having membership
on any national securities exchange or
in the National Association of
Securities Dealers, Inc., and must
correspond with the name as written
upon the face of the within instrument
in every particular without alteration
or enlargement or any change whatever.
13
<PAGE>
EXHIBIT 4.6
TRANSAMERICA FINANCE CORPORATION
Form of Warrant Agreement
[for warrants sold attached to Debt Securities]*
THIS WARRANT AGREEMENT dated as of ______________ between Transamerica
Finance Corporation, a Delaware corporation hereinafter called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to) and _______________________ as Warrant Agent (herein called the
"Warrant Agent").
WHEREAS, the Company has entered into an indenture (the "[Senior]
[Subordinated] Indenture") dated as of [FOR SENIOR DEBT: April 1, 1991 between
the Company and Harris Trust and Savings Bank, as trustee (the "Senior
Trustee")] [FOR SUBORDINATED DEBT: April 1, 1991 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")],
providing for the issuance from time to time of its unsecured [Senior]
[Subordinated] debentures, notes or other evidences of indebtedness (the
"[Senior] [Subordinated] Debt Securities"), to be issued in one or more series
as provided in the [Senior] [Subordinated] Indenture [if Warrant Securities are
-------------------------
not under same Indenture as Offered Securities -- and an indenture (the
- -----------------------------------------------
"[Senior] [Subordinated] Indenture", the [________________] and
[________________] Indentures being referred to collectively as the
"Indentures") dated as of ______________, ___ between the Company and
____________________, as trustee (the "[Senior] [Subordinated] Trustee", the
[___________________________] and [____________________] Trustees being referred
collectively as the "Trustees"), providing for the issuance from time to time of
its [Senior] [Subordinated] debentures, notes or other evidences of indebtedness
(the "[Senior] [Subordinated] Debt Securities", the [________________] and
[_____________] Debt Securities being referred to collectively as the "Debt
Securities"), to be issued in one or more series as provided in the
[_____________] Indenture]; and
_________________
*Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Warrants, Warrant Securities and Offered Securities. Monetary
amounts may be in U.S. dollars or in foreign currency or composite currencies.
<PAGE>
WHEREAS, the Company proposes to sell [title of Debt Securities being
offered] the ("Offered Securities") with warrant certificates evidencing one or
more warrants (the "Warrants" or individually a "Warrant") representing the
right to purchase [title of Debt Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. Warrants shall be initially issued in
--------------------
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after _________, _____ (the "Detachable Date")] [and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants. Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of ___________. Warrant Certificates shall be
initially issued in units with the Offered Securities and each Warrant
Certificate included in such a unit shall evidence _____ Warrants for each
_________ principal amount of Offered Securities included in such unit.
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
----------------------------------------------
Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated ___________ and may
have such letters, numbers, or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to
2
<PAGE>
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by its Chairman of the Board, its Vice Chairman of the
Board, its President or one of its Senior Vice Presidents or Vice Presidents
and by its Treasurer or one of its Assistant Treasurers or its Secretary or one
of its Assistant Secretaries under its corporate seal reproduced thereon. Such
signatures may be manual or facsimile signatures of such authorized officers and
may be imprinted or otherwise reproduced on the Warrant Certificates. The seal
of the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name at the time any Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that
Purpose. [If Offered Securities with Warrants which are not immediately
-------------------------------------------------------------
detachable -- or upon the register of the Offered Securities prior to the
- ----------
Detachable Date. Prior to the Detachable Date, the Company will, or will cause
the registrar of the Offered Securities to, make available at all times to the
Warrant Agent such information as to holders of the Offered Securities with
Warrants as may be necessary to keep the Warrant Agent's records up to date.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
--------------------------------
evidencing the right to purchase an aggregate principal amount not
3
<PAGE>
exceeding ___________ aggregate principal amount of Warrant Securities (except
as provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the Company
and delivered to the Warrant Agent upon the execution of this Warrant Agreement
or from time to time thereafter. The Warrant Agent shall, upon receipt of
Warrant Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
___________ principal amount of Warrant Securities and shall deliver such
Warrant Certificates to or upon the order of the Company. Subsequent to such
original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer, as hereinafter provided or as
provided in Section 2.03(c).
ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On _________, ____ the exercise price of
-------------
each Warrant will be ____________. During the period from ___________, ____
through and including _________, ____ the exercise price of each Warrant will be
_________ plus "accrued amortization of the original issue discount" "accrued
interest" from _________, ____. On _________, ____ the exercise price of each
Warrant will be _________. During the period from _________, ____, through and
including _________, ____, the exercise price of each Warrant will be _________
plus "accrued amortization of the original issue discount" "accrued interest"
from ___________, ____. [In each case, the original issue discount will be
amortized at a ___% annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months].
Such purchase price of Warrant Securities is referred to in this Agreement as
the "Warrant Price". [The original issue discount for each _________ principal
amount of Warrant Securities is _________.]
SECTION 2.02. Duration of Warrants. Each Warrant may be exercised in
--------------------
whole at any time, as specified herein, on or after [the date thereof]
[_________, ____] and at or before 5 P.M., [New York City] [San Francisco] time,
on ___________, ____ or such later date as the Company may designate, by notice
to the Warrant Agent and the holders of Warrant Certificates mailed to their
addresses as set forth in the record books of the Warrant Agent (the "Expiration
Date]). Each Warrant not exercised at or before 5 P.M., [New York City] [San
Francisco] time, on the Expiration Date shall become void, and all
4
<PAGE>
rights of the holder of the Warrant Certificate evidencing such Warrant under
this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period specified in
--------------------
Section 2.02 any whole number of Warrants may be exercised by providing certain
information as set forth on the reverse side of the Warrant Certificate and by
paying in full, in [lawful money of the United States of America] [applicable
currency,] [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] [in immediately available
funds] the Warrant Price for each Warrant exercised, to the Warrant Agent at its
corporate trust office [or at_________], provided that such exercise is subject
to receipt within five business days of such [payment] [wire transfer] by the
Warrant Agent of the Warrant Certificate with the form of election to purchase
Warrant Securities set forth on the reverse side of the Warrant Certificate
properly completed and duly executed. The date on which payment in full of the
Warrant Price is received by the Warrant Agent shall, subject to receipt of the
Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant
is exercised. The Warrant Agent shall deposit all funds received by it in
payment of the Warrant Price in an account of the Company maintained with it [if
non-dollar denominated funds -- or in such other account designated by the
Company] and shall advise the Company by telephone at the end of each day on
which a [payment] [wire transfer] for the exercise of Warrants is received of
the amount so deposited to its account. The Warrant Agent shall promptly
confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the [Trustee under the Indenture relating to
the Warrant Securities] of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which such holder is
entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise, and (iv)
such other information as the Company or such Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations to
or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is entitled, in fully
registered form, registered in such name or names as may be directed by such
holder. If fewer than all of the Warrants evidenced by such Warrant Certificate
are exercised, the Company shall execute, and an authorized officer of the
5
<PAGE>
Warrant Agent shall manually countersign and deliver a new Warrant Certificate
evidencing the number of such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Security until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants or
------------------------------------------------------------
Warrant Certificates. No Warrant Certificates or Warrant evidenced thereby
- --------------------
shall entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of
principal of, premium, if any, or interest on Warrant Securities or to enforce
any of the covenants in the [Indenture relating to the Warrant Securities].
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
---------------------------------------------------------
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, theft, destruction or mutilation
of any Warrant Certificate and of indemnity reasonably satisfactory to the
Warrant Agent and the Company and, in the case of mutilation, upon surrender
thereof to the Warrant Agent for cancellation, then, in the absence of notice to
the Company or the Warrant Agent that such Warrant Certificate has been acquired
by a bona fide purchaser, the Company shall execute, and an authorized officer
of the Warrant Agent shall manually countersign and deliver, in exchange for or
in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate at the same tenor and evidencing a like number of Warrants.
Upon the issuance of any new Warrant Certificate under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the lost, stolen or destroyed Warrant Certificate shall be at any
6
<PAGE>
time enforceable by anyone, and shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.
------------------------------------------------
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance, Transfer or Lease. If at
----------------------------------------------------
any time there shall be a merger, consolidation or conveyance or transfer of
assets subject to Section _____ of the [Indenture relating to the Warrant
Securities], then in any such event the successor or assuming corporation
referred to therein shall succeed to and be substituted for the Company, with
the same effect, subject to such Indenture, as if it had been named herein and
in the Warrant as the Company; the Company shall thereupon be relieved of any
further obligation hereunder or under the Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Warrants issuable hereunder which theretofore shall
not have been signed by the Company, and may execute and deliver Warrant
Securities in its own name pursuant to such Indenture, in fulfillment of its
obligations to deliver Warrant Securities upon exercise of the Warrants. All
the Warrants so issued shall in all respects have the same legal rank and
benefit under this Agreement as the Warrants theretofore or thereafter issued
in accordance with the terms of this Agreement as though all of such Warrants
had been issued at the date of the execution hereof. In any case of any such
consolidation, merger, conveyance or transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, conveyance or transfer
complies with the provisions of this Section 3.04 and such Indenture.
7
<PAGE>
ARTICLE IV
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates. If Offered
---------------------------------------------
Securities with Warrants which are not immediately detachable -- Prior to the
Detachable Date a Warrant Certificate may be exchanged or transferred only
together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security [on the register of the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable Date upon] surrender at the corporate trust office of the
Warrant Agent [or _________________________], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered. The
Warrant Agent shall keep, at its corporate trust office [and at
_________________________], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates, upon surrender of
the Warrant Certificates to the Warrant Agent at its corporate trust office [or
_________________________] for exchange or registration of transfer, properly
endorsed or accompanied by appropriate instruments of registration of transfer
and written instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent. No service charge shall be made for any exchange or
registration of transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are so surrendered
for exchange or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result in
the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or registration of transfer of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the
8
<PAGE>
same benefits under this Agreement, as the Warrant Certificate surrendered for
such exchange or registration of transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. Every holder
--------------------------------------------
of a Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and with every subsequent holder of such Warrant
Certificate that, until the transfer of the Warrant Certificate is registered on
the books of the Warrant Agent [or the register of the Offered Securities prior
to the Detachable Date], the Company and the Warrant Agent may treat the
registered holder of a Warrant Certificate as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any Warrant
------------------------------------
Certificate surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
-------------
_________________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth; and _________________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
-----------------------------------------
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees
9
<PAGE>
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
--------------------------------
pay the Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Warrant
Agent, arising out of or in connection with its acting as Warrant Agent
hereunder, as well as the costs and expenses of defending against any claim
of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement
---------------------
and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations
or relationship of agency or trust for or with any of the holders of
Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
-------
to it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
---------
no liability for or in respect of any action taken or thing suffered by it
in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
--------------------
directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of holders of Warrant Securities or other
obligations of the Company as freely as if it were not
10
<PAGE>
the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be
deemed to prevent the Warrant Agent from acting as Trustee under any of the
Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
-------------------------
Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
---------------------------
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent shall
-------------------------------------
not be responsible for any of the recitals or representations herein or in
the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
----------------------
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the Warrant Agent.
The Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the
payment of which within a reasonable time is not, in its reasonable
opinion, assured to it. The Warrant Agent shall not be accountable or
under any duty or responsibility for the use by the Company of any of the
Warrant Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent
shall have no duty or responsibility in case of any default by the Company
in the performance of its covenants or agreements contained herein or in
the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02 hereof, to make any demand
upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company
----------------------------------------
agrees, for the benefit of the holders from time to time of the
11
<PAGE>
Warrant Certificates, that there shall at all times be a Warrant Agent hereunder
until all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the date when it shall
become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall commence a voluntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or under any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due,
or shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law; or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant Agent
or of its property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
12
<PAGE>
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may be amended by the parties
---------
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable; provided that such action
shall not affect adversely the interests of the holders of the Warrant
Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If
-----------------------------------------------------
the Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. Addresses. Any communication from the Company to the
---------
Warrant Agent with respect to this Agreement shall be addressed to
13
<PAGE>
_________________________, Attention: _________________________ and any
communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Transamerica Finance Corporation, 600
Montgomery Street, San Francisco, California 94111, Attention of the Treasurer
(or such other address as shall be specified in writing by the Warrant Agent
or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
--------------
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of California.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to the
----------------------
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The Company will from
-----------------------------------
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States Federal and State
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933), which may be
or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing in
---------------------------------------------
this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several Articles
--------
and Sections of this Agreement are inserted for convenience only and
14
<PAGE>
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall be
-----------------------
available at all reasonable times at the principal corporate trust office of the
Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
15
<PAGE>
IN WITNESS WHEREOF Transamerica Finance Corporation and
_________________________ have caused this Agreement to be signed by their
respective duly authorized officers, and their respective corporate seals to be
affixed hereunto, and the same to be attested by their respective Secretaries or
one of their respective Assistant Secretaries, all as of the day and year first
above written.
TRANSAMERICA FINANCE
CORPORATION
By: __________________________
Title:
Attest:
______________________________
Title:
[Warrant Agent]
By: __________________________
Title:
Attest:
______________________________
Title:
16
<PAGE>
EXHIBIT 4.6
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Prior to __________________ this
Debt Securities with Warrant Certificate cannot be
Warrants which are not transferred or exchanged unless
immediately detachable. attached to a [Title of Offered
Securities].]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
TRANSAMERICA FINANCE CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. [NEW YORK CITY TIME], ON _____________, ____
No. __________ __________ Warrants
This certifies that _________________________ or registered assigns is
the registered owner of the above indicated number of Warrants, each Warrant
entitling such owner to purchase, at any time [after 5 P.M., [New York City]
time, on ____________, ____ and] on or before 5 P.M., [New York City] time, on
______, ____, __________ principal amount of [Title of Warrant Securities] (the
"Warrant Securities"), of Transamerica Finance Corporation (the "Company"),
issued and to be issued under the Indenture (as hereinafter defined), on the
following basis: [on ____________, ____ the exercise price of each Warrant will
be __________; during the period from ____________, ____, through and including
____________, ____, the exercise price of each Warrant will be __________ plus
[accrued amortization of the
A-1
<PAGE>
original issue discount] [accrued interest] from ____________, ____; on
___________, ____ the exercise price of each Warrant will be __________; during
the period from ____________, ____, through and including ____________, ____,
the exercise price of each Warrant will be __________ plus [accrued amortization
of the original issue discount] [accrued interest] from ____________, ____; [in
each case, the original issue discount will be amortized at a _____% annual
rate, computed on an annual basis using the "interest" method and using a 360-
day year consisting of twelve 30-day months] (the "Warrant Price"). [The
original issue discount for each __________ principal amount of Warrant
Securities is __________.] The holder may exercise the Warrants evidenced hereby
by providing certain information set forth on the back hereof and by paying in
full [in lawful money of the United States of America] [applicable currency] [in
cash or by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] in immediately available funds, the Warrant
Price for each Warrant exercised to the Warrant Agent (as hereinafter defined)
and by surrendering this Warrant Certificate, with the purchase form on the back
hereof duly executed, at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent"), [or
_________________________] currently at the address specified on the reverse
hereof, and upon compliance with and subject to the conditions set forth herein
and in the Warrant Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in denominations
of __________ and any integral multiples thereof. Upon any exercise of fewer
than all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the holder hereof a new Warrant Certificate evidencing the number of
Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ____________, ____ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at _________________________].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an indenture, dated as of [FOR SENIOR DEBT: April 1, 1991
between the Company and Harris Trust and Savings Bank] [FOR SUBORDINATED DEBT:
April 1, 1991 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 "Trustee") (the "Indenture"), and will be subject to the terms
and provisions contained in the Indenture. Copies of the
A-2
<PAGE>
Indenture and the form of the Warrant Securities are on file at the corporate
trust office of the Trustee [and at _________________________].
[If Offered Securities with registered Warrants which are not
-------------------------------------------------------------
immediately detachable -- Prior to ____________, ____ this Warrant Certificate
- ----------------------
may be exchanged or transferred only together with the [Title of Offered
Securities] ("Offered Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security. After such date, this
[If Offered Securities with registered Warrants which are immediately detachable
-------------------------------------------------------------------------------
- -- Transfer of this] Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent
[or _________________________] by the registered owner or his assigns, in person
or by an attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.]
[If Offered Securities with Warrants which are not immediately
-------------------------------------------------------------
detachable -- Except as provided in the immediately preceding paragraph, after]
- ----------
[If Offered Securities with Warrants which are immediately detachable - After]
--------------------------------------------------------------------
countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent for Warrant Certificates representing the same
aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of principal of, premium, if any, or interest, if
any, on the Warrant Securities or to enforce any of the covenants of the
Indenture.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of principal of, premium, if any, or interest, if
any, on the Warrant Securities or to enforce any of the covenants of the
Indenture.
A-3
<PAGE>
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________, ____.
TRANSAMERICA FINANCE
CORPORATION
By: ____________________________
Attest:
Countersigned:
___________________________________
As Warrant Agent
By: _______________________________
Authorized Signature
A-4
<PAGE>
EXHIBIT 4.6
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
[Dollars] [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer] [by bank wire transfer] [in immediately
available funds] the Warrant Price in full for Warrants exercised to [insert
name of Warrant Agent] [corporate trust department] [insert address of Warrant
Agent], Attn. _________________________ [or _________________________], which
[payment] [wire transfer] must specify the name of the holder and the number of
Warrants exercised by such holder. In addition, the holder must complete the
information required below and present this Warrant Certificate in person or by
mail (certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise __________
Warrants, evidenced by this Warrant Certificate, to purchase __________
principal amount of the [Title of Warrant Securities] (the "Warrant Securities")
of Transamerica Finance Corporation and represents that he has tendered
payment for such Warrant Securities in [Dollars] [applicable currency] [in
cash or by certified check or official bank check or by bank wire transfer, in
each case] [by bank wire transfer] in immediately available funds to the order
of Transamerica Finance Corporation, c/o [insert name and address of Warrant
Agent], in the amount of __________ in accordance with the terms hereof. The
undersigned requests that said principal amount of Warrant Securities be in
fully registered form in the authorized denominations, registered in such
names and delivered all as specified in accordance with the instructions set
forth below.
A-5
<PAGE>
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: ________________________ Name _________________________
______________________________ Address ______________________
(Insert Social Security or Other
______________________________
Identifying Number of Holder)
Signature ____________________
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at ________________________________________________________
________________________________________________________
________________________________________________________
________________________________________________________
By mail at ________________________________________________________
________________________________________________________
________________________________________________________
________________________________________________________
[Instructions as to form and delivery of Warrant Securities and,
if applicable, Warrant Certificates evidencing unexercised Warrants -- complete
as appropriate.]
A-6
<PAGE>
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby)
FOR VALUE RECEIVED _________________________ hereby sells, assigns and
transfers unto
______________________________ _______________________________________
(Please print name) (Please insert social security or other
identifying number)
______________________________
(Address)
______________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________________ Attorney, to
transfer said Warrant Certificate on the books of the Warrant Agent with full
power of substitution in the premises.
Dated:
_______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York, Midwest
or Pacific Stock Exchange
Signature Guaranteed
______________________________
A-7
<PAGE>
TRANSAMERICA FINANCE CORPORATION
Form of Warrant Agreement
[for warrants sold alone]*
THIS WARRANT AGREEMENT dated as of __________________ between
Transamerica Finance Corporation, a Delaware corporation hereinafter called
the "Company," which term includes any successor corporation under the
Indenture hereinafter referred to) and _________________________ as Warrant
Agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the "Indenture")
dated as of [FOR SENIOR DEBT: April 1, 1991 between the Company and Harris
Trust and Savings Bank] [FOR SUBORDINATED DEBT: April 1, 1991 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
"Trustee"), providing for the issuance from time to time of its unsecured
[Senior] [Subordinated] debentures, notes or other evidences of indebtedness
(the "Debt Securities"), to be issued in one or more series as provided in the
Indenture.
WHEREAS, the Company proposes to sell warrant certificates evidencing
one or more warrants (the "Warrants" or individually a "Warrant") representing
the right to purchase [title of Debt Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. Each Warrant Certificate shall
--------------------
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase a
Warrant Security in the principal amount of __________.
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
----------------------------------------------
Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated __________________ and
may have such letters, numbers, or other marks of identification or designation
and such legends or endorsements printed, lithographed or engraved thereon as
the officers of the Company executing the same
<PAGE>
may approve (execution thereof to be conclusive evidence of such approval) and
as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or one of its Executive Vice Presidents or
Vice Presidents and by its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. Such signatures may be manual or facsimile signatures of
such authorized officers and may be imprinted or otherwise reproduced on the
Warrant Certificates. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name at the time any Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that
Purpose.
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
--------------------------------
evidencing the right to purchase an aggregate principal amount not exceeding
_______________ aggregate principal amount of Warrant Securities (except as
provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
_______________ principal amount of Warrant Securities and shall deliver such
Warrant Certificates to or upon the order of the Company. Subsequent to such
original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer, as hereinafter provided or as
provided in Section 2.03(c).
2
<PAGE>
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On ____________, ____ the exercise
-------------
price of each Warrant will be __________. During the period from ____________,
____ through and including ____________, ____ the exercise price of each Warrant
will be __________ plus [accrued amortization of the original issue discount]
[accrued interest] from ____________, ____. On ____________, ____ the exercise
price of each Warrant will be __________. During the period from ____________,
____, through and including ____________, ____, the exercise price of each
Warrant will be __________ plus [accrued amortization of the original issue
discount] [accrued interest] from ____________, ____. [In each case, the
original issue discount will be amortized at a _____% annual rate, computed on
an annual basis using the "interest" method and using a 360-day year consisting
of twelve 30-day months]. Such purchase price of Warrant Securities is referred
to in this Agreement as the "Warrant Price". [The original issue discount for
each __________ principal amount of Warrant Securities is __________.]
SECTION 2.02. Duration of Warrants. Each Warrant may be exercised in
--------------------
whole at any time, as specified herein, on or after [the date thereof]
[____________, ____] and at or before 5 P.M., [New York City] [San Francisco]
time, on ____________, ____ or such later date as the Company may designate, by
notice to the Warrant Agent and the holders of Warrant Certificates mailed to
their addresses as set forth in the record books of the Warrant Agent (the
"Expiration Date"). Each Warrant not exercised at or before 5 P.M., [New York
City] [San Francisco] time, on the Expiration Date shall become void, and all
rights of the holder of the Warrant Certificate evidencing such Warrant under
this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period specified
--------------------
in Section 2.02 any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant Certificate
and by paying in full, in [lawful money of the United States of America]
[applicable currency,] [in cash or by certified check or official bank check or
by bank wire transfer, in each case,] [by bank wire transfer] [in immediately
available funds] the Warrant Price for each Warrant exercised, to the Warrant
Agent at its corporate trust office [or at _________________________], provided
that such exercise is subject to receipt within five business days of such
[payment] [wire transfer] by the Warrant Agent of the Warrant Certificate with
the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed. The date
on which payment in full of the Warrant Price is received by the Warrant Agent
shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to
be the date on which the Warrant is exercised. The Warrant Agent shall deposit
all funds received by it in payment of the Warrant Price in an account of the
Company maintained with it [if non-dollar denominated funds -- or in such other
-------------------------------
account designated by the Company] and shall advise the Company by telephone at
the end of each day on which a [payment] [wire transfer] for the exercise of
Warrants is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephone advice to the Company in writing.
3
<PAGE>
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee under the Indenture of (i)
the number of Warrants exercised, (ii) the instructions of each holder of
the Warrant Certificates evidencing such Warrants with respect to delivery
of the Warrant Securities to which such holder is entitled upon such
exercise, (iii) delivery of Warrant Certificates evidencing the balance, if
any, of the Warrants remaining after such exercise, and (iv) such other
information as the Company or the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations
to or upon the order of the holder of the Warrant Certificate evidencing
such Warrant, the Warrant Securities to which such holder is entitled, in
fully registered form, registered in such name or names as may be directed
by such holder. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and
deliver, a new Warrant Certificate evidencing the number of such Warrants
remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to
issue or deliver any Warrant Security until such tax or other charge shall
have been paid or it has been established to the Company's satisfaction
that no such tax or other charge is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
------------------------------------------------
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
- --------------------------------
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to receive the
payment of principal of, premium, if any, or interest on Warrant Securities or
to enforce any of the covenants in the Indenture.
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
--------------------------------------------
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
- ------------
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including
4
<PAGE>
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an
additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.
------------------------------------------------
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance, Transfer or Lease.
----------------------------------------------------
If at any time there shall be a merger, consolidation or conveyance or transfer
of assets subject to Section __________ of the Indenture, then in any such event
the successor or assuming corporation referred to therein shall succeed to and
be substituted for the Company, with the same effect, subject to the Indenture,
as if it had been named herein and in the Warrant as the Company; the Company
shall thereupon be relieved of any further obligation hereunder or under the
Warrants, and the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated. Such successor or
assuming corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Warrants issuable
hereunder which theretofore shall not have been signed by the Company, and many
execute and deliver Warrant Securities in its own name pursuant to the
Indenture, in fulfillment of its obligations to deliver Warrant Securities upon
exercise of the Warrants. All the Warrants so issued shall in all respects have
the same legal rank and benefit under this Agreement as the Warrants theretofore
or thereafter issued in accordance with the terms of this Agreement as though
all of such Warrants had been issued at the date of the execution hereof. In
any case of any such consolidation, merger, conveyance or transfer or lease,
such changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, conveyance or transfer
complies with the provisions of this Section 3.04 and the Indenture.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates. Upon
---------------------------------------------
surrender at the corporate trust office of the Warrant Agent [or
_________________________],
5
<PAGE>
Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants or the transfer
thereof may be registered in whole or in part; provided that such other Warrant
Certificates evidence the same aggregate number of Warrants as the Warrant
Certificates so surrendered. The Warrant Agent shall keep, at its corporate
trust office [and at _________________________], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or _________________________] for exchange or registration of
transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such
exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates duly
authorized and executed by the Company, as so requested. The Warrant Agent shall
not be required to effect any exchange or registration of transfer which will
result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the
Warrant Certificate surrendered for such exchange or registration of transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. Every
--------------------------------------------
holder of a Warrant Certificate, by accepting the same, consents and agrees with
the Company, the Warrant Agent and with every subsequent holder of such Warrant
Certificate that, until the transfer of the Warrant Certificate is registered on
the books of the Warrant Agent, the Company and the Warrant Agent may treat the
registered holder of a Warrant Certificate as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any Warrant
------------------------------------
Certificate surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
6
<PAGE>
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
-------------
_________________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth; and ____________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
-----------------------------------------
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
--------------------------------
pay the Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Warrant
Agent, arising out of or in connection with its acting as Warrant Agent
hereunder, as well as the costs and expenses of defending against any claim
of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and
---------------------
in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
-------
to it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
---------
no liability for or in respect of any action taken or thing suffered by it
in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
--------------------
directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same
7
<PAGE>
rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, it or they may
engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any
committee or body of holders of Warrant Securities or other obligations of
the Company as freely as if it were not the Warrant Agent hereunder.
Nothing in this Warrant Agreement shall be deemed to prevent the Warrant
Agent from acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
-------------------------
Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
---------------------------
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent shall
-------------------------------------
not be responsible for any of the recitals or representations herein or in
the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
----------------------
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the Warrant Agent.
The Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the
payment of which within a reasonable time is not, in its reasonable
opinion, assured to it. The Warrant Agent shall not be accountable or
under any duty or responsibility for the use by the Company of any of the
Warrant Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent
shall have no duty or responsibility in case of any default by the Company
in the performance of its covenants or agreements contained herein or in
the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02 hereof, to make any demand
upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
----------------------------------------
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its
8
<PAGE>
desired resignation shall become effective; provided that such date shall
not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be
removed at any time by the filing with it of an instrument in writing
signed by or on behalf of the Company and specifying such removal and the
date when it shall become effective. Such resignation or removal shall take
effect upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise
corporate trust powers) and the acceptance of such appointment by such
successor Warrant Agent. The obligation of the Company under Section
5.02(a) shall continue to the extent set forth therein notwithstanding the
resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other
applicable Federal or State bankruptcy, insolvency or similar law or shall
consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Warrant Agent or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action, or a decree or order
for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law; or a
decree or order by a court having jurisdiction in the premises shall have
been entered for the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or similar official) of the Warrant Agent
or of its property or affairs, or any public officer shall take charge or
control of the Warrant Agent or of its property or affairs for the purpose
of rehabilitation, conservation, winding up or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by
an instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
successor Warrant Agent of such appointment, the Warrant Agent shall cease
to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit
with or held by such predecessor, as Warrant Agent hereunder.
9
<PAGE>
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all
or substantially all the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant
Agent under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may be amended by the
---------
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided that
--------
such action shall not affect adversely the interests of the holders of the
Warrant Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent.
-----------------------------------------------------
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. Addresses. Any communication from the Company to the
---------
Warrant Agent with respect to this Agreement shall be addressed to
______________________, Attention: ____________________ and any communication
from the Warrant Agent to the Company with respect to this Agreement shall be
addressed to Transamerica Finance Corporation, 600 Montgomery Street, San
Francisco, California 94111, Attention of the Treasurer (or such other address
as shall be specified in writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
--------------
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of California.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to
----------------------
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
10
<PAGE>
SECTION 6.06. Obtaining of Governmental Approvals. The Company will
-----------------------------------
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect
of the Warrants and Warrant Securities under the Securities Act of 1933),
which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Securities issued upon exercise of the
Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing
---------------------------------------------
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several
--------
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement
-----------------------
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
11
<PAGE>
IN WITNESS WHEREOF Transamerica Finance Corporation and ___________
____________ have caused this Agreement to be signed by their respective duly
authorized officers, and their respective corporate seals to be affixed
hereunto, and the same to be attested by their respective Secretaries or one of
their respective Assistant Secretaries, all as of the day and year first above
written.
TRANSAMERICA FINANCE CORPORATION
By:_______________________________
Title:
Attest:
__________________________
Title:
[Warrant Agent]
By:_______________________________
Title:
Attest:
__________________________
Title:
12
<PAGE>
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
TRANSAMERICA FINANCE CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. [NEW YORK CITY TIME], ON __________, ____
No. _______ ___________ Warrants
This certifies that ___________________________ or registered assigns
is the registered owner of the above indicated number of Warrants, each Warrant
entitling such owner to purchase, at any time [after 5 P.M., [New York City]
time, on __________, ____ and] on or before 5 P.M., [New York City] time, on
__________, ____, _____________ principal amount of [Title of Warrant
Securities] (the "Warrant Securities"), of Transamerica Finance Corporation
(the "Company"), issued and to be issued under the Indenture (as hereinafter
defined), on the following basis: [on __________, ____ the exercise price of
each Warrant will be _________; during the period from __________, ____, through
and including __________, ____, the exercise price of each Warrant will be
__________ plus [accrued amortization of the original issue discount] [accrued
interest] from __________, ____; on __________, ____ the exercise price of each
Warrant will be __________; during the period from __________, ____, through and
including __________, ____, the exercise price of each Warrant will be
__________ plus [accrued amortization of the original issue discount] [accrued
interest] from __________, ____; [in each case, the original issue discount will
be amortized at a ____% annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months]
(the "Warrant Price"). [The original issue discount for each __________
principal amount of Warrant Securities is __________.] The holder may exercise
the Warrants evidenced hereby by providing certain information set forth on the
back hereof and by paying in full [in lawful money of the United States of
America] [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] in
immediately available funds, the Warrant Price for each Warrant exercised to the
Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the
corporate trust office of [name of Warrant Agent], or its successor as warrant
agent (the "Warrant Agent"), [or __________] currently at the address specified
on the reverse hereof, and upon compliance with and subject to the conditions
set forth herein and in the Warrant Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in denominations
of __________ and any integral multiples thereof. Upon any exercise of fewer
than all of the Warrants evidenced by
A-1
<PAGE>
this Warrant Certificate, there shall be issued to the holder hereof a new
Warrant Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of __________, ____ (the "Warrant Agreement") between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at __________].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an indenture, dated as of [FOR SENIOR DEBT: April 1, 1991
between the Company and Harris Trust and Savings Bank] [FOR SUBORDINATED DEBT:
April 1, 1991 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 "Trustee") (the "Indenture"), and will be subject to the terms
and provisions contained in the Indenture. Copies of the Indenture and the form
of the Warrant Securities are on file at the corporate trust office of the
Trustee [and at __________].
Transfer of this Warrant Certificate may be registered when this
Warrant Certificate is surrendered at the corporate trust office of the Warrant
Agent [or __________] by the registered owner or his assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.
After countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of principal of, premium, if any, or interest, if
any, on the Warrant Securities or to enforce any of the covenants of the
Indenture.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of principal of, premium, if any, or interest, if
any, on the Warrant Securities or to enforce any of the covenants of the
Indenture.
A-2
<PAGE>
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of __________, ____.
TRANSAMERICA FINANCE CORPORATION
By:_______________________________
Attest:
___________________________
Countersigned:
___________________________
As Warrant Agent
By:________________________
Authorized Signature
A-3
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
[Dollars] [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer] [by bank wire transfer] [in immediately
available funds] the Warrant Price in full for Warrants exercised to [insert
name of Warrant Agent] [corporate trust department] [insert address of Warrant
Agent], Attn. __________ [or __________], which [payment] [wire transfer] must
specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below
and present this Warrant Certificate in person or by mail (certified or
registered mail is recommended) to the Warrant Agent at the appropriate address
set forth below. This Warrant Certificate, completed and duly executed, must be
received by the Warrant Agent within five business days of the [payment] [wire
transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise __________
Warrants, evidenced by this Warrant Certificate, to purchase __________
principal amount of the [Title of Warrant Securities] (the "Warrant Securities")
of Transamerica Finance Corporation and represents that he has tendered
payment for such Warrant Securities in [Dollars] [applicable currency] [in cash
or by certified check or official bank check or by bank wire transfer, in each
case] [by bank wire transfer] in immediately available funds to the order of
Transamerica Finance Corporation, c/o [insert name and address of Warrant
Agent], in the amount of __________ in accordance with the terms hereof. The
undersigned requests that said principal amount of Warrant Securities be in
fully registered form in the authorized denominations, registered in such names
and delivered all as specified in accordance with the instructions set forth
below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: Name
_________________________ _________________________
Address
_______________________________ ______________________
(Insert Social Security or
Other Identifying Number of
Holder)
______________________
Signature
____________________
A-4
<PAGE>
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
By mail at
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants -- complete as
appropriate.]
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ___________________________________________ hereby
sells, assigns and transfers unto
______________________________ __________________________________
(Please print name) (Please insert social security
or other identifying number)
______________________________
(Address)
______________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and _______________ Attorney, to transfer said Warrant
Certificate on the books of the Warrant Agent with full power of substitution in
the premises.
A-5
<PAGE>
Dated:
_____________________________________________
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant Certificate and must bear a
signature guarantee by a bank, trust company
or member broker of the New York, Midwest or
Pacific Stock Exchange
Signature Guaranteed
____________________________
A-6
<PAGE>
EXHIBIT 5
December 14, 1998
Transamerica Finance Corporation
600 Montgomery Street
San Francisco, CA 94111
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, I have examined the Registration Statement on Form S-3 (the
"Registration Statement") in the form to be filed by Transamerica Finance
Corporation (the "Company") with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933, as amended
(the "Act"), of the Company's debt securities (the "Debt Securities")
consisting of Senior Debt Securities (the "Senior Securities") and/or
Subordinated Debt Securities (the "Subordinated Securities") and warrants to
purchase Debt Securities (the "Warrants") in an aggregate amount of up to
approximately $4,000,000,000 or the equivalent thereof in one or more foreign
currencies or composite currencies. The Senior Securities are to be issued
under an Indenture dated as of April 1, 1991 (the "Senior Indenture") between
the Company and Harris Trust and Savings Bank, as Trustee. The Subordinated
Securities 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 Trustee. Harris Trust and
Savings Bank and The Bank of New York are collectively referred to herein as
the Trustees. The Warrants are to be issued pursuant to a Warrant Agreement
(the "Warrant Agreement") in the form filed as an exhibit to the Registration
Statement. The Debt Securities and the Warrants are to be issued in the forms
filed as exhibits to the Registration Statement. The Debt Securities and the
Warrants are to be sold from time to time as set forth in the Registration
Statement, the Prospectus contained therein (the "Prospectus") and the
supplements to the Prospectus (the "Prospectus Supplements").
I have examined instruments, documents and records which I deemed relevant
and necessary for the basis of my opinion hereinafter expressed. In such
examination, I have assumed the following: (a) the authenticity of original
documents and the genuineness of all signatures; (b) the conformity to the
originals of all documents submitted to me as copies; and (c) the truth,
accuracy, and completeness of the information, representations and warranties
contained in the records, documents, instruments and certificates I have
reviewed.
Based on such examination, I am of the opinion that:
1. When the issuance of Debt Securities has been duly authorized by
appropriate corporate action and the Debt Securities have been duly executed,
authenticated and delivered in accordance with the related Indenture and sold
as described in the Registration Statement, any amendment thereto, the
Prospectus and any Prospectus Supplement relating thereto and, in the case of
Debt Securities issuable upon exercise of the Warrants, the Warrant Agreement,
the Debt Securities will be legal, valid and binding obligations of the
Company, entitled to the benefits of such Indenture.
2. When the issuance of the Warrants has been duly authorized by appropriate
corporate action and the Warrants have been duly executed, authenticated and
delivered in accordance with the Warrant Agreement and sold as described in the
Registration Statement, any amendment thereto, the Prospectus and the
Prospectus Supplement relating thereto, the Warrants will be legal, valid and
binding obligations of the Company entitled to the benefits of the Warrant
Agreement.
My opinion that any document is legal, valid and binding 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;
<PAGE>
(b) 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 such enforceability is considered in a proceeding in equity or at law.
I hereby consent to the filing of this opinion as an exhibit to the above-
referenced Registration Statement and to the use of my name wherever it appears
in the Registration Statement, the Prospectus, the Prospectus Supplement, and
in any amendment or supplement thereto. In giving such consent, I do not
believe that I am an "expert" within the meaning of such term as used in the
Act or the rules and regulations of the Securities and Exchange Commission
issued thereunder with respect to any part of the Registration Statement,
including this opinion as an exhibit or otherwise.
Very truly yours,
/s/ AUSTIN D. KIM
<PAGE>
EXHIBIT 12
TRANSAMERICA FINANCE CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Years Ended December 31,
----------------------------------------------------------------
1997 1996 1995 1994 1993
---------- ------------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Fixed charges:
Interest and debt expense........................... $ 354,379 $ 314,177 $ 307,512 $ 234,864 $ 172,221
One-third of rent expense........................... 23,784 8,705 8,598 16,455 12,956
---------- ------------- ----------- ----------- -----------
Total....................................... $ 378,163 $ 322,882 $ 316,110 $ 251,319 $ 185,177
========== ============= =========== =========== ===========
Earnings:
Income from continuing operations before income
taxes and extraordinary loss on early
extinguishment of debt in 1993.................... $ 192,512 $ 221,076 $ 222,809 $ 166,804 $ 69,189
Fixed charges....................................... 378,163 322,882 316,110 251,319 185,177
---------- ------------- ----------- ----------- -----------
Total....................................... $ 570,675 $ 543,958 $ 538,919 $ 418,123 $ 254,366
========== ============= =========== =========== ===========
Ratio of earnings to fixed charges.......................... 1.51 1.68 1.70 1.66 1.37
========== ============= =========== =========== ===========
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 to be filed on December 16, 1998 and related
Prospectus of Transamerica Finance Corporation for the registration of
$4,000,000,000 of Senior and Subordinated Debt Securities and Warrants to
Purchase Debt Securities and to the incorporation by reference therein of our
report dated January 23, 1998, with respect to the consolidated financial
statements and schedule of Transamerica Finance Corporation included in its
Annual Report (Form 10-K) for the year ended December 31, 1997, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
San Francisco, California
December 14, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF ORRICK, HERRINGTON & SUTCLIFFE LLP
We hereby consent to the use of our name wherever it appears in the
Registration Statement in the form to be filed by Transamerica Finance
Corporation on December 16, 1998 (the "Registration Statement"), the related
Prospectus and Prospectus Supplement, and in any amendment or supplement
thereto. In giving such consent, we do not believe that we are "experts" within
the meaning of such term as used in the Securities Act of 1933, as amended, or
the rules and regulations of the Securities and Exchange Commission issued
thereunder with respect to any part of the Registration Statement.
/s/ ORRICK, HERRINGTON & SUTCLIFFE LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
1
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
Each of the undersigned hereby constitutes and appoints PHILIP RICE, DANIEL
J. HEINRICH and AUSTIN KIM, and each of them with power to act alone, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Registration Statement on Form S-3 and any related
registration statements filed pursuant to Rule 462 and otherwise for
Transamerica Finance Corporation, and any and all amendments thereto (including
post-effective amendments), and to file the same, together with exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto each such attorney-in-fact full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises hereof, as fully to all intents
and purposes as he or she might do or could do in person, hereby ratifying and
confirming all that each such attorney-in-fact or his substitute may lawfully
do or cause to be done by virtue hereof.
Executed on the 14th day of December, 1998.
<TABLE>
<S> <C>
/s/ THOMAS J. CUSACK /s/ CHARLES E. TINGLEY
___________________________________________ ___________________________________________
Thomas J. Cusack Charles E. Tingley
/s/ EDGAR H. GRUBB /s/ MITCHELL F. VERNICK
___________________________________________ ___________________________________________
Edgar H. Grubb Mitchell F. Vernick
/s/ FRANK C. HERRINGER /s/ ROBERT A. WATSON
___________________________________________ ___________________________________________
Frank C. Herringer Robert A. Watson
/s/ STEVEN A. READ
___________________________________________
Steven A. Read
</TABLE>
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as Trustee
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) ______
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Carolyn Potter, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
312-461-2531 phone 312-461-3525 facsimile
(Name, address and telephone number for agent for service)
TRANSAMERICA FINANCE CORPORATION
(Obligor)
Delaware 95-1077235
(State of Incorporation) (I.R.S. Employer Identification No.)
The Transamerica Pyramid
600 Montgomery Street
San Francisco California 94111
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164 West
Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. through 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee as now in effect
which includes the authority of the trustee to commence business and to
exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in effect
and includes the authority of the Trustee to commence business and to
exercise corporate trust powers was filed in connection with the
Registration Statement of Louisville Gas and Electric Company, File No.
2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Commercial Federal Corporation, File
No. 333-20711, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 1st day of December, 1998.
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. BARTOLINI
-------------------------
J. Bartolini
Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. BARTOLINI
-------------------------
J. Bartolini
Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of September 30, 1998, as published in accordance with
a call made by the State Banking Authority and by the Federal Reserve Bank of
the Seventh Reserve District.
[LOGO FOR HARRIS BANK]
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on September 30, 1998, a state banking institution organized and
operating under the banking laws of this State and a member of the Federal
Reserve System. Published in accordance with a call made by the Commissioner of
Banks and Trust Companies of the State of Illinois and by the Federal Reserve
Bank of this District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
Cash and balances due from depository institutions:
<S> <C> <C>
Non-interest bearing balances and currency and coin..................... $ 1,097,714
Interest bearing balances............................................... $ 213,712
Securities:....................................................................
a. Held-to-maturity securities $ 0
b. Available-for-sale securities $ 5,036,734
Federal funds sold and securities purchased under agreements to resell $ 48,950
Loans and lease financing receivables:
Loans and leases, net of unearned income................................ $9,111,098
LESS: Allowance for loan and lease losses.............................. $ 104,900
----------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b).................................................... $ 9,006,198
Assets held in trading accounts................................................ $ 202,008
Premises and fixed assets (including capitalized leases)....................... $ 245,290
Other real estate owned........................................................ $ 365
Investments in unconsolidated subsidiaries and associated companies............ $ 41
Customer's liability to this bank on acceptances outstanding................... $ 34,997
Intangible assets.............................................................. $ 260,477
Other assets................................................................... $ 1,148,163
-----------
TOTAL ASSETS $17,294,649
===========
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
Deposits:
<S> <C> <C>
In domestic offices.......................................................... $ 9,467,895
Non-interest bearing.................................................... $2,787,471
Interest bearing........................................................ $6,680,424
In foreign offices, Edge and Agreement subsidiaries, and IBF's............... $ 1,268,759
Non-interest bearing.................................................... $ 23,329
Interest bearing........................................................ $1,245,430
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBF's:
Federal funds purchased & securities sold under agreements to repurchase....... $ 3,118,548
Trading Liabilities 110,858
Other borrowed money:..........................................................
a. With remaining maturity of one year or less $ 1,202,050
b. With remaining maturity of more than one year $ 0
Bank's liability on acceptances executed and outstanding $ 34,997
Subordinated notes and debentures.............................................. $ 225,000
Other liabilities.............................................................. $ 530,224
-----------
TOTAL LIABILITIES $15,958,331
===========
EQUITY CAPITAL
Common stock................................................................... $ 100,000
Surplus........................................................................ $ 604,834
a. Undivided profits and capital reserves..................................... $ 580,271
b. Net unrealized holding gains (losses) on available-for-sale securities $ 51,213
-----------
TOTAL EQUITY CAPITAL $ 1,336,318
===========
Total liabilities, limited-life preferred stock, and equity capital............ $17,294,649
===========
</TABLE>
I, Pamela Piarowski, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
PAMELA PIAROWSKI
10/29/98
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
CHARLES SHAW
Directors.
4
<PAGE>
EXHIBIT 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [_]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
TRANSAMERICA FINANCE CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 95-1077235
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 Montgomery Street
San Francisco, California 94111
(Address of principal executive offices) (Zip code)
-----------------------
Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
- -------------------------------------------
Name Address
- -------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 3/rd/ day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARIE E. TRIMBOLI
-----------------------------
Name: MARIE E. TRIMBOLI
Title: ASSISTANT TREASURER
<PAGE>
Exhibit 7
________________________________________________________________________________
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin........ $ 7,301,241
Interest-bearing balances................................. 1,385,944
Securities:
Held-to-maturity securities............................... 1,000,737
Available-for-sale securities............................. 4,240,655
Federal funds sold and Securities purchased under agreements
to resell.............................................. 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income ................. 38,788,269
LESS: Allowance for loan and lease losses ................ 632,875
LESS: Allocated transfer risk reserve..................... 0
Loans and leases, net of unearned income, allowance,
and reserve............................................ 38,155,394
Assets held in trading accounts............................. 1,307,562
Premises and fixed assets (including capitalized leases).... 670,445
Other real estate owned..................................... 13,598
Investments in unconsolidated subsidiaries and associated
companies.............................................. 215,024
Customers' liability to this bank on acceptances
outstanding............................................ 974,237
Intangible assets........................................... 1,102,625
Other assets................................................ 1,944,777
-----------
Total assets................................................ $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $26,930,258
Noninterest-bearing ......................................... 11,579,390
Interest-bearing ............................................ 15,350,868
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................. 16,117,854
Noninterest-bearing ......................................... 187,464
Interest-bearing ............................................ 15,930,390
Federal funds purchased and Securities
sold under agreements to repurchase.......................... 2,170,238
Demand notes issued to the U.S.
Treasury..................................................... 300,000
Trading liabilities............................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less.................. 2,549,479
With remaining maturity of more than one year through three
years..................................................... 0
With remaining maturity of more than three years............. 46,654
Bank's liability on acceptances executed and outstanding....... 983,398
Subordinated notes and debentures.............................. 1,314,000
Other liabilities.............................................. 2,295,520
-----------
Total liabilities.............................................. 54,018,268
===========
EQUITY CAPITAL
Common stock................................................... 1,135,284
Surplus........................................................ 731,319
Undivided profits and capital reserves......................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 51,233
Cumulative foreign currency translation adjustments............ ( 37,639)
-----------
Total equity capital........................................... 5,265,424
-----------
Total liabilities and equity capital .......................... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
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