EXHIBIT 1.2
December 1998
TRANSAMERICA FINANCE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS FOR DEBT SECURITIES AND WARRANTS
(DECEMBER 1998)
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 ▇▇▇▇▇▇ 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
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.
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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.
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(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) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, and
(ii) ▇▇▇▇▇▇ ▇. ▇▇▇, 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, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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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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
▇▇▇▇ ▇▇▇) 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.
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(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 ▇▇▇▇ ▇▇▇) 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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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 ▇▇▇▇▇'▇ 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 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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.
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EXHIBIT A
FORM OF OPINION OF
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
The opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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
(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
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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.
A-3
EXHIBIT B
FORM OF OPINION OF
▇▇▇▇▇▇ ▇. ▇▇▇
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
OF
TRANSAMERICA FINANCE CORPORATION
The opinion of ▇▇▇▇▇▇ ▇. ▇▇▇, 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
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
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
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
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
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