Japanese Yen ("Y") 50,000,000,000
TOYOTA MOTOR CREDIT CORPORATION
(a California corporation)
0.750 Notes due 2008
PURCHASE AGREEMENT
June 1, 2001
NOMURA INTERNATIONAL PLC
DAIWA SECURITIES SMBC EUROPE LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
TOKYO-MITSUBISHI INTERNATIONAL PLC
UBS AG, acting through its business group UBS Warburg
c/o NOMURA INTERNATIONAL PLC
Nomura House
▇ ▇▇. ▇▇▇▇▇▇'s-le-Grand
London EC1A 4NP
England
as Representative of the Underwriters
Ladies and Gentlemen:
Toyota Motor Credit Corporation, a California corporation (the "Company"),
confirms its agreement with Nomura International plc ("Nomura"), Daiwa
Securities SMBC Europe Limited, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, Salomon Brothers International Limited, Tokyo-Mitsubishi
International plc, and UBS AG, acting through its business group UBS Warburg
(collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 11 hereof), for
which Nomura is acting as representative with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and not
jointly, of the respective principal amounts set forth in Schedule A attached
hereto of (Y)50,000,000,000 aggregate principal amount of the Company's
0.750% Notes due 2008 (the "Securities"). The Company is a wholly owned
subsidiary of Toyota Financial Services Americas Corporation, a holding
company owned 100% by Toyota Financial Services Corporation ("TFSC"). TFSC is
a wholly owned subsidiary of Toyota Motor Corporation. The Securities are to
be issued pursuant to an indenture dated as of August 1, 1991, as amended by
the First Supplemental Indenture, dated as of October 1, 1991 (collectively,
the "Indenture")
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among the Company, The Chase Manhattan Bank, as trustee (the "Trustee") and
Bankers Trust Company.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (No. 333-89659) covering
registration of debt securities, including the Securities, under the
Securities Act of 1933, as amended (the "1933 Act"), which registration
statement has been declared effective by the Commission and copies of which
have heretofore been delivered to you. The Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
Registration Statement, in the form in which it was declared effective,
including any amendments or supplements thereto in the form such amendments
or supplements became effective, and any documents incorporated by reference
therein through the date hereof, and at the Closing Time (as defined in
Section 2(b)), is hereinafter referred to as the "Registration Statement."
The Company proposes to file with the Commission pursuant to paragraph (b) of
Rule 424 ("Rule 424(b)") of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations") a prospectus supplement (the
"Prospectus Supplement"), dated as of the date hereof, and a prospectus (the
"Base Prospectus"), dated as of the date hereof, each relating to the
Securities and the distribution thereof and has previously advised you of all
further information (financial and other) with respect to the Company set
forth therein. The Base Prospectus, as supplemented by the Prospectus
Supplement, together in the form in which they are filed with the Commission
pursuant to Rule 424(b) and including all documents incorporated or deemed to
be incorporated by reference therein, are hereinafter referred to as the
"Prospectus," except that if any revised prospectus shall be provided to the
Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus filed with the Commission
pursuant to Rule 424(b) (whether or not such revised prospectus is required
to be filed by the Company pursuant to Rule 424(b)), the term "Prospectus"
shall refer to such revised prospectus from and after the time it is first
provided to the Underwriters for such use. As used herein, the term
"Prospectus Supplement" shall refer to the Prospectus Supplement dated as of
the date hereof used with respect to the Securities. Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such
filing the term "Registration Statement" shall include any Rule 462(b)
Registration Statement. For purposes of this Agreement, all references to the
Registration Statement, the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934 (the
"1934 Act") which is incorporated by reference in the Registration Statement
or the Prospectus, as the case may be.
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The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after
this Agreement has been executed and delivered.
1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Underwriter as of the
date hereof that:
(i) The Company meets the requirements for use of Form S-3 under the
1933 Act. At the time the Registration Statement became effective, the
Registration Statement complied and at the Closing Time, the Registration
Statement will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and the 1939 Act, and the rules
and regulations of the Commission promulgated thereunder (the "1939 Act
Regulations") and no stop order suspending the effectiveness of the
Registration Statement (including any Rule 462(b) Registration Statement)
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company,
are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. The
Registration Statement (including any Rule 462(b) Registration Statement)
at the time it became effective, did not, and each time thereafter at
which any amendment to the Registration Statement (including any Rule
462(b) Registration Statement) becomes effective and as of the Closing
Time, will not, considering the Registration Statement and all
Incorporated Documents (as defined in Section 5(b)(3)) considered as a
whole, contain an 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. The Prospectus, as of the date hereof
does not, and at the Closing Time, will not, contain an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided however, that the representations
and warranties in this subsection shall not apply to that part of the
Registration Statement which shall constitute the Statements of
Eligibility under the 1939 Act on Form T-1 of the Trustee or Bankers Trust
Company, as the case may be, or apply to statements or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through Nomura expressly for use in the Registration Statement
or Prospectus. Each Prospectus delivered to the Underwriters for use in
connection with this offering will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(ii) The accountants who certified the financial statements included
or incorporated by reference in the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iii) The financial statements and any supporting schedules of the
Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the consolidated financial position of the
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Company and its consolidated subsidiaries as of the dates indicated and
the consolidated results of their operations for the periods specified;
and, except as stated therein, said financial statements have been
prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis; and any supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein.
(iv) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business (which
includes, but is not limited to, Euromarket, Euro Asian or global
financings and domestic private placement and public financing), which are
material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) since the date of the most recent audited
financial statements of the Company, there has been no dividend or
distribution of any kind in excess of U.S.$4,000,000 declared, paid or
made by the Company on any class of its capital stock except as otherwise
disclosed in the documentation relating to the Securities.
(v) The Company (A) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
California with corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus,
(B) has the requisite corporate power and authority to execute and deliver
this Agreement, the Indenture and the Securities and to perform its
obligations hereunder and thereunder, (C) has duly authorized, executed
and delivered this Agreement and this Agreement constitutes the valid and
binding agreement of the Company, and (D) is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or
the conduct of its business requires such qualification and in which the
failure to do so would materially adversely affect the business or
financial condition of the Company.
(vi) Each "significant subsidiary", if any, of the Company (as such
term is defined in Rule 1-02 of Regulation S-X under the 1933 Act) (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
materially affect the business or financial condition of the Company;
except as otherwise disclosed in the Prospectus, all of the issued and
outstanding capital stock of each such Subsidiary has been duly authorized
and validly issued, is fully paid and non-
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assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of
preemptive or similar rights of any securityholder of such Subsidiary.
(vii) The Indenture has been duly and validly authorized, executed
and delivered by the Company and assuming it has been duly and validly
authorized, executed and delivered by the Trustee, constitutes a legally
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by the application of 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.
(viii) The Securities have been duly and validly authorized by the
Company for issuance, offer and sale pursuant to this Agreement and, when
executed, authenticated and delivered pursuant to the provisions of the
Indenture and this Agreement against payment of the consideration set
forth herein and in the Prospectus, will constitute legally valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without limitation, fraudulent
conveyance laws) and by the application of general principles of equity ,
including without limitation, the 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; and the Securities will be entitled to the
benefits of the Indenture; and the Securities and the Indenture conform in
all material respects to all statements relating thereto contained in the
Registration Statement and the Prospectus.
(ix) Neither the Company nor any of its Subsidiaries is in violation
of its charter or bylaws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its Subsidiaries is a party or
by which it may be bound, or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, which violation or default
would materially adversely affect the business or financial condition of
the Company and its Subsidiaries considered as one enterprise; and the
execution, delivery and performance of this Agreement and the Indenture
and the consummation of the transactions contemplated herein and therein
will not conflict with, or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Subsidiaries
pursuant to, any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of its
Subsidiaries is a party or by which it may be bound, or to which any of
the property or assets of the Company or any of its Subsidiaries is
subject, nor will such action result in any violation of the provisions of
the charter or
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bylaws of the Company or any of its Subsidiaries or, to the best
knowledge of the Company and any of its Subsidiaries, any law,
administrative regulation or administrative or court decree, and no
consent, approval, authorization, order or decree of any court or
governmental agency or body of the United States is required for the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such as may be required under the 1933
Act or the 1933 Act Regulations or the 1939 Act or the 1939 Act
Regulations or as may be required by state securities or Blue Sky laws.
(x) Except as set forth in the Registration Statement, there is no
action, suit or proceeding before or by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against the Company or any of its subsidiaries which
is required to be disclosed in the Registration Statement or which might
in the opinion of the Company result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the properties
or assets thereof or which might materially and adversely affect the
consummation of this Agreement; all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or
of which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary
routine litigation incidental to its business, are, considered in the
aggregate, not material; and there are no contracts or documents of the
Company or any of its subsidiaries which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xi) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently conducted
where its ownership or lease of substantial properties or the conduct of
its business requires such ownership or possession or the obtaining of
such governmental licenses, permits, consents, orders, approvals and other
authorizations and where the failure to do so would materially adversely
affect the business or financial condition of the Company and its
subsidiaries considered as one enterprise.
(xii) The documents incorporated by reference in the Prospectus, at
the time they were filed with the Commission, complied in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission promulgated thereunder (the "1934 Act
Regulations"), and, when read together with the other information in or
incorporated by reference in the Prospectus, did not contain an 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, in the
light of the circumstances under which they were made, not misleading.
(xiii) The Company is not, and upon issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an
6
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(xiv) The Securities, upon issuance, will be excluded or exempted
under, or beyond the purview of, the Commodity Exchange Act, as amended,
and the rules and regulations of the Commodity Futures Trading Commission
under the Commodity Exchange Act.
(xv) The information contained in the Prospectus Supplement under
the caption "Description of the Notes - Credit Support" is accurate in all
material respects and does not contain 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 are made, not
misleading.
(xvi) Each of the Credit Support Agreements, one between Toyota
Motor Corporation and Toyota Financial Services Corporation ("TFS"), dated
July 14, 2000, and the other between TFS and the Company, dated October 1,
2000, remains in full force and effect without modification or amendment
on the date hereof.
(b) Any certificate delivered pursuant to this Agreement or the
transactions contemplated hereby and signed by any director or officer of the
Company and delivered to Nomura or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matter covered thereby on the date of such certificate.
(c) Each Underwriter severally represents and agrees to the following
selling restrictions with respect to the Securities:
(i) No action has been or will be taken by the Underwriters that
would permit a public offering of the Securities or possession or
distribution of the Prospectus or any offering material in relation to the
Securities in any jurisdiction where action by the Company for that
purpose is required unless the Company has agreed to such actions and such
actions have been taken;
(ii) it will comply with all applicable laws and regulations known
by it, or that should have reasonably been known by it, in each
jurisdiction in which it purchases, offers or sells the Securities or
possesses or distributes the Prospectus or any other offering material and
will obtain any consent, approval or permission required by it for the
purchase, offer or sale by it of the Securities under the laws and
regulations in force in any jurisdiction to which it is subject or in
which it makes such purchases, offers or sales and the Company shall have
no responsibility therefor;
(iii) it will not offer, sell or deliver any of the Securities or
distribute any such offering material in or from any jurisdiction except
under circumstances which will result in compliance with applicable laws
and regulations and which will not impose any obligation on the Company or
the Underwriters;
(iv) no Underwriter is authorized to give any information or make
any representations in relation to the Securities other than those
contained in the Prospectus
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and such additional information, if any, as the Company shall, in
writing, provide to and authorize the Underwriter so to use and
distribute to actual and potential purchasers of Securities. Each
Underwriter agrees that unless prohibited by applicable law, it will
make available upon the request of each person to whom it offers or sells
the Securities a copy of the Prospectus for the Securities;
(v) the Securities have been registered under the 1933 Act and
accordingly such Act will not prohibit offers and sales in the United
States or to or for the account of a U.S. person. Confirmations of all
sales must be accompanied or preceded by delivery of the Prospectus, and
all sales must otherwise be made in accordance with the provisions of the
1933 Act and applicable state securities laws;
(vi) each Underwriter agrees to comply with the requirements of
Regulation M under the 1934 Act, to the extent applicable to it;
(vii) each Underwriter will be subject to the applicable rules of
the United States National Association of Securities Dealers, Inc.
("NASD") and the 1934 Act, as set forth in the Agreement Among
Underwriters dated as of the date hereof. The Underwriters are prohibited
from reallowing any part of the combined management and underwriting
commission or selling concession until the distribution of the Securities
is completed, except with respect to the sales by Underwriters to
non-Underwriter dealers which may be made at a price not less than the
public offering price minus the reallowance;
(viii) it has not offered or sold and, prior to the expiry of the
period of six months from the issue date of the Securities, will not offer
or sell any Securities to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995, as amended;
(ix) it has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connection with the
issue of the Securities to a person who is of a kind described in Article
11(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996, as amended, or is a person to whom such document
may otherwise lawfully be issued or passed on;
(x) it has complied and will comply with all applicable provisions
of the Financial Services Act 1986 with respect to anything done by it in
relation to any Securities in, from or otherwise involving the United
Kingdom; and
(xi) the Securities have not been and will not be registered under
the Securities and Exchange Law of Japan (the "Securities and Exchange
Law"). Each Underwriter severally agrees that it will not offer or sell
any Securities, directly or indirectly, in Japan or to, or for the benefit
of, any resident of Japan (which term as used herein means any person
resident in Japan, including any corporation or other entity organized
under the
8
laws of Japan) or to others for re-offering or resale, directly or
indirectly, in Japan or to a resident of Japan, except pursuant to an
exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law and any other applicable
laws, regulations and ministerial guidelines of Japan.
2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees
to sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at the price
set forth in Schedule B, the aggregate amount of Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
(b) Payment of the purchase price for, and delivery of the certificates
for, the Securities shall be made at the offices of O'Melveny & ▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other place
as shall be agreed upon by Nomura and the Company, at 7:00 a.m., Los Angeles
time, on June 8, 2001 (unless postponed in accordance with Section 11
hereof), or such other time not later than ten business days after such date
as shall be agreed upon by Nomura and the Company (such time and date of
payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to Nomura for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. Certificates for the
Securities shall be in such denominations ((Y)1,000,000 or integral multiples
thereof) and registered in such names as the Underwriters may request in
writing at least two business days before Closing Time. It is understood that
each Underwriter has authorized Nomura, for their respective accounts, to
accept delivery of, receipt for, and make payment of the purchase price for,
the Securities it has agreed to purchase. Nomura, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
The certificates for the Securities will be made available for examination
and packaging by Nomura not later than 10:00 a.m. on the last business day
prior to Closing Time at the offices of The Chase Manhattan Bank.
3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) The Company, subject to Section 3(b), will comply with the
requirements of Rule 424(b), as applicable, and will promptly notify the
Underwriters and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any
9
amendment or supplement to the Prospectus or for additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any Prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation of any proceedings for any of
such purposes; and (v) any change in the rating assigned by any
nationally recognized statistical rating organization to any debt
securities (including the Securities) of the Company, or the public
announcement by any nationally recognized statistical rating
organization that it has under surveillance or review, with possible
negative implications, its rating of any such debt securities, or the
withdrawal by any nationally recognized statistical rating organization
of its rating of any such debt securities since the date of this
Agreement. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus.
The Company will make every reasonable effort to prevent the issuance of
any such stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) The Company will give the Underwriters notice of its intention
to file or prepare any additional registration statement with respect to
the registration of additional Securities, any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus (other than an amendment or supplement providing solely for the
establishment of or change in, the interest rates, maturities, price or
other terms of the Securities or similar changes or an amendment or
supplement which relates exclusively to an offering of debt securities
under the Registration Statement other than the Securities), whether by
the filing of documents pursuant to the 1934 Act (other than any Current
Report on Form 8-K relating exclusively to the issuance of debt securities
under the Registration Statement other then the Securities), the 1933 Act,
or otherwise and will furnish the Underwriters with copies of any such
amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or
preparation, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Underwriters or counsel
for the Underwriters shall reasonably object.
(c) The Company has delivered or will deliver to the Underwriters as
many conformed copies of the Registration Statement (as originally filed)
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) as the Underwriters may reasonably
request. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The Company has delivered and will deliver to each Underwriter,
from time to time during the period when the Prospectus is required to be
delivered under the
10
1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request for
the purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission
thereunder. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters shall be identical to the electronically
transmitted copies of thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(e) If any event shall occur as a result of which it is necessary,
in the reasonable opinion of counsel for the Underwriters or counsel for
the Company, to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it
is required to be delivered to a purchaser, or if it shall be necessary in
the reasonable opinion of either such counsel, to amend or supplement the
Registration Statement or Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act, the 1933
Act or otherwise so as maybe necessary to correct such untrue statement or
omission, and the Company will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as the Underwriters may designate; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualifications in effect for a period of not less than one year from the
effective date of this Agreement. The Company will promptly advise the
Underwriters of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale
in any state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close
of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering a
twelve month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined
in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(i) Immediately following the execution of this Agreement, the
Company will prepare, and file or transmit for filing with the Commission
in accordance with Rule
11
424(b), copies of a Prospectus containing the terms of the Securities
and such other information as the Underwriters and the Company deem
appropriate.
(j) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Section 13,
14 or 15 of the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
(k) From the date of this Agreement until Closing Time, the Company
will not, without the prior written consent of Nomura, directly or
indirectly, sell, offer to sell, contract to sell, or otherwise dispose
of, or announce the offering of, any debt securities denominated in
Japanese Yen, or any security exchangeable into such debt securities, or
indexed to Japanese Yen, except for any non-syndicated Japanese Yen
transactions under the Company's Euro Medium Term Note Program.
(l) The Company shall use its best efforts to obtain approval for
the listing of the Securities on the Luxembourg Stock Exchange by the
Closing Time or as soon thereafter as practicable.
4. PAYMENT OF EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (a) the
preparing, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (b) the printing and delivery of this Agreement, the Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (c) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, (d) the fees and disbursements of the
Company's counsel and accountants, (e) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof (not to
exceed $5,000), including filing fees and the fee and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (f) the printing
and delivery to the Underwriters of the Prospectus and any amendments or
supplements thereto, (g) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (h)
fees and expenses of the Trustee and any paying agents, including fees and
disbursements of counsel for the Trustee in connection with the Securities, (h)
any fees of ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Ratings Group,
a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and (i) all costs and expenses
relating to the listing of the Securities on the Luxembourg Stock Exchange. In
addition, the Company will pay to Nomura a (Y)5,000,000 expense reimbursement,
and Nomura will be responsible for payment of the Underwriters' legal fees and
expenses.
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 5 or Section 10(a)(i) hereof, the Company shall, as
previously agreed, reimburse the Underwriters for their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
12
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the Company contained in Section 1 hereof or in certificates of
any officer of Company delivered pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at Closing Time no stop
order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of the Underwriters. A prospectus shall have been
filed with the Commission in accordance with Rule 424(b).
(b) At Closing Time, the Underwriters shall have received:
(i) The opinion, dated as of Closing Time, of ▇▇▇▇ ▇▇▇▇▇,
Esq., General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(A) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
California.
(B) The Company has corporate power and corporate
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and in each
document filed pursuant to the 1934 Act and incorporated by
reference into the Prospectus.
(C) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company, and has been
duly executed and delivered by the Company.
(D) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company and has been
duly executed and delivered by the Company and the Indenture has
been qualified under the 1939 Act. If California law were to apply,
the Indenture would constitute a legally valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by the application of 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.
(E) The Securities (in the form of specimen certified by
the Company's Secretary and examined by such counsel) are in a form
permitted by the Indenture, and have been duly authorized by all
necessary corporate action on
13
the part of the Company for issuance, offer and sale to the
Underwriters as contemplated by this Agreement and as provided
for in the Prospectus. If California law were to apply, the
Securities when executed and authenticated as specified in the
Indenture and delivered against payment of the purchase price
therefor pursuant to this Agreement, would constitute legally valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by the application of
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; and the Securities will be entitled to the benefits of
the Indenture.
(F) To such counsel's knowledge, the Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which its ownership or lease
of substantial properties or the conduct of its business requires
such qualification and in which the failure to so qualify and be in
good standing would materially adversely affect its business or
financial condition.
(G) The Registration Statement has been declared
effective under the 1933 Act and, to his knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(H) At the time the Registration Statement became
effective, the Registration Statement (other than the financial
statements and supporting schedules and other financial, statistical
and accounting data included or incorporated by reference and the
Statements of Eligibility on Form T-1 filed as exhibits therein, as
to which no opinion need be rendered) appeared on its face to comply
as to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the 1939
Act Regulations.
(I) The information in the Prospectus under the captions
"Description of the Notes" and "Description of Debt Securities" to
the extent that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has been
reviewed by him and is correct in all material respects.
(J) No authorization, approval, consent or order of any
court or governmental authority or agency is required in connection
with the sale of the Securities to the Underwriters, except such as
may be required under the 1933 Act or the 1933 Act Regulations or
the 1939 Act or the 1939 Act Regulations or state securities laws.
14
(K) Each document filed pursuant to the 1934 Act (other
than the financial statements and supporting schedules and other
financial, statistical and accounting data included therein, as to
which no opinion need be rendered) and incorporated by reference in
the Prospectus when filed, appeared on its face to comply as to form
in all material respects with the 1934 Act and the 1934 Act
Regulations thereunder in effect at the date of their filing.
(L) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required to
be disclosed in the Registration Statement or in each document filed
pursuant to the 1934 Act and incorporated by reference in the
Prospectus, other than those disclosed therein, and all pending
legal or governmental proceedings to which the Company or any of its
Subsidiaries is a party or to which any of their property is subject
which are not described in the Registration Statement or in each
document filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material.
(M) To such counsel's knowledge, no default exists in
the due performance or observance by the Company of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
described or referred to in the Registration Statement or filed as
an exhibit thereto or incorporated by reference therein, which
default would have a material adverse effect on the financial
condition, earnings, business affairs, business prospects,
properties or results of operations of the Company and its
subsidiaries considered as one enterprise.
(N) The execution and delivery of this Agreement, the
Indenture, the Securities and the consummation of the transactions
contemplated herein and therein will not (x) conflict with or
constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, any
material contract, indenture, mortgage, loan agreement, note, lease
or other instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company
or any of its subsidiaries is subject, (y) result in any violation
of the provisions of the charter or bylaws of the Company, or (z) to
such counsel's knowledge, result in any violation of any applicable
law, administrative regulation or administrative or court decree.
(O) The shares of issued and outstanding Common Stock of
the Company have been duly authorized and validly issued and are
fully paid and non-assessable.
(P) To such counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the
Registration Statement or in each
15
document filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus, or to be filed as exhibits thereto
other than those described or referred to therein or filed as
exhibits thereto, and the descriptions thereof are correct in all
material respects.
Additionally such counsel shall state that he does not believe that the
Registration Statement and each document filed pursuant to the 1934 Act and
incorporated by reference therein (each, an "Incorporated Document")
considered as a whole as of the time the Registration Statement 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 and the
Incorporated Documents, considered as a whole, as of the date of the
Prospectus Supplement and at the Closing Time, 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. Such counsel may state that they express no
view as to the Statements of Eligibility on Form T-1, financial statements
and supporting schedules and other financial, statistical and accounting data
included or incorporated by reference in such Registration Statement or
Prospectus.
(ii) The opinion, dated as of Closing Time, of O'Melveny &
▇▇▇▇▇ LLP, counsel for the Underwriters, to the effect that:
(A) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
California.
(B) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company, and has been
duly executed and delivered by the Company.
(C) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company and has been
duly executed and delivered by the Company and the Indenture has
been qualified by the 1939 Act. Assuming the due authorization,
execution and delivery thereof by the Trustee, the Indenture
constitutes a legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) and by
the application of 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.
(D) The Securities (in the form of specimen certified by
the Company's Secretary and examined by such counsel) are in a form
permitted by the Indenture, have been duly authorized by all
necessary corporate action on the part of the Company for issuance,
offer and sale to the Underwriters as contemplated by this
Agreement, when executed and authenticated as specified in the
Indenture and delivered against payment of the purchase price
therefor
16
pursuant to this Agreement and as provided for in the Prospectus,
will constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally (including, without limitation, fraudulent
conveyance laws) and by the application of 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; and the Securities will be entitled to the benefits of the
Indenture.
(E) The Registration Statement has been declared
effective under the 1933 Act and, to their knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(F) At the Closing Time, the Registration Statement
(other than the financial statements and supporting schedules and
other financial and statistical data included therein, as to which
no opinion need be rendered) appeared on its face to comply as to
form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the 1939 Act
Regulations.
(G) The Company is not an "investment company" as such
term is defined in the 1940 Act.
Additionally, such counsel shall state, based upon its review and
participation in conferences with officers and other representatives of
the Company and representatives of the Company's independent public
accountants at which the Registration Statement and the Prospectus were
discussed, no facts have come to their attention that has caused them to
believe that the Registration Statement and the Incorporated Documents,
considered as a whole as of the time the Registration Statement 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 and the
Incorporated Documents, considered as whole, as of the date of the
Prospectus Supplement and at the Closing Time, 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. Such counsel may state that
they make no statement as to Statements of Eligibility on Form T-1, the
financial statements and supporting schedules and other financial,
statistical and accounting data contained or incorporated by reference
therein.
(iii) The favorable opinion of O'Melveny & ▇▇▇▇▇ LLP, special
tax counsel for the Underwriters, dated as of the Closing Time, to
the effect that for federal income tax purposes, the statements in
the Prospectus under the headings "Description of the Notes
-Redemption for Tax Reasons" and "United States Federal Taxation,"
to the extent such matters constitute matters of law or legal
17
conclusions with respect thereto or fairly summarize the terms of
the Notes are correct in all material respects.
(c) At Closing Time there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement or the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and the Underwriters shall have received a certificate
of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly made
at and as of Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and to
their knowledge, no proceedings for that purpose have been initiated or
threatened by the Commission.
(d) At the time of execution of this Agreement, the Underwriters
shall have received from PricewaterhouseCoopers LLP a letter dated as of
such date, in form and substance satisfactory to the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain other information
contained in the Registration Statement and the Prospectus.
(e) At Closing Time, the Underwriters shall have received from
PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (f) of this Section, except that the date referred
to shall be a date not more than three business days prior to Closing
Time.
(f) At Closing Time, the Company's long term debt shall be rated at
least Aa1 by ▇▇▇▇▇'▇ Investor's Service, Inc. and AAA by Standard & Poor's
Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and since the
date of this Agreement, there shall not have occurred a downgrading in the
ratings assigned to the Company's long term debt by any "nationally
recognized statistical rating agency", as that term is defined by the
Commission for the purposes of Rule 436(g)(2) under the 1933 Act, and no
such organization shall have publicly announced that it has under
surveillance or review its ratings of the long term debt of the Company.
(g) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all
18
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(h) At Closing Time, the Company shall have caused to be made an
application for the listing of the Securities on the Luxembourg Stock
Exchange.
(i) At Closing Time, all consents of the Ministry of Finance of
Japan (the "MOF"), if any, required for the Company to issue the
Securities shall have been obtained. After the Closing Time, the Company
shall cause to be made all filings required by the MOF in connection with
the Securities.
(j) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Company at any time at or
prior to Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 4 hereof.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all reasonable expenses whatsoever, as
incurred (including the reasonable fees and disbursements of counsel
chosen by Nomura to the extent authorized in Section 6(c)) reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
19
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Nomura expressly for use in the
Registration Statement (or any amendment thereto), or the Prospectus (or any
amendments or supplements thereto), and provided further, however, that the
indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any Underwriter with respect to any loss, liability, claim, damage
or expense arising from the sale of Securities by such Underwriter to any
person if all of the following occur: (x) such Underwriter has failed to send
or give a copy of the Prospectus (excluding documents incorporated by
reference therein), as it may then have been amended or supplemented, to that
person at or prior to the time of written confirmation of such sale to the
extent necessary in accordance with applicable law; (y) the untrue statement
or alleged untrue statement of a material fact in or omission or alleged
omission of a material fact from a previous form of Prospectus was corrected
in the Prospectus, as then amended or supplemented; and (z) such Underwriter
shall have been notified as to such amendment or supplement as set forth
herein and the Company shall have delivered copies of the Prospectus, as so
amended or supplemented, to such Underwriter.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions made in the Registration Statement (or any amendment
or supplement thereto), or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Nomura expressly for use
in the Registration Statement (or any amendment or supplement thereto) or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt written notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party of such commencement shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may assume the defense of the indemnified
party by retaining counsel reasonably satisfactory to the indemnified party
to represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
disbursements of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. In no
20
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations
or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent does not contain a statement as to or an
admission of fault, culpability, or a failure to act by or on behalf of any
indemnified party (unless such statement is agreed to by the indemnified
party in writing); provided, however, that in the event such settlement,
compromise or consent by the indemnifying party does not include an
unconditional release of each indemnified party from all liability arising
out of any litigation, investigation, proceeding or claim, the provisions of
this section with respect to indemnification shall continue and survive.
7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any
reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters, as
incurred, in such proportions that each Underwriter is responsible for that
portion represented by the percentage that the total commissions and
underwriting discounts received by such Underwriter pursuant to this
Agreement to the date of such liability bears to the initial public offering
price of the Securities sold to or through such Underwriter to the date of
such liability to which such losses, liabilities, claims, damages or expenses
relate and the Company is responsible for the balance; provided, however,
that 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.
If, however, the allocation provided in the previous paragraph is not
permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect, not only the relative benefits received by the
Company on the one hand, and the applicable Underwriter(s), on the other
hand, in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses but also the relative fault
of the Company, on the one hand, and the applicable Underwriters, on the
other hand in connection with the offering of the Securities that were the
subject of the claim for indemnification. 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 respective proportions as the total proceeds (net of the
total discounts or commissions) from the sale of the Securities (before
deducting expenses) received by the Company bears to the total discount or
commission received by the applicable Underwriters in respect thereof. The
relative fault of the Company, on the one hand, and the applicable
Underwriters, on the other
21
hand, shall be determined by reference to, among other things, whether any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the applicable Underwriter(s) and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into
account of the equitable considerations referred to above in Section 6. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission covered by
Section 6(a) hereof.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
principal amount of Securities set forth opposite their respective names in
Schedule A hereto and not joint.
8. CURRENCY INDEMNITY. If, under any applicable law and whether
pursuant to a judgment being made or registered against the Company or for
any other reason, any payment under or in connection with this Agreement is
made or is to be satisfied in a currency (the "other currency") other than
that in which the relevant payment is expressed to be due (the "required
currency") under this Agreement, then, to the extent that the payment (when
converted into the required currency at a rate of exchange on the date of
payment or, if it is not practicable for the Underwriters to purchase the
required currency with the other currency on the date of payment, at the rate
of exchange as soon thereafter as it is practicable to do so) actually
received by the Underwriters falls short of the amount due under the terms of
this Agreement, the Company shall, as a separate and independent obligation,
indemnify and hold harmless the Underwriters against the amount of such
shortfall. For the purpose of this Clause, "rate of exchange" means the rate
at which the Underwriters are able on the London foreign exchange market on
the relevant date to purchase the required currency with the other currency
and shall take into account any premium and other reasonable costs of
exchange.
22
9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, indemnities and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
10. TERMINATION OF AGREEMENT.
(a) The Underwriters may terminate this Agreement, immediately upon
notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the execution of this Agreement or since the respective dates
as of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, or (ii) if there shall have occurred any outbreak or escalation
of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the
reasonable judgment of the Underwriters (after consultation with the
Company), impracticable to market the Securities or enforce contracts for the
sale of the Securities, (iii) if there has been a change in regional or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would in the view of the Underwriters
be likely to prejudice materially the success of the offering and
distribution of the Securities or dealings in the Securities in the secondary
market, or (iv) if trading in any securities of the Company has been
suspended by the Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by
federal, California or New York authorities, or (v) if the rating assigned by
either Standard & Poor's or ▇▇▇▇▇'▇ Investors Service, Inc. to any debt
securities of the Company shall have been lowered or if either such rating
agency shall have, subsequent to the date of this Agreement, publicly
announced that it has placed any debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof.
11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail at Closing Time to purchase the Securities which it
or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Underwriters shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Underwriters shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities, the
non-defaulting Underwriters
23
shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Underwriters or the Company shall have the right to
postpone Closing Time for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or Prospectus or in any other
documents or arrangements.
12. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Underwriters at Nomura International plc, Nomura House, ▇ ▇▇.
▇▇▇▇▇▇'▇-▇▇-▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, Attention: Legal Department; and
notices to the Company shall be directed to it at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of Vice President--Treasury.
13. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any underwriter shall be deemed to
be a successor by reason merely of such purchase.
14. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original hereof.
15. CAPTIONS. The captions in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
16. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except where otherwise
provided, specified times of day refer to New York City time.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive
Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
NOMURA INTERNATIONAL PLC
DAIWA SECURITIES SMBC EUROPE LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
TOKYO-MITSUBISHI INTERNATIONAL PLC
UBS AG, acting through its business group UBS Warburg
By: NOMURA INTERNATIONAL PLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney
For themselves and as Representative of the
Underwriters named in Schedule A hereto.
S-1
SCHEDULE A
PRINCIPAL AMOUNT
NAME OF UNDERWRITER OF SECURITIES
------------------- -----------------
Nomura International plc ....................... Y 23,750,000,000
Daiwa Securities SMBC Europe Limited............ Y 23,750,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ International..................... Y 500,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ International..................... Y 500,000,000
Salomon Brothers International Limited.......... Y 500,000,000
Tokyo-Mitsubishi International plc.............. Y 500,000,000
UBS AG, acting through its business group
UBS Warburg .............................. Y 500,000,000
================
Total Y 50,000,000,000
A-1
SCHEDULE B
1. The initial public offering price of the Securities shall be 99.592% of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Securities
shall be 99.292% of the principal amount thereof.
3. The interest rate on the Securities shall be 0.750% per annum.
B-1