TOYOTA MOTOR CREDIT CORPORATION
and
[_____________] COMPANY
as Trustee
Indenture
dated as of [_____], 1998
[$_______________________]
TMCC Demand Notes
CROSS-REFERENCE TABLE
(not a part of this Indenture)
TIA Indenture
Section Section
------- -------
(Section) 310(a) (1). . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a) (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a) (3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a) (4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a) (5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
7.10
11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(Section) 311(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(Section) 312(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(Section) 313(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b) (1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(Section) 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.09
4.10
11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
11.02
(c) (1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c) (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c) (3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.09(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(Section) 315(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
(Section) 316(a) (last sentence). . . . . . . . . . . . . . . . . . . 2.09
(a) (1) (A). . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a) (1) (B). . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a) (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.04
TIA Indenture
Section Section
------- -------
(Section) 317(a) (1) . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
(Section) 318(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
---------
N.A. means not applicable
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE. . . . . . . . . . 1
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Incorporation by Reference of TIA. . . . . . . . . . . . 1
Section 1.03. Rules of Construction. . . . . . . . . . . . . . . . . . 2
ARTICLE II. THE SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.01. Form; Title and Terms. . . . . . . . . . . . . . . . . . 2
Section 2.02. Execution and Authentication . . . . . . . . . . . . . . 3
Section 2.03. Securities Register. . . . . . . . . . . . . . . . . . . 5
Section 2.04. Paying Agent to Hold Money in Trust. . . . . . . . . . . 5
Section 2.05. Holder Lists . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.06. Transfer and Exchange. . . . . . . . . . . . . . . . . . 5
Section 2.07. Replacement Securities . . . . . . . . . . . . . . . . . 6
Section 2.08. Outstanding Securities . . . . . . . . . . . . . . . . . 7
Section 2.09. Securities Not Outstanding . . . . . . . . . . . . . . . 7
Section 2.10. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . 8
Section 2.13. Persons Deemed Owners. . . . . . . . . . . . . . . . . . 9
Section 2.14. Computation of Interest. . . . . . . . . . . . . . . . . 9
ARTICLE III. REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.01. Redemption . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.01. Payment of Securities. . . . . . . . . . . . . . . . . . 9
Section 4.02. Maintenance of Office or Agency; Paying Agent and
Registrar. . . . . . . . . . . . . . . . . . . . . . . .10
Section 4.03. Company Statement as to Compliance; Notice of
Certain Defaults . . . . . . . . . . . . . . . . . . . .10
Section 4.04. Periodic Reports . . . . . . . . . . . . . . . . . . . .11
ARTICLE V. CONSOLIDATIONS AND MERGERS, ETC . . . . . . . . . . . . . . .11
Section 5.01. Company May Consolidate, Etc., Only on Certain Terms . .11
Section 5.02. Successor Person Substituted for Company . . . . . . . .12
i
TABLE OF CONTENTS
(CONTINUED)
Page
ARTICLE VI. DEFAULT AND REMEDIES. . . . . . . . . . . . . . . . . . . . .12
Section 6.01. Events of Default. . . . . . . . . . . . . . . . . . . .12
Section 6.02. Acceleration of Maturity; Rescission and Annulment . . .13
Section 6.03. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . .13
Section 6.04. Trustee May File Proofs of Claim . . . . . . . . . . . .14
Section 6.05. Trustee May Enforce Claims without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . .15
Section 6.06. Application of Money Collected . . . . . . . . . . . . .15
Section 6.07. Limitation on Suits. . . . . . . . . . . . . . . . . . .16
Section 6.08. Unconditional Right of Holders to Receive Principal and
Interest . . . . . . . . . . . . . . . . . . . . . . . .16
Section 6.09. Restoration of Rights and Remedies . . . . . . . . . . .16
Section 6.10. Rights and Remedies Cumulative . . . . . . . . . . . . .17
Section 6.11. Delay or Omission Not Waiver . . . . . . . . . . . . . .17
Section 6.12. Control by Holders of Securities . . . . . . . . . . . .17
Section 6.13. Waiver of Past Defaults. . . . . . . . . . . . . . . . .17
Section 6.14. Undertaking for Costs. . . . . . . . . . . . . . . . . .18
ARTICLE VII. TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 7.01. Duties of Trustee. . . . . . . . . . . . . . . . . . . .18
Section 7.02. Rights of Trustee. . . . . . . . . . . . . . . . . . . .19
Section 7.03. Individual Rights of Trustee . . . . . . . . . . . . . .20
Section 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . .20
Section 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . .20
Section 7.06. Reports by Trustee to Holders. . . . . . . . . . . . . .20
Section 7.07. Compensation and Indemnity . . . . . . . . . . . . . . .21
Section 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . .21
Section 7.09. Successor Trustee by ▇▇▇▇▇▇, Etc . . . . . . . . . . . .23
Section 7.10. Eligibility; Disqualification. . . . . . . . . . . . . .23
Section 7.11. Preferential Collection of Claims Against Company. . . .23
ARTICLE VIII. DEFEASANCE; SATISFACTION AND DISCHARGE. . . . . . . . . . . .23
Section 8.01. Defeasance of the Indenture. . . . . . . . . . . . . . .23
ii
TABLE OF CONTENTS
(CONTINUED)
Page
Section 8.02. Satisfaction and Discharge of the Indenture. . . . . . .24
Section 8.03. Survival of Certain Obligations. . . . . . . . . . . . .25
Section 8.04. Acknowledgment of Discharge by Trustee . . . . . . . . .25
Section 8.05. Application of Trust Money . . . . . . . . . . . . . . .25
Section 8.06. Repayment to the Company . . . . . . . . . . . . . . . .26
Section 8.07. Reinstatement. . . . . . . . . . . . . . . . . . . . . .26
ARTICLE IX. AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . . . . . . .26
Section 9.01. Without Consent of Holders . . . . . . . . . . . . . . .26
Section 9.02. With Consent of Holders. . . . . . . . . . . . . . . . .27
Section 9.03. [Reserved] . . . . . . . . . . . . . . . . . . . . . . .28
Section 9.04. Revocation and Effect of Consents. . . . . . . . . . . .28
Section 9.05. Notation on or Exchange of Securities. . . . . . . . . .29
Section 9.06. Trustee to Sign Amendments, Etc. . . . . . . . . . . . .29
Section 9.07. Effect of Supplemental Indentures. . . . . . . . . . . .29
ARTICLE X. MEETINGS OF AND ACTIONS BY HOLDERS. . . . . . . . . . . . . .30
Section 10.01. Purposes for Which Meetings may be Called. . . . . . . .30
Section 10.02. Manner of Calling Meetings . . . . . . . . . . . . . . .30
Section 10.03. Call of Meetings by Company or Holders . . . . . . . . .30
Section 10.04. Who May Attend and Vote at Meetings. . . . . . . . . . .31
Section 10.05. Regulations may be Made by Trustee; Conduct of the
Meeting; Voting Rights; Adjournment. . . . . . . . . . .31
Section 10.06. Voting at the Meeting and Record to be Kept. . . . . . .32
Section 10.07. Exercise of Rights of Trustee or Holders May Not be
Hindered or Delayed by Call of Meeting . . . . . . . . .32
Section 10.08. Evidence of Action Taken by Holders. . . . . . . . . . .32
Section 10.09. Proof of Execution of Instruments and of Holding of
Securities . . . . . . . . . . . . . . . . . . . . . . .33
Section 10.10. Right of Revocation of Action Taken. . . . . . . . . . .33
ARTICLE XI. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . .34
Section 11.01. TIA Controls . . . . . . . . . . . . . . . . . . . . . .34
Section 11.02. Notices. . . . . . . . . . . . . . . . . . . . . . . . .34
Section 11.03. Communications by Holders with Other Holders . . . . . .35
iii
TABLE OF CONTENTS
(CONTINUED)
Page
Section 11.04. Certificate and Opinion as to Conditions Precedent . . .35
Section 11.05. Statements Required in Certificate or Opinion. . . . . .35
Section 11.06. Rules by Trustee, Paying Agent, Registrar. . . . . . . .36
Section 11.07. Legal Holidays . . . . . . . . . . . . . . . . . . . . .36
Section 11.08. Governing Law. . . . . . . . . . . . . . . . . . . . . .36
Section 11.09. No Adverse Interpretation of Other Agreements. . . . . .36
Section 11.10. No Recourse Against Others . . . . . . . . . . . . . . .36
Section 11.11. Successors . . . . . . . . . . . . . . . . . . . . . . .36
Section 11.12. Duplicate Originals. . . . . . . . . . . . . . . . . . .36
Section 11.13. Severability . . . . . . . . . . . . . . . . . . . . . .36
Section 11.14. Headings and Table of Contents . . . . . . . . . . . . .37
iv
EXHIBITS
▇▇▇▇▇ I , Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
Exhibit A , Form of Security . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B , Form of Demand . . . . . . . . . . . . . . . . . . . . . . . . B-1
v
INDENTURE dated as of [________], 1998, between Toyota Motor Credit
Corporation, a California corporation (the "Company"), and [_____________]
Company, a New York banking corporation, as trustee (the "Trustee").
RECITALS
A. The Company is duly authorized to execute and deliver this Indenture
and to provide for the issuance by the Company of the Securities as provided
herein.
B. All things have been done that are necessary to make the Securities,
when executed by the Company and authenticated and delivered by the Trustee
hereunder, the valid and binding legal obligations of the Company in accordance
with the terms of this Indenture.
C. For and in consideration of the premises and the purchase of the
Securities by the Holders, each party hereto agrees as follows for the benefit
of each other party and for the equal and ratable benefit of the Holders.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE.
SECTION 1.01. DEFINITIONS.
All capitalized terms used in this Indenture and not defined elsewhere
herein shall have the meanings assigned to them in Annex I, which is hereby
incorporated by reference in and made a part of this Indenture.
SECTION 1.02. INCORPORATION BY REFERENCE OF ▇▇▇.
Wherever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
1
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) unless otherwise expressly provided in this Indenture, an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP and all financial computations required under this
Indenture shall be made in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(7) "including" shall be deemed to mean "including, without
limitation."
ARTICLE II.
THE SECURITIES.
SECTION 2.01. FORM; TITLE AND TERMS.
The Securities and the Trustee's certificate of authentication thereon
shall be substantially in the forms set forth in Exhibit A hereto. The
Securities may have notations, legends or endorsements required by law or stock
exchange rules. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall constitute a
part of, and are hereby incorporated by reference in and made a part of, this
Indenture and to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to their incorporation
herein.
The Securities shall be known and designated as the "TMCC Demand Notes" of
the Company. The aggregate original principal amount of Securities that may be
authenticated and delivered under this Indenture is limited to
[$_________________], except as otherwise provided in Sections 2.06, 2.07 and
9.05. References herein and in the forms of Securities to
2
"Security" or "Securities" shall include references to the principal amounts
issued thereunder as evidenced by the appropriate notation on the Schedules.
The Securities shall be issuable only in registered form, without coupons.
The minimum denominations of the Securities will be $0.01.
Interest on the Securities which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date, shall, except as otherwise provided
in Section 2.12, be paid to the Persons in whose names the Securities (or one or
more Predecessor Securities) are registered at the close of business on the
Record Date next preceding such Interest Payment Date. At the option of the
Company, payment of interest on the Securities due on any Interest Payment Date,
falling after a Record Date for the payment of interest on the Securities and on
or before the related Interest Payment Date, shall be paid by wire transfer to
an account specified by the Person entitled thereto as proven by the names
appearing in the Securities register.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
The Securities shall be executed on behalf of the Company by an Officer of
the Company. Any such signature may be by facsimile.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
All of the Securities to be issued under this Indenture, and all of the
principal amounts to be evidenced by the Securities need not be issued at the
same time and may be issued from time to time at the order of the Company as
herein provided for. The Securities and the principal amount in respect of the
Securities to be issued hereunder shall all be of the same series known as the
"TMCC Demand Notes", but need not have the same issue date, Stated Maturity
Date, Required Rate, or Interest Payment Date. It is envisioned that eight
certificates representing potential investments related to the Securities shall
be issued hereunder and carry principal balances which will correspond to
amounts actually on deposit in the 1998-B SUBI Certificateholders' Account in
respect of the following amounts: (1) one certificate representing amounts
allocated as Class A-1 Certificate Balance Semi-Annual Accrual Amounts in a
maximum aggregate principal amount equal to [___________]; (2) one certificate
representing amounts allocated as Class A-2 Certificate Balance Semi-Annual
Accrual Amounts in a maximum aggregate principal amount equal to [____________];
(3) one certificate representing amounts allocated as Class A-3 certificate
Balance Semi-Annual Accrual Amounts in a maximum aggregate principal amount
equal to [___________]; (4) one certificate representing amounts allocated as
interest accrued on the Adjusted Class B Certificate Balance and Certificate
Principal Loss Amounts allocated thereto in a maximum aggregate principal amount
equal to [___________]; (5) one certificate representing amounts allocated to
make applications in reduction of the Adjusted Class A-1 Certificate Balance
Amount in a maximum aggregate principal amount equal to [______________]; (6)
one certificate representing amounts allocated to make applications in reduction
of the Adjusted Class A-2 Certificate Balance Amount in a maximum principal
amount equal to [____________]; (7) one certificate representing amounts
allocated to make applications in reduction of the Adjusted Class A-3
Certificate Balance Amount in a maximum principal amount equal to [___________];
and (8) one certificate
3
representing amounts allocated to make applications in reduction of the
Adjusted Class B Certificate Balance in a maximum principal amount equal to
[____________]; provided that nothing herein shall limit the number of
certificates representing the Securities that may be issued hereunder. Each
certificate representing a Security will have a Schedule attached thereto
indicating: (i) the amount of the increase in the principal amount
outstanding under such Security and the date on which each principal amount
under such Security was first issued, (ii) the Stated Maturity Date for such
principal amount, (iii) the Required Rate applicable to such principal
amount, (iv) the amount of the decrease in the principal amount outstanding
under such Security and the date on which such principal amount under such
Security was paid, (v) the amount of the interest paid on such Security and
the date on which such interest was paid, and (vi) the aggregate principal
amount outstanding with respect to such certificate representing a Security.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. Entries on the Schedule to any
such Security shall not be valid until the Trustee manually signs the space
provided for such entry as authentication of such increase or decrease in
outstanding principal amount of such Security. Such signature shall be
conclusive evidence that the Security and such entry has been authenticated
under this Indenture.
The Trustee shall authenticate Securities for original issue in any amount
not to exceed the maximum aggregate principal amount as aforesaid, upon a
written order of the Company signed by an Officer of the Company. The Trustee
shall annotate and initial the Schedule attached to a Security to indicate the
issuance of an additional principal amount of the Securities, upon either (i) a
written order of the Company signed by an Officer of the Company, or (ii) if an
Officer's Certificate has previously been delivered to the Trustee by the
Company specifying the names and titles of officers, employees or agents of the
Company eligible to give such an order, the order of any such officer, employee
or agent of the Company, which order may be by facsimile (promptly confirmed in
writing). Any such order shall specify the principal amount in respect of the
Securities to be issued and to which certificate such amount shall be allocable,
the applicable Required Rate, the Stated Maturity Date and the date on which
such issue of principal in respect of the Securities is to be authenticated.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities and the Schedules attached thereto. Unless otherwise
provided in the appointment, an authenticating agent may authenticate Securities
and the Schedules attached thereto whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company. The Trustee is
initially appointed as the authentication agent by the Company.
Notwithstanding the foregoing, in lieu of annotating the related Schedule
and initializing such entries, the Trustee may instead provide a written
confirmation to the Company of its receipt of and compliance with any Company
Order and of its receipt of each payment made by the Company in respect of any
principal amount of any Security or interest on any principal amount of any
Securities, which alternative written confirmations shall be deemed to be
conclusive evidence that the Trustee has received any such Company Order or
payment from the Company, in each case with the same force and effect as if the
Schedule had in fact been annotated and initialed as described above; provided
that the Company shall not be obligated to
4
make any payment at the Maturity of any Security unless and until the Trustee
delivers to the Company the related Schedule annotated with entries
corresponding to each such alternative confirmation and having each such
annotation authenticated as described above.
SECTION 2.03. SECURITIES REGISTER.
The Company shall keep or cause to be kept at the Corporate Trust Office or
at any office or agency of the Company where Securities may be presented for
registration of transfer or for exchange as provided in Section 4.02 a register
in which, subject to such reasonable regulations as the Company may prescribe,
the Company shall provide for the registration of Securities and registration of
transfers and exchanges of Securities as in this Article provided. The
Registrar appointed pursuant to Section 4.02 shall keep the register of the
Securities and of their transfer and exchange.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent appointed pursuant to Section 4.02 shall hold in trust
for the benefit of the Persons entitled thereto, without interest, all money
held by such Paying Agent for the payment of principal and interest on the
Securities (whether such money has been paid to it by the Company or any other
obligor on the Securities), and shall notify the Trustee in writing of any
Default by the Company (or any other obligor on the Securities) in making any
such payment. If the Company or a Subsidiary of the Company acts as Paying
Agent, it shall segregate the money and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed and the Trustee may at any time
during the continuance of any payment Default, upon written request to a Paying
Agent, require such Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed. Upon payment of all funds held by it to the
Trustee, the Paying Agent shall have no further liability for such money. As
provided in Section 6.04 hereof, in any bankruptcy, insolvency, reorganization
or other similar proceeding relative to the Company or any other obligor on the
Securities, the Trustee shall serve as Paying Agent for the Securities; provided
that the foregoing shall not relieve the Company of its obligations under
Section 4.02.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list of the names and addresses of the Holders
furnished to it or maintained by it in its capacity as Registrar. If and so
long as the Trustee is not the Registrar, in accordance with Section 312(a) of
the TIA, the Company shall furnish or cause to be furnished to the Trustee
semiannually not less than 30 days nor more than 60 days before each Interest
Payment Date and at such times as the Trustee may request in writing a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Holders including an identification of the Securities and the
aggregate amount thereof.
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) The Trustee will not authenticate or deliver any Security in
connection with any registration of transfer to any person unless the Trustee
has received a certification from the
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transferring Holder to the effect that (i) it is no longer the Securitization
Trustee of the 1998-B Securitization Trust and the proposed transferee is its
successor in such capacity, or (ii) a Liquidation Event has occurred and such
proposed transfer is made in contemplation of a liquidation of the trust
assets. Each certificate shall bear a legend containing the foregoing
transfer restrictions.
(b) When Securities are presented to the Registrar or a co-Registrar with
a written request satisfying the requirements of clause (a) to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities in other authorized denominations, the Registrar
or co-Registrar shall register the transfer or make the exchange if its
reasonable requirements for such transactions (which may include a requirement
that any Security presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar and the Trustee duly executed by
the Holder thereof or his attorney duly authorized in writing) are met. To
permit registration of transfers and exchanges as provided herein, the Company
shall execute and the Trustee shall authenticate and deliver Securities at the
Registrar's or a co-Registrar's written request. All Securities issued upon any
registration of transfer or exchange of Securities shall be the valid
obligations of the Company evidencing the same debt and entitling the Holders
thereof to the same benefits under this Indenture as the Securities surrendered
upon such registration of transfer or exchange. No service charge shall be made
to a Holder for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith, other than in the case of
exchanges under Section 9.05 hereof not involving any transfer.
SECTION 2.07. REPLACEMENT SECURITIES.
If a defaced or mutilated Security is surrendered to the Trustee or if the
Holder of a Security presents evidence to the reasonable satisfaction of the
Trustee that the Security has been lost, destroyed or stolen the Company shall
execute and the Trustee shall authenticate a replacement Security if the
Company's and the Trustee's reasonable requirements are met. The Trustee or the
Company may require an indemnity bond or other security, sufficient in the
reasonable judgment of both the Company and the Trustee, to protect the Company,
the Trustee or any Agent from any loss which any of them may suffer if a
Security is replaced. The Company and the Trustee may charge such Holder for
their reasonable expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company,
whether or not the apparently destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and such replacement Security shall be entitled to
the benefits of and subject to the limitations of rights set forth in this
Indenture.
The provisions of this Section, as amended or supplemented pursuant to this
Indenture with respect to particular Securities or generally, shall be exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
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SECTION 2.08. OUTSTANDING SECURITIES.
Securities outstanding at any time under this Indenture are all
Securities that have been theretofore authenticated and delivered under this
Indenture, except (a) those canceled by the Trustee, (b) those delivered to
the Trustee for cancellation, (c) those in exchange for or in lieu of which
other Securities have been authenticated and delivered under this Indenture
and (d) those described in this Section as not outstanding.
Except as provided in Section 2.09 hereof, a Security does not cease to
be outstanding because the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor holds the Security.
If a Security is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If on the Stated Maturity of the Securities, the Paying Agent (other
than the Company or a Subsidiary) holds U.S. Legal Tender sufficient to pay
all of the principal and interest due on the Securities payable on that date,
then on and after that date such Securities shall cease to be outstanding and
interest on them shall cease to accrue.
SECTION 2.09. SECURITIES NOT OUTSTANDING.
In determining whether the Holders of the required principal amount of
outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether a quorum is present
at a meeting of Holders of Securities, Securities owned by the Company or any
other obligor on the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver
or upon any such determination as to the presence of a quorum, only
Securities which a Trust Officer actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may
be regarded as outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities
or an Affiliate of the Company or of such other obligor. The Trustee may
require an Officer's Certificate listing Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
SECTION 2.10. [RESERVED].
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, each co-Registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for transfer, exchange
or payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation.
Subject to Section 2.07 hereof, the Company may not execute new Securities to
replace Securities it has
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paid or delivered to the Trustee for cancellation. All canceled Securities
held by the Trustee shall be destroyed and certification of their destruction
delivered to the Company.
SECTION 2.12. DEFAULTED INTEREST.
If the Company fails to pay any principal of or interest on any Security
on the due date therefor (whether upon acceleration, at the related Stated
Maturity Date or otherwise), the Company shall pay, from and after the
expiration of any cure period, interest thereon, at the rate per annum borne
by the Securities, to the extent permitted by law. Any interest on any
Security which shall be payable, but shall not be punctually paid or duly
provided for, on any Interest Payment Date for such Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder
thereof on the relevant Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Security (or a Predecessor Security
thereof) shall be registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on such Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of U.S. Legal Tender equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such U.S. Legal Tender when so deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon, the Trustee shall fix a
"Special Record Date" for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class,
postage prepaid, to each Holder of Securities at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Person in whose name such Security (or a
Predecessor Security thereof) shall be registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after written notice given by
the Company to the Trustee of the proposed payment method pursuant to this
clause, such payment method shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer or in exchange for
or in lieu of any other Security shall
8
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any Agent may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payments of principal of and, subject to Section 2.12, interest on
such Security and for all other purposes whatsoever (whether or not such
Security is overdue), and neither the Company nor the Trustee or any other
Agent shall be affected by notice to the contrary.
SECTION 2.14. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE III.
REDEMPTION
SECTION 3.01. REDEMPTION.
The Securities may not be redeemed at the option of the Company, in
whole or in part at any time prior to their respective Stated Maturities.
ARTICLE IV.
COVENANTS.
SECTION 4.01. PAYMENT OF SECURITIES.
The Company will punctually pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and this
Indenture.
The Company will, on or prior to the day when any principal of or
interest on any of the Securities becomes payable, whether at the Stated
Maturity Date thereof, by demand for payment by any Holder of a Security (i)
if for any reason Standard & Poor's reduces the Company's short-term debt to
a rating less than A-1+ or ▇▇▇▇▇'▇ reduces the Company's short term debt to a
rating less than P-1 or the Company's long term debt to a rating less than
Aa3 and the Trustee determines, based on advice of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, BT Alex. Brown or its independent public accountants, that at
such time one or more Permitted Investments having substantially the same
maturities, similar demand features and bearing interest at the relevant
Required Rates are available and, based on oral or written advice to such
effect from each Rating Agency, that investment therein rather than in the
Company's Demand Notes will not, by itself, cause a Rating Agency to reduce
or withdraw its rating of any Class of Certificates or (ii) in connection
with any Liquidation Event, in the form of Exhibit B hereto delivered to the
Trustee, surrender for repurchase, declaration of acceleration or otherwise,
deposit with the Paying Agent
9
(or, if the Company or a Subsidiary of the Company is acting as Paying Agent,
segregate and hold in trust), in immediately available funds, no later than
12:00 noon (New York City time), a sum in U.S. Legal Tender sufficient to pay
the principal and interest becoming due. Such sum shall be held in trust for
the benefit of the Holders entitled to such payment and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee in
writing of its action or failure so to act, and of the amount of each such
payment made to each Paying Agent.
On the second Business Day preceding each Monthly Allocation Date on
which Securities are to be issued or additional amounts are to be invested in
outstanding Securities, the Trustee will calculate the Commercial Paper Rate
for the relevant Interest Period for each Security in which an investment is
to be made, and shall inform the Company promptly in writing of each such
Commercial Paper Rate.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY; PAYING AGENT AND
REGISTRAR.
The Company will maintain in New York, New York, an office or agency
where Securities may be presented or surrendered for payment ("Paying
Agent"), where Securities may be surrendered for registration of transfer or
exchange ("Registrar") and where notices and demands to or upon the Company
in respect of payments on the Securities or under this Indenture may be
served. Unless otherwise expressly provided herein, the Trustee, the Company
or a Subsidiary of the Company may act as Registrar, co-Registrar or Paying
Agent. The Company shall give prompt written notice to the Trustee and the
Holders of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company initially appoints the Trustee, as the initial Registrar and
Paying Agent in New York, New York and designates, for the purposes of this
Section 4.02, such agent as an agency where notices and demands to or upon
the Company in respect of payments on the Securities or under this Indenture
may be served. The parties hereto agree such agency is not an agency for
service of process.
SECTION 4.03. COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement (which need not be contained in or
accompanied by an Officer's Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer
of the Company, stating that
(a) a review of the activities of the Company during such year and of
its performance under this Indenture has been made under his or her
supervision, and
(b) to the best of his or her knowledge, based on such review, (i) the
Company has complied with all the conditions and covenants imposed on it under
this Indenture throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each such default
known to him or her and the nature and status thereof, and (ii) no
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event has occurred and is continuing which is, or after notice or lapse of
time or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him and the
nature and status thereof.
(c) The Company shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any event which after notice or
lapse of time or both would become an Event of Default pursuant to clause (c)
of Section 6.01.
SECTION 4.04. PERIODIC REPORTS.
The Company shall:
(1) file with the Trustee copies of annual reports and
copies of the information, documents, and other reports which the Company is
required to file pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or if the Company is not required to file information,
documents, and reports pursuant to either of those sections, then the Company
shall file with the Trustee and the Commission such of the supplementary and
periodic information, documents, and reports which may be required pursuant
to Section 13 of the Securities Exchange Act of 1934;
(2) file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed by the Commission, such additional
information, documents, and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture; and
(3) transmit to the holders of the Securities such
summaries of any information, documents, and reports required to be filed by
the Company pursuant to paragraphs (1) and (2) of this subsection as may be
required by rules and regulations prescribed by the Commission.
ARTICLE V.
CONSOLIDATIONS AND MERGERS, ETC.
SECTION 5.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person or Persons (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any conveyance, transfer or
lease of the property of the Company as an entirety or substantially as an
entirety, to any other Person (whether or not affiliated with the Company);
provided, however, that:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Company shall be the
surviving entity or the entity formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a
11
Corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall expressly
assume, by an indenture (or indentures, if at such time there is more than
one Trustee) supplemental hereto, executed by the successor Person and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and interest on all the Securities and
the performance of every other covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
event which, after notice or lapse of time, would become an Event of Default,
shall have occurred and be continuing;
(3) either the Company or the successor Person shall have
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
stating that such consolidation, merger, conveyance, transfer or lease and
such supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
SECTION 5.02. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY.
Upon any consolidation or merger or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 5.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein; and thereafter, except in the case of a lease to another
Person, the predecessor Person shall be released from all obligations and
covenants under this Indenture and the Securities.
ARTICLE VI.
DEFAULT AND REMEDIES.
SECTION 6.01. EVENTS OF DEFAULT.
The occurrence of any one of the following events for any reason
whatsoever, and whether voluntary, involuntary or by operation of law, shall
constitute an "Event of Default":
(a) default in the payment of any interest on any Security when such
interest becomes due and payable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of the principal of any Security of such
series when it becomes due and payable at its Maturity, and continuance of
such default for a period of 10 days; or
(c) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture or the Securities, and continuance of such default
or breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount
12
of the Outstanding Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(d) any Insolvency Event of the Company.
SECTION 6.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities occurs and is
continuing, then the Trustee or the Holders of not less than 25% in principal
amount of the outstanding Securities may declare the principal of all the
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of not less than a majority in principal amount of the
outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
of money sufficient to pay:
(A) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
(B) all due and overdue installments of interest on all
Securities;
(C) the principal of any Securities which have become
due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by or provided for in such Securities; and
(D) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the rate
borne by or provided for in such Securities; and
(2) all Events of Default with respect to Securities, other
than the non-payment of the principal of, and interest on Securities which
shall have become due solely by such declaration of acceleration, shall have
been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 6.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
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(1) default is made in the payment of any installment of
interest on any Security when such interest shall have become due and payable
and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of any
Security at its Maturity, and such default continues for a period of 10 days
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount of money then due
and payable with respect to such Securities with interest upon the overdue
principal, and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest at the rate borne by
or provided for in such Securities, and, in addition thereto, such further
amount of money as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the money so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon such
Securities and collect the money adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities wherever situated.
If an Event of Default with respect to Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or such Securities or in aid of the exercise
of any power granted herein or therein, or to enforce any other proper remedy.
SECTION 6.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of any overdue principal
and/or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities, of the principal
and interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its
14
agents or counsel) and of the Holders of Securities allowed in such
judicial proceeding, and
(ii) to collect and receive any money or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder of Securities to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly
to the Holders of Securities, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee
relating to this Indenture.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security in
any such proceeding.
SECTION 6.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or any of the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security in respect of which such judgment has been recovered.
SECTION 6.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee relating to this Indenture;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal and interest in respect of which or for the benefit
of which such money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due and payable on
such Securities and Coupons for principal and interest, respectively;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
15
SECTION 6.07. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to it against the costs, expenses and liabilities
(including counsel's fees, expenses and disbursements) to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities; it being
understood and intended that no one or more of such Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights
of any other such Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 6.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on such Security, as the
case may be, on the respective Stated Maturity Date or other Maturity
therefor specified in such Security (subject in each case to the respective
cure periods set forth in Section 6.01) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
SECTION 6.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case the
Company, the Trustee and each such Holder shall, subject to any determination
in such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee
and each such Holder shall continue as though no such proceeding had been
instituted.
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SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 2.07, no right or remedy herein conferred upon or reserved to the
Trustee or to each and every Holder of a Security is intended to be exclusive
of any other right or remedy, and every right and remedy, to the extent
permitted by law, shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 6.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to any Holder of a Security may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
such ▇▇▇▇▇▇, as the case may be.
SECTION 6.12. CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct in writing the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series provided that:
(1) such direction shall not be in conflict with any law or
regulation, with this Indenture or with the Securities of such series;
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction;
(3) such direction is not unduly prejudicial to the rights of
the other Holders of Securities of such series not joining in such action; and
(4) such direction shall not, in the good faith determination
of any Trust Officer of the Trustee, subject the Trustee to personal
liability unless such Holders have provided indemnity to the Trustee
satisfactory to it.
SECTION 6.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities on behalf of the Holders of all the Securities may
waive any past default hereunder with respect to such series and its
consequences, except a default:
(1) in the payment of the principal of or interest on any
Security which has not been cured as provided in Section 6.02; or
17
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 6.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant.
ARTICLE VII.
TRUSTEE.
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or obligations
shall be implied in this Indenture which are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture, but need not
verify the accuracy of the contents thereof.
18
(c) Neither the Trustee nor any of its officers, directors or employees
shall be liable for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.12 hereof.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties or obligations hereunder or in the exercise
of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(e) Whether or not expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders, unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it, against the costs,
expenses and liability (including counsel's fees, expenses and disbursements)
which might be incurred by the Trustee in compliance with such request or
direction.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to the provisions of Section 7.01 hereof:
(a) The Trustee may conclusively rely and be fully protected in acting
or refraining from acting on any document, resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order or
approval believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Whenever in the administration of its duties and obligations
pursuant to this Indenture, before the Trustee acts or refrains from acting,
it may require an Officer's Certificate and an Opinion of Counsel, which
shall conform to Section 11.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or
19
opinion. The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys, agents, custodians and
nominees and shall not be responsible for the misconduct or negligence of any
attorney, agent, custodian or nominee appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) In the event that the Trustee is also acting as Paying Agent,
authenticating agent or Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article VII shall also be afforded
to such Paying Agent, authenticating agent or Registrar.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or its
Subsidiaries or Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee
must comply with Sections 7.10 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities or any money paid to the Company or upon the
Company's written direction under any provision hereof, and the Trustee shall
not be accountable for the Company's use of the proceeds from the Securities,
and the Trustee shall not be responsible for any statement in the Securities
other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs and is continuing and it is
actually known to a Trust Officer of the Trustee, the Trustee shall mail to
each Holder notice of the Default or Event of Default within 90 days after it
occurs; provided that, except in the case of a Default or an Event of Default
in payment of principal of or interest on any Security, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interest of the
Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder, and
each other Person so entitled under TIA (Section )313(c), a brief report
dated as of such May 15 that shall comply with TIA (Section )313(a). The
Trustee need not send such report if such report is not required by TIA
(Section )313(a). The Trustee also shall comply with TIA (Section )313(b)(2).
20
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the Commission and each stock
exchange, if any, on which the Securities are listed.
The Company shall notify the Trustee if the Securities become listed on
any stock exchange prior to such listing.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust.
The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss, liability or expense incurred by it and its officers,
directors and employees including, without limitation, the cost and expense
of enforcement of this Indenture against the Company and of defending itself
against any claim (whether asserted by any Holder or the Company or
otherwise) unless the Trustee or its officers, directors and employees acted
with negligence, willful misconduct or bad faith on its part, arising out of
or in connection with the administration of this trust or any trust created
under Section 8.01 or 8.02 and its duties hereunder. The Trustee shall
notify the Company, as soon as is reasonably practicable, of any claim
asserted against the Trustee for which it may seek indemnity; provided,
however that the Trustee's failure to provide such notice shall not
constitute a waiver of its rights under this Section 7.07. The Company need
not reimburse any expense or indemnify against any loss or liability incurred
by the Trustee through negligence, willful misconduct or bad faith.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or Property
held or collected by the Trustee, in its capacity as Trustee, except money or
Property held in trust to pay principal of or interest on particular
Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(d) hereof, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any federal or state bankruptcy, insolvency,
reorganization or similar law.
The provisions of this Section 7.07 shall survive the termination of
this Indenture or the earlier resignation or termination of the Trustee.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing and
mailing notice of such resignation to the Holders. The Holders of at least a
majority in principal amount of the
21
outstanding Securities may remove the Trustee by so notifying the Company and
the Trustee in writing and may appoint a successor Trustee. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged, by a court of competent
jurisdiction, a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its Property; or
(4) the Trustee becomes legally or otherwise incapable of
acting under and in accordance with the provisions of this Indenture.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee, unless the Holders have appointed a successor Trustee in
accordance with the previous paragraph. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the
Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance
of appointment as provided in this Section 7.08 and payment to the prior
Trustee of all sums due under Section 7.07 hereof.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all Property held by it as Trustee
to the successor Trustee, subject to the lien provided in Section 7.07
hereof, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder. The predecessor Trustee shall not
be liable for any acts or omissions of any successor Trustee and the
successor Trustee shall not be liable for any acts or omissions of any
predecessor Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 above shall continue for
the benefit of the retiring or removed Trustee.
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SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (Section )310(a)(1). The Trustee shall have a combined
capital and surplus of at least $25,000,000 as set forth in its most recent
published annual report of condition. Neither the Company nor any Person
directly or indirectly controlling, controlled by, or under common control
with the Company shall serve as Trustee. The Trustee shall comply with TIA
(Section )310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA(Section )311(a), excluding any
creditor relationship listed in TIA(Section )311(b). A Trustee who has
resigned or been removed shall be subject to TIA (Section )311(a) to the
extent indicated.
ARTICLE VIII.
DEFEASANCE; SATISFACTION AND DISCHARGE.
SECTION 8.01. DEFEASANCE OF THE INDENTURE.
The Company shall be deemed to have satisfied and terminated all of its
obligations under this Indenture (subject to Section 8.03 hereof) if:
(1) the Company irrevocably shall have deposited in trust
with the Trustee, pursuant to an irrevocable trust agreement in form
reasonably satisfactory to the Trustee, as trust funds in trust solely for
the benefit of the Holders for that purpose, U.S. Legal Tender, in such
amounts as are sufficient, without consideration of the investment of any
such U.S. Legal Tender and after payment of all federal, state and local
taxes or other charges or assessments in respect thereof payable by the
Trustee, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to, and in
form reasonably satisfactory to, the Trustee, to pay the principal of and
interest on the outstanding Securities on the dates on which such payments
are due and payable in accordance with the terms of this Indenture and of the
Securities, provided that the Trustee shall have been irrevocably instructed
in writing to apply such U.S. Legal Tender to the payment of said principal
and interest on the Securities;
(2) no Default or Event of Default shall have occurred or be
continuing on the date of such deposit or shall occur on or before the 366th
day after the date of such deposit;
23
(3) such deposit shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other instrument or
agreement to which the Company is a party or by which it or its Property is
bound;
(4) the Company shall have delivered to the Trustee an
Opinion of Counsel in form satisfactory to the Trustee to the effect that
Holders of the Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and the defeasance
contemplated hereby and will be subject to Federal income tax in the same
amounts and in the same manner and at the same time as would have been the
case if such deposit and defeasance had not occurred and that the deposit is
not subject to the control of any bankruptcy court;
(5) Such defeasance shall not cause the Securities, if then
listed on any national securities exchange registered under the Exchange Act,
to be delisted;
(6) Such deposit shall not result in the Company, the Trustee
or the irrevocable trust becoming or being deemed an "investment company"
under the Investment Company Act of 1940, as amended; and
(7) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent specified herein relating to the defeasance contemplated
by this Section 8.01 have been complied with.
In the event all or any portion of the Securities are to be redeemed
through such irrevocable trust, the Company shall make arrangements
satisfactory to the Trustee, at the time of such deposit, for the giving of
notice of such redemption or redemptions by the Trustee in the name and at
the expense of the Company.
SECTION 8.02. SATISFACTION AND DISCHARGE OF THE INDENTURE.
In addition to its rights under Section 8.01 above, the Company may
terminate all of its obligations under this Indenture (subject to Section
8.03 hereof) if:
(1) either
(A) all Securities theretofore authenticated and
delivered (other than Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
2.07 hereof) have been delivered to the Trustee for cancellation; or
(B) all Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year;
24
and the Company, in the case of (i) or (ii) above, has
irrevocably deposited in trust with the Trustee, pursuant to an
irrevocable trust agreement in form reasonably satisfactory to the
Trustee, as trust funds in trust solely for the benefit of the
Holders for that purpose, an amount of U.S. Legal Tender
sufficient, without consideration of the investment thereof and
after payment of all federal, state and local taxes or other
charges or assessments in respect thereof payable by the Trustee,
to pay the principal of and interest on the outstanding Securities
on the dates on which such payments are due and payable in
accordance with the terms of this Indenture and of the Securities,
provided that the Trustee shall have been irrevocably instructed in
writing to apply such U.S. Legal Tender to the payment of said
principal and interest on the Securities;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the satisfaction and discharge of this
Indenture pursuant to this Section 8.02 have been complied with.
SECTION 8.03. SURVIVAL OF CERTAIN OBLIGATIONS.
Notwithstanding the defeasance of this Indenture or the satisfaction and
discharge of this Indenture referred to in Section 8.01 and Section 8.02
above, respectively, the respective obligations of the Company and the
Trustee under Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.11,
2.13, 2.14, Sections 4.01, 4.02, 4.03, 6.08, 7.07, 7.08, 7.09, 7.10, 8.03,
8.04, 8.05, 8.06 and 8.07, Article IX, and Sections 11.02, 11.06, 11.07,
11.08, 11.10, 11.11 and 11.13 hereof shall survive until the Securities are
no longer outstanding. Thereafter the obligations of the Company and the
Trustee under Sections 7.07, 8.05, 8.06 and 8.07 hereof shall survive.
SECTION 8.04. ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.
Subject to Section 8.07 below and after the Company has delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent referred to in Section 8.01 or Section 8.02, as the
case may be, relating to the defeasance or satisfaction and discharge of this
Indenture have been complied with, the Trustee upon written request of the
Company shall acknowledge in writing the defeasance or the satisfaction and
discharge, as the case may be, of this Indenture and the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified in Section 8.03 above. The Company shall reimburse the
Trustee for reasonable costs and expenses incurred by it in the performance
of its duties and obligations under this Section 8.04.
SECTION 8.05. APPLICATION OF TRUST MONEY.
The Trustee shall hold any U.S. Legal Tender deposited with it in the
irrevocable trust established pursuant to Section 8.01 or 8.02, as the case
may be. The Trustee shall apply the deposited U.S. Legal Tender through the
Paying Agent (other than the Company or a Subsidiary
25
or Affiliate of the Company), in accordance with this Indenture and the terms
of the irrevocable trust agreement, to the payment of principal of and
interest on the Securities as and when the same become due and payable. The
U.S. Legal Tender so held in trust shall not be part of the trust estate
under this Indenture, but shall constitute a separate trust fund for the
benefit of all Holders entitled thereto.
SECTION 8.06. REPAYMENT TO THE COMPANY.
The Trustee and the Paying Agent shall pay to the Company upon written
request, and, if applicable, in accordance with the irrevocable trust
established pursuant to Section 8.01 or 8.02 above, any U.S. Legal Tender
held by them for the payment of principal of or interest on the Securities
that remains unclaimed for two years after the date on which such payment
shall have become due (whether on or before the related Stated Maturity
Date); provided, however, that, before being required to make any such
payment to the Company, the Trustee may, at the expense of the Company, cause
to be mailed to the Holders of such Securities, at their last addresses as
they appear on the Securities register, notice that such moneys remain
unclaimed and that, after a date specified in said notice, the balance of
such moneys then unclaimed will be returned to the Company. After payment to
the Company as aforesaid, Holders entitled to such moneys must look to the
Company for such payment unless an applicable abandoned property law
designates another Person.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender
in accordance with Section 8.01 or 8.02 hereof by reason of any legal
proceeding or by reason of any order or judgment of any court or Governmental
Authority enjoining, restraining or otherwise prohibiting such application,
the Company's obligations under this Indenture shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 or
8.02, as the case may be until such time as the Trustee or Paying Agent is
permitted to apply all such funds in accordance with Section 8.01 or 8.02, as
the case may be, and 8.05; provided, however, that if the Company has made
any payment of principal of or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
U.S. Legal Tender held by the Trustee.
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS.
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee, together, may amend or supplement this
Indenture or the Securities without notice to or consent of any Holder (i) to
cure any ambiguity, defect or inconsistency, or to make any other provisions
with respect to matters or questions arising under this Indenture, provided that
any such action does not, in the good faith judgment of the Company, materially
and adversely affect the rights or interests of any Holder of Securities or
(ii) add to the covenants and agreements of the Company such further covenants
and agreements as the Board of Directors of the Company shall consider to be for
the protection or benefit of the
26
Holders (including to add any Events of Default). In addition to the
requirements set forth in Section 9.06 herein, the Trustee may require
delivery of an Opinion of Counsel to the effect that such amendment will not
materially and adversely affect the interest of any Certificateholder in
connection with any such amendment or supplement, and the Trustee shall be
fully protected in relying upon such Opinion of Counsel.
In addition, this Indenture may be amended or supplemented by the
Trustee and the Company without the consent of any Holder or of any
Certificate Owner with respect to the Investor Certificates issued pursuant
to the 1998-B Securitization Trust Agreement or of the Trustee of the 1998-B
Securitization Trust to (i) reflect changes necessary or appropriate in
connection with any event described under Section 5.01, Section 7.08 or
Section 7.09 or (ii) to surrender any right or power reserved to or conferred
upon the Company.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.08 and the next succeeding paragraph, the Company,
when authorized by a resolution of its Board of Directors, and the Trustee
with the written consent of the Holders of at least a majority in aggregate
principal amount of the outstanding Securities (which consent will not be
given except at the written direction of Investor Certificateholders of at
least 25% in aggregate principal amount of the Class A Certificates) may
amend or supplement this Indenture or the Securities for the purpose of
adding any provisions to or changing in any manner, or eliminating any other
provisions of this Indenture or modifying in any manner the rights with
respect to the Securities. Subject to Section 6.08 and the next succeeding
paragraph, the Holders of at least a majority in aggregate principal amount
of the outstanding Securities may waive compliance by the Company with any
provision of or obligation under this Indenture or the Securities without
notice to any other Holders.
Notwithstanding anything to the contrary in the foregoing provisions of
this Section 9.02, without the consent of each Holder and Investor
Certificateholder affected, no amendment, supplement or waiver, including a
waiver pursuant to Section 6.02, may:
(1) reduce the percentage in principal amount of the
outstanding Securities the consent of whose Holders is required for any
amendment or supplement to this Indenture, for any waiver (of compliance with
any obligation or provision of this Indenture or of certain Defaults or
Events of Default hereunder or their consequences) provided for in this
Indenture, or for a rescission of acceleration of the Securities pursuant to
Section 6.02, or reduce the requirements pursuant to Section 10.05 for a
quorum or voting;
(2) reduce the rate or change the time for payment of
interest on any Security;
(3) reduce the principal amount of any Security;
(4) alter the repurchase provisions of any Security in a
manner adverse to any Holder thereof, or change the Stated Maturity of any
Security;
27
(5) waive any default in the payment of the principal of or
interest on any Security which has not been cured as provided in Section 6.02;
(6) impair the right of Holders to institute suit for the
enforcement of any payment of the principal of or interest on the Securities
on or after the respective due dates therefor;
(7) make any changes in Section 6.02, 6.08 or this second
paragraph of Section 9.02;
(8) change any obligation of the Company to maintain an
office or agency in the place and for the purpose specified in Section 4.02
or make the Securities payable in any coin or currency other than U.S. Legal
Tender;
(9) make any change to or modify the priority between the
Holders of the Securities and any other creditors of the Company;
(10) provide for uncertificated Securities in addition to
certificated Securities; or
(11) secure all of the Securities.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
SECTION 9.03. [RESERVED].
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any such Security. However, any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of a Security if the Trustee
receives written notice of revocation before the date on which the Trustee
receives an Officer's Certificate certifying that the Holders of the
requisite principal amount of Securities have consented to the amendment,
supplement or waiver. Such amendment, waiver or supplement, as the case may
be, shall be effective upon receipt by the Trustee of such Officer's
Certificate.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record
28
date is fixed, then notwithstanding the last two sentences of the immediately
preceding paragraph, those Persons who were Holders at the close of business
on such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date. No such
consent shall be valid or effective for more than 90 days after such record
date.
All Holders that consent to such modification, waiver or action in the
manner and within the time period requested shall be entitled to receive the
consideration, if any, offered for such consent.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company
or the Trustee has so determined, the Company in exchange for the Security
may execute and the Trustee shall authenticate a new Security of like kind
that reflects the changed terms.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Officer's Certificate and an Opinion of Counsel stating
that the execution of any amendment, supplement or waiver authorized pursuant
to this Article IX is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise. In signing or refusing to sign such amendment
or supplement, the Trustee shall be entitled to receive and, subject to
Section 7.01 hereof, shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that such
amendment or supplement is authorized or permitted by this Indenture, that it
is not inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms. The Company shall not sign an
amendment or supplement until its Board of Directors approves thereof.
SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplement or amendment to this Indenture in
accordance with this Article, this Indenture shall be modified in accordance
therewith and such supplement or amendment shall form a part of the Indenture
for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered shall be bound thereby. Any Holder and every
subsequent Holder of a Security (or portion thereof) shall be bound by any
waivers authorized or obtained by this Article.
29
ARTICLE X.
MEETINGS OF AND ACTIONS BY HOLDERS.
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders may be called at any time and from time to time
pursuant to the provisions of this Article X for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to waive or to consent to the waiving of any
Default or Event of Default hereunder and its consequences, or to take any
other action authorized to be taken by Holders pursuant to any of the
provisions of Article VI;
(b) to remove the Trustee or appoint a successor Trustee pursuant to
the provisions of Article VII;
(c) to consent to an amendment, supplement or waiver pursuant to the
provisions of Section 9.02; or
(d) to take any other action (i) authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the Securities
under any other provision of this Indenture, or authorized or permitted by
law or (ii) which the Trustee deems necessary or appropriate in connection
with the administration of this Indenture.
SECTION 10.02. MANNER OF CALLING MEETINGS.
The Trustee may at any time call a meeting of Holders to take any action
specified in Section 10.01 hereof, to be held at such time and at such place
in New York, New York or elsewhere as the Trustee shall determine. Notice of
every meeting of Holders, setting forth the time and place of such meeting
and in general terms the action proposed to be taken at such meeting, shall
be mailed by the Trustee, first-class postage prepaid, to the Company, and to
the Holders of the Securities at their last addresses as they shall appear on
the registration books of the Registrar, not less than 10 nor more than 60
days prior to the date fixed for a meeting.
Any meeting of Holders shall be valid without notice if the Holders of
all Securities then outstanding are present in Person or by proxy, or if
notice is waived before or after the meeting by the Holders of all Securities
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived
notice.
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Certified Resolution of
its Board of Directors delivered to the Trustee, or the Holders of not less
than 10% in aggregate principal amount of the Securities then outstanding,
shall have requested the Trustee to call a meeting of Holders to take any
action specified in Section 10.01 hereof, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or the Holders of Securities in the
amount above specified may determine the time and place in
30
New York City or elsewhere for such meeting and may call such meeting for the
purpose of taking such action, by notice given as provided in Section 10.02.
SECTION 10.04. WHO MAY ATTEND AND VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders, a Person shall (a) be
a registered Holder of one or more Securities, or (b) be a Person appointed
by an instrument in writing as proxy for the registered Holder or Holders of
Securities. The only Persons who shall be entitled to be present or to speak
at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS; ADJOURNMENT.
Notwithstanding any other provision of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, and submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think appropriate. Such regulations
may fix a record date and time for determining the Holders of record of
Securities entitled to vote at such meeting, in which case those and only
those Persons who are Holders of Securities at the record date and time so
fixed, or their proxies, shall be entitled to vote at such meeting whether or
not they shall be such Holders at the time of the meeting.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 10.03, in which case the Company
or the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by vote of the Holders of a majority in
principal amount of the Securities represented at the meeting and entitled to
vote.
At any meeting each Holder or proxy shall be entitled to vote with
respect to the outstanding Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Securities challenged as not outstanding and ruled by the chairman of the
meeting to be not outstanding. The chairman of the meeting shall not have
the right to vote other than by virtue of Securities held by him or
instruments in writing as aforesaid duly designating him as the proxy to vote
on behalf of other Holders. At any meeting of Holders, the presence of
Persons holding or representing a majority of the principal amount of the
outstanding Securities shall be sufficient for a quorum. Any meeting of
Holders duly called pursuant to the provisions of Sections 10.02 or 10.03 may
be adjourned from time to time by vote of the Holders of a majority in
aggregate principal amount of the Securities represented at the meeting and
entitled to vote, and the meeting may be held as so adjourned without further
notice.
31
Except as limited by Sections 6.02 and 6.08 and the second paragraph of
Section 9.02, any resolution presented to a meeting at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
a majority in principal amount of the outstanding Securities.
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the principal
amount of the Securities voted by the ballot. The permanent chairman of the
meeting shall appoint two inspectors of votes, who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of
all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
Persons having knowledge of the facts, setting forth a copy of the notice of
the meeting and showing that such notice was mailed as provided in Section
10.02 or Section 10.03. The record shall be signed and verified by the
affidavits of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR HOLDERS MAY NOT BE
HINDERED OR DELAYED BY CALL OF MEETING.
Nothing contained in this Article X shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Securities.
SECTION 10.08. EVIDENCE OF ACTION TAKEN BY HOLDERS.
(a) In addition to the foregoing provisions of this Article X, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing,
or by combination of such instrument or instruments and the record of a
meeting of Holders duly called and held in accordance with this Article X.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Section 7.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Article.
32
(b) Any request, demand, authorization, direction, notice, consent,
waiver or other action of the Holder of any Security in accordance with this
Section 10.08 shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(c) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action in
accordance with this Section 10.08, the Company may, at its option, by or
pursuant to an Officer's Certificate delivered to the Trustee, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or such other act,
but the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
waiver or other act may be given before or after such record date, but only
those Persons who were Holders of record at the close of business on such
record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite percentage of outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other act, and for that purpose the
outstanding Securities shall be computed as of such record date; provided,
that no such authorization, agreement or consent by the Holders on the record
date shall be deemed effective unless such request, demand, authorization,
direction, notice, consent, waiver or other act shall become effective
pursuant to the provisions of paragraph (a) of this Section 10.08 not later
than 90 days after the record date.
SECTION 10.09. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES.
The execution of any instrument by a Holder or his agent or proxy may be
proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee, and the holding of Securities shall be proved by the Security
register or by a certificate of the Registrar.
SECTION 10.10. RIGHT OF REVOCATION OF ACTION TAKEN.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 10.08, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any Holder of a Security the serial
number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Security. After such time, such action shall be conclusive and binding
upon such Holder and the Securities issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is
made upon any such Security.
33
ARTICLE XI.
MISCELLANEOUS.
SECTION 11.01. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by
the TIA, the required provision shall control.
SECTION 11.02. NOTICES.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand
delivery, by telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
if to the Company:
Toyota Motor Credit Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasury Department
if to the Trustee:
[_____________]
Attention: Corporate Trust & Agency Group--
Structured Finance Group (TMCC Demand Notes)
The Company or the Trustee by written notice to the other may designate
additional or different addresses as shall be furnished in writing by either
party. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when receipt is acknowledged, if telecopied; and five days after
mailing if sent by registered or certified mail (except that a notice of
change of address shall not be deemed to have been given until actually
received by the addressee).
Any notice or communication mailed to a Holder shall be mailed to him by
first class mail, postage prepaid, at his address as it appears on the
register of the Registrar and shall be sufficiently given to such Holder if
so mailed within the time prescribed. If the Company mails a notice or
communication to Holders, it shall simultaneously mail a copy to the Trustee.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
34
SECTION 11.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officer's Certificate (which shall include the
statements set forth in Section 11.05 hereof) stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with (and, if applicable,
setting forth in reasonable detail any financial calculations providing the
basis of such opinion);
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with; and
(3) in the case of conditions precedent compliance with which
is subject to verification by accountants, the Company shall comply with
Section 314(c)(3) of the Trust Indenture Act of 1939 ("TIA").
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officer's Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may rely
on an Officer's Certificate or certificates of public officials.
At the request of the Trustee, any Officer's Certificate or Opinion of
Counsel shall address any particular condition precedent to such action.
35
SECTION 11.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 11.07. LEGAL HOLIDAYS.
If a payment date is not a Business Day at a particular place where the
principal of or interest on the Securities is payable, payment may be made on
the next succeeding day that is a Business Day at such place of payment, and
no interest shall accrue for the intervening period.
SECTION 11.08. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD (TO THE
EXTENT PERMITTED BY LAW) TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder, Affiliate or incorporator,
as such, of the Company shall not have any liability for any obligations of
the Company under the Securities or this Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. Each
Holder by accepting a Security waives and releases all such Persons from such
liability. Such waivers and releases are part of the consideration for the
issuance of the Securities.
SECTION 11.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind their successors. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.13. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or enforceable, the validity, legality and enforceability of
the remaining provisions shall not in any
36
way be affected or impaired thereby, and a Holder shall have no claim
thereunder for or against any party hereto.
SECTION 11.14. HEADINGS AND TABLE OF CONTENTS.
The headings and Table of Contents in this Indenture are for convenience
of reference only and shall not be deemed a part of this Indenture or limit
or otherwise affect the meaning hereof.
37
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
TOYOTA MOTOR CREDIT CORPORATION
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and
General Manager
[ ],
-----------------------------------
as Trustee
By:
-----------------------------------
Name
Title:
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On May ___, 1998, before me, _______________________________, Notary
Public, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, personally known to me to be the
person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which
the person acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On May ___, 1998, before me, ________________________________, Notary
Public, personally appeared _________________________________, personally
known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
ANNEX I
TO
INDENTURE
DATED AS OF MAY 1, 1998
BETWEEN
TOYOTA MOTOR CREDIT CORPORATION
AND
[_____________]
as Trustee
Definitions
The following terms have the respective meanings set forth below for all
purposes of the Indenture, and Section and Article references are to Sections
and Articles in the Indenture. Capitalized terms used in the Indenture and
the Securities not otherwise defined shall have the respective meanings
assigned thereto in the Annex of Definitions attached to the Amended and
Restated Trust and Servicing Agreement dated as of October 1, 1996 among
Toyota Motor Credit Corporation, TMTT, Inc. and (for certain limited purposes
only) First Bank National Association or in the Supplemental Annex of
Definitions attached to the 1998-B SUBI Supplement to the Amended and
Restated Trust and Servicing Agreement dated as of [__________], 1998, among
TMTT, Inc., (for certain limited purposes only) U.S. National Bank
Association, as Trust Agent, and [_____________]Company, as 1998-B
Securitization Trustee. In the event of any conflict between a definition
set forth both herein and in the Annex of Definitions or Annex of
Supplemental Definitions, the definition set forth herein shall prevail.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls or is controlled by, or is under direct or indirect
common control with, such Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing. For purposes of this Indenture, the 1998-B Securitization
Trust (and the 1998-B Securitization Trustee on behalf of the 1998-B
Securitization Trust) shall not be considered to be "Affiliates" of the
Company.
"Agent" means any Registrar, Paying Agent or co-Registrar or other agent
of the Company acting under the Indenture.
"Board of Directors" means the board of directors of the Company or any
committee thereof authorized generally or in any particular respect to
exercise the power of the board of directors of the Company.
"Certified Resolution" means a copy of a resolution of the Board of
Directors of the Company, certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted and to be in full force
and effect on the date of such certification.
I-1
"Commercial Paper Rate" means the Money Market Yield on the Calculation
Date for commercial paper maturing in one month as such rate appears at 11:00
a.m. New York City time on the Calculation Date on page 133 of the Dow ▇▇▇▇▇
Telerate Service (or such other page as may replace such page on that service
or such other service or services as may succeed such service) which shows
information for such rate as of the prior business day under the caption
"Daily Commercial Paper Rates (Non financial) from the Federal Reserve"(or
similar heading of like import). If by 3:00 p.m., New York City time, on the
related Calculation Date such rate is not yet available, then the Commercial
Paper Rate will be the Money Market Yield of the arithmetic mean of the
offered rates at approximately 11:00 a.m., New York City time, on such date
of three leading dealers of commercial paper in The City of New York for
commercial paper having a maturity date of one month placed for an industrial
issuer whose bond rating is "AA", or the equivalent, from a nationally
recognized securities rating agency; PROVIDED, HOWEVER, that if such dealers
are not quoting as mentioned in this sentence, the Commercial Paper Rate for
such date shall be the Commercial Paper Rate as in effect as of the
immediately preceding Calculation Date. For purposes of these definitions,
"Calculation Date" shall mean the second Business Day preceding each of the
original dates of investment in the Security (each of which is a Monthly
Allocation Date), and each Monthly Allocation Date thereafter, and "Money
Market Yield" shall mean a yield (expressed as a percentage rounded upwards
to the nearest one hundred-thousandth of a percentage point) calculated in
accordance with the following formula:
Money Market Yield = ([D x 360]/[360-{D x M}]) x 100
where "D" refers to the applicable per annum rate for commercial paper rate
quoted on a bank discount basis and expressed as a decimal, and "M" refers to
the actual number of days in the interest period for which interest is being
calculated. Such Commercial Paper Rate shall be calculated on each
Calculation Date by the Trustee.
"Company" means Toyota Motor Credit Corporation, a California
corporation, the issuer of the Securities under the Indenture, until a
successor replaces it pursuant to the Indenture and thereafter means such
successor.
"Corporate Trust Office" means an office of the Trustee at which at any
particular time its corporate trust business shall be administered, which at
the date of execution of the Indenture is located at Four Albany Street, New
York, New York 10006, Attention: Corporate Trust and Agency
Group--Structured Finance, or at any other such address as the Trustee may
designate from time to time by notice to the Holders.
"Date of Investment" means each Monthly Allocation Date on which an
amount is invested in the TMCC Demand Notes.
"Default" means any event that is or with the passing of time or giving
of notice or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.12.
"Event of Default" has the meaning specified in Section 6.01.
I-2
"GAAP" means generally accepted accounting principles in the United
States which are applied by the Company as of the date of the Indenture.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Holder" with respect to the TMCC Demand Notes, means a Person in
possession of a TMCC Demand Note, or a Person deemed an owner thereof
pursuant to Section 2.13 of the Indenture.
"Indenture" means the Indenture dated as of [____________] between the
Company and [_____________], as trustee, relating to [$________________]
aggregate principal amount of the Company's TMCC Demand Notes, including
Exhibit A and this Annex I thereto, as the same may be amended or
supplemented from time to time in accordance with its terms.
"Interest Payment Date" is any date on which interest is payable as set
forth in the Security.
"Maturity", with respect to any Security, means the date on which the
principal (and the accrued interest thereon to but excluding the date on
which such principal is paid) of such Security or an installment of principal
(and the accrued interest thereon to the date on which such principal is
paid) becomes due and payable as provided in or pursuant to the Indenture,
whether (i) at the Stated Maturity Date thereof, (ii) on the date specified
in a demand (as evidenced by the delivery to the Trustee of a demand in the
form of Exhibit B to the Indenture) for the payment of 100% of the
outstanding principal amount of the TMCC Demand Notes by any holder following
(x) the occurrence of a Liquidation Event or (y) in connection with a
reduction of the rating of the Company's short term debt to a rating less
than "A-1+" by Standard & Poor's or "P-1" by Moody's or a downgrade of the
Company's long term debt to a rating less than "Aa3" by Moody's in the
circumstances provided for in Section 4.01 of the Indenture or (iii) upon
declaration of acceleration upon the occurrence of an Event of Default
hereunder. A demand duly delivered to the Trustee in accordance with clause
(ii) above will cause the entire principal amount (and the accrued interest
thereon to but excluding the date on which such principal is paid) of the
Outstanding Securities to become due and payable on the date specified in
such demand. A Maturity pursuant to clause (i) or (ii) of this definition,
in and of itself, shall not be an Event of Default or Default hereunder.
"Officer" means the President or Vice President, the Chief Financial
Officer, the Chief Accounting Officer, the Treasurer, the Controller,
Secretary or Assistant Secretary of the Company.
"Officer's Certificate" means a certificate signed by any Officer of the
Company, and otherwise complying with the applicable requirements of Sections
11.04 and 11.05 of the Indenture.
I-3
"Opinion of Counsel" means a written opinion from legal counsel who, in
the case of an Opinion of Counsel addressed to the Trustee, is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company. Each opinion shall comply with the applicable requirements of
Sections 11.04 and 11.05 of the Indenture.
"Paying Agent" has the meaning specified in Section 4.02.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture or
governmental authority.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security. For purposes of this definition, any Security
authenticated and delivered under Section 2.07 in exchange for or in lieu of
a defaced, mutilated, lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the defaced, mutilated, lost, destroyed or stolen
Security.
"Record Date" means the day immediately preceding the related
Certificate Payment Date (whether or not a Business Day).
"Registrar" has the meaning specified in Section 4.02.
"Required Rate" with respect to any Monthly Allocation Date and the
principal amount outstanding as set forth on any of the Schedules attached to
a Security, means a per annum rate of interest which shall be calculated as
follows: (i) with respect to Securities representing the investment of any
Class A-1 Certificate Balance Semi-Annual Accrual Amount, Class A-2
Certificate Balance Semi-Annual Accrual Amount, Class A-3 Certificate Balance
Semi-Annual Accrual Amount, or Interest accrued on the Adjusted Class B
Certificate Balance or any Certificate Principal Loss Amounts allocated
thereto, the Commercial Paper Rate as such rate shall be adjusted monthly on
the second Business Day preceding each Monthly Allocation Date, PROVIDED,
HOWEVER that such rate shall not exceed 5% per annum; (ii) with respect to
any Security representing the investment of any amount allocated in reduction
of the Adjusted Class A-1 Certificate Balance Amount, [_____] per annum;
(iii) with respect to any Security representing the investment of any amount
allocated in reduction of the Adjusted Class A-2 Certificate Balance Amount,
[_____] per annum; (iv) with respect to any Security representing the
investment of any amount allocated in reduction of the Adjusted Class A-3
Certificate Balance Amount, [____] per annum; and with respect to any
Security representing the investment of any amount allocated in reduction of
the Adjusted Class B Certificate Balance, [____] per annum.
"Securities" means the Company's TMCC Demand Notes.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor thereto, and the regulations promulgated thereunder.
"Special Record Date" has the meaning specified in Section 2.12.
"Stated Maturity Date" when used with respect to the principal on the
Securities means the date specified on the Schedule attached to the certificate
representing such Security as the
I-4
fixed date on which the principal thereof is due and payable, which date
shall be (i) with respect to Securities representing the investment of any
Class A-1 Certificate Balance Accrual Amount, Class A-2 Certificate Balance
Accrual Amount, Class A-3 Certificate Balance (Semi-Annual) Accrual Amount or
Interest accrued on the Adjusted Class B Certificate Balance or any
Certificate Principal Loss Amounts allocated thereto, the Business Day
immediately preceding the next Certificate Payment Date that immediately
follows the related Date of Investment; and (ii) with respect to any Security
representing the investment of any amount allocated in reduction of the
Adjusted Class A-1 Certificate Balance Amount, the Adjusted Class A-2
Certificate Balance Amount, Adjusted Class A-3 Certificate Balance Amount or
the Adjusted Class B Certificate Balance, the next Business Day immediately
preceding the Class A-1 Targeted Maturity Date, the Class A-2 Targeted
Maturity Date, the Class A-3 Targeted Maturity Date or the Class B Targeted
Maturity Date, as applicable.
"Subsidiary" means any Corporation of which at the time of determination
the Company or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the shares of Voting Stock.
"Trustee" means [_____________], as trustee under the Indenture until a
successor replaces it in accordance with the provisions of the Indenture, and
thereafter means such successor.
"Trust Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Office including any Managing Director,
Principal Vice President, Assistant Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"United States" and "U.S." each mean the United States of America.
"U.S. Legal Tender" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
I-5
EXHIBIT A
THE TRUSTEE WILL NOT AUTHENTICATE OR DELIVER THIS SECURITY IN CONNECTION WITH
ANY REGISTRATION OF TRANSFER TO ANY PERSON UNLESS THE TRUSTEE HAS RECEIVED A
CERTIFICATION FROM THE TRANSFERRING HOLDER TO THE EFFECT THAT (i) IT IS NO
LONGER THE SECURITIZATION TRUSTEE OF THE 1998-B SECURITIZATION TRUST AND THE
PROPOSED TRANSFEREE IS ITS SUCCESSOR IN SUCH CAPACITY, OR (ii) A LIQUIDATION
EVENT HAS OCCURRED AND SUCH PROPOSED TRANSFER IS MADE IN CONTEMPLATION OF A
LIQUIDATION OF THE TRUST ASSETS.
[FORM OF FACE OF SECURITY]
TOYOTA MOTOR CREDIT CORPORATION
TMCC Demand Notes
[For amounts allocated as Class A-1 Certificate Balance Semi-Annual Accrual
Amounts](1)
[For amounts allocated as Class A-2 Certificate Balance Semi-Annual Accrual
Amounts]
[For amounts allocated as Class A-3 Certificate Balance Semi-Annual Accrual
Amounts]
[For amounts allocated as interest accrued on the Adjusted Class B Certificate
Balance and Certificate Principal Loss Amounts allocated thereto]
[For amounts allocated to make applications in reduction of the Adjusted
Class A-1 Certificate Balance Amount]
[For amounts allocated to make applications in reduction of the Adjusted
Class A-2 Certificate Balance Amount]
[For amounts allocated to make applications in reduction of the Adjusted
Class A-3 Certificate Balance Amount]
[For amounts allocated to make applications in reduction of the Adjusted
Class B Certificate Balance]
No.___________________
Toyota Motor Credit Corporation, a California corporation (the "Company,"
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to
[_____________] Company, in its capacity as 1998-B Securitization Trustee under
the 1998-B Securitization Trust Agreement dated as of [____], 1998, or
registered assigns, the principal sum of U.S. Dollars as shall be set forth on
the Schedule attached hereto as of the date of Maturity, and to pay interest on
the outstanding amount of principal, as set forth on the Schedule from time to
time, from the date such principal amount is originally issued and outstanding
(or from the most recent Interest Payment Date to which interest has been paid
or duly provided for), on the Business Day next preceding the Certificate
--------------------------
(1) Specify depending on TMCC Demand Note allocation.
A-1
Payment Date (including a Targeted Maturity Date) immediately following the
related Date of Investment (each an "Interest Payment Date"), at the then
applicable Required Rate [as such rate shall be adjusted on each Calculation
Date](2), to but excluding the date on which the principal hereof is paid or
duly provided for. Interest on this Security will be computed on the basis of
a 360-day year of twelve 30-day months. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of
business on the date that is one day (whether or not a Business Day), next
preceding such Interest Payment Date (each, a "Record Date"). Any such
interest which is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date shall forthwith cease to be payable to the
Holder on such Record Date by virtue of having been such Holder, and, at the
election of the Company, (i) may be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the
Holder of this Security not less than 10 days prior to such Special Record
Date or (ii) may be paid in any other lawful manner, all as more fully
provided in the Indenture. Payment of the principal and interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in New York, New York in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that, except as otherwise
provided in the Indenture, payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in
the register of Securities maintained by the Registrar.
The date of Maturity with respect to the principal (and the accrued
interest thereon to the date on which such principal is paid) amount evidenced
by this Security shall be, the earlier of (x) [the Business Day immediately
preceding the Targeted Maturity Date for the Class A-1/A-2/A-3/B
Certificates](3) [the Business Day immediately preceding the
Certificate Payment Date immediately following the related Date of
Investment](4), (y) the date specified in a demand (as evidenced by the
delivery to the Trustee of a demand in the form of Exhibit B to the Indenture)
for the payment of 100% of the outstanding principal amount of the TMCC Demand
Notes by any holder following the occurrence of a Liquidation Event or (z) the
date upon which the Outstanding Securities become due and payable due to the
declaration of acceleration upon the occurrence of an Event of Default under the
terms of the Indenture.
-------------------------
(2) Insert for TMCC Demand Notes the investment of any Class A-1
Certificate Balance Semi-Annual Accrual Amount, Class A-2 Certificate Balance
Semi-Annual Accrual Amount, Class A-3 Certificate Balance Semi-Annual Accrual
Amount or Interest accrued on the Adjusted Class B Certificate Balance or any
Certificate Principal Loss Amounts allocated thereto.
(3) Insert for any Security representing the investment of any amount
allocated in reduction of the Adjusted Class A-1 Certificate Balance Amount,
the Adjusted Class A-2 Certificate Balance Amount, the Adjusted Class A-3
Certificate Balance Amount or the Adjusted Class B Certificate Balance.
(4) Insert for TMCC Demand Notes the investment of any Class A-1
Certificate Balance Semi-Annual Accrual Amount, Class A-2 Certificate Balance
Semi-Annual Accrual Amount, Class A-3 Certificate Balance Semi-Annual Accrual
Amount or Interest accrued on the Adjusted Class B Certificate Balance or any
Certificate Principal Loss Amounts allocated thereto.
A-2
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: [_____], 1998
TOYOTA MOTOR CREDIT CORPORATION
By: __________________________
Name: ▇▇▇▇▇▇. ▇. ▇▇▇▇▇
Title: Senior Vice President and General
Manager
Title: Senior Vice President and
General Manager
Attest:
______________________
Secretary
[Corporate Seal]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
------------------------------------------------------------------------------
[___________________], [________________],
------------------------------------------------------------------------------
as Trustee as Trustee
------------------------------------------------------------------------------
OR
------------------------------------------------------------------------------
By: __________________________
Authorized Signatory By:_______________________
as Authenticating Agent
------------------------------------------------------------------------------
By:_______________________
Authorized Signatory
------------------------------------------------------------------------------
[FORM OF REVERSE OF SECURITY]
TOYOTA MOTOR CREDIT CORPORATION
TMCC DEMAND NOTES
1. INDENTURE.
This Security is one of the duly authorized issue of the Company's TMCC
Demand Notes (the "Securities"), issued by the Company under an Indenture
dated as of [______], 1998 (as the same may be amended or supplemented from
time to time, the "Indenture") between the Company and [_____________]
Company, as Trustee (the "Trustee," which term includes any successor trustee
under the Indenture).
The Securities are unsecured general obligations of the Company, limited
to an aggregate principal amount of [$____________________], except as
otherwise provided in the Indenture.
No reference herein to the Indenture and no provision of this Security
or the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, places and rate and in the coin and currency herein
and in the Indenture prescribed.
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Toyota Motor Credit
Corporation, Attention: Treasury Department.
2. CAPITALIZED TERMS.
Capitalized terms used in this Security have the meanings assigned to
them in the Indenture unless otherwise defined in this Security.
3. PAYING AGENT AND REGISTRAR.
The Trustee has been appointed to act as initial Paying Agent and
Registrar for the Securities in New York, New York. The Company may appoint
additional Paying Agents and co-Registrars, and may change any Paying Agent,
Registrar or co-Registrar, all as provided in the Indenture. Except as
otherwise provided in the Indenture, the Trustee, the Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
4. REDEMPTION.
The Securities are not redeemable prior to their respective maturities
at the option of the Company, in whole or from time to time in part.
A-5
5. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are issuable only in registered form, without coupons, in
denominations of at least U.S. $0.01 and integral multiples of $0.01 in
excess thereof. The Securities may be transferred only in accordance with
the provisions of Section 2.06(a) of the Indenture. A Holder may register
the exchange of any Security only in accordance with the provisions of
Section 2.06 of the Indenture. The Registrar or a co-Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents in form satisfactory to the Registrar and the Trustee. No service
charge shall be made to a Holder for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection
therewith, except as otherwise provided in the Indenture. The Company will
maintain in New York, New York, an office or agency where Securities may be
surrendered for registration of transfer or exchange.
6. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any Agent may treat the Person in whose name such
Security is registered as the owner of such Security for all purposes.
7. UNCLAIMED MONEY.
The Trustee and the Paying Agent shall pay to the Company upon written
request any U.S. Legal Tender or U.S. Government Obligations held by them for
the payment of the principal of or interest on the Securities which remains
unclaimed for two years after the date on which such payment shall have
become due. After payment to the Company as aforesaid, Holders entitled to
such moneys or U.S. Government Obligations must look to the Company for such
payment unless an applicable abandoned property law designates another Person.
8. DISCHARGE PRIOR TO MATURITY.
If the Company irrevocably deposits with the Trustee U.S. Legal Tender
or, in certain cases, U.S. Government Obligations sufficient to pay the
principal of and interest on the Securities to maturity, or if all the
outstanding Securities have been delivered to the Trustee for cancellation,
and in either case if the Company complies with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Securities, excluding its obligation to
pay the principal of and interest on the Securities.
9. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions and limitations set forth in the Indenture,
the Indenture or the Securities may be amended or supplemented with the consent
of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and compliance with any provision or obligation
under the Indenture or the Securities may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding.
A-6
The Indenture also permits the Company and the Trustee, without notice to or
consent of any Holder, to enter into certain amendments or supplements to the
Indenture or the Securities.
10. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee, or the
Holders of at least 25% in principal amount of the outstanding Securities,
may declare all unpaid principal of and accrued interest on the Securities to
be due and payable immediately in the manner and with the effect provided in
the Indenture. The Indenture provides that the Holders of a majority in
principal amount of the Securities outstanding may rescind an acceleration of
the Securities and its consequences on the terms and subject to the
conditions set forth in the Indenture. The Indenture also provides that the
Holders of a majority in principal amount of the outstanding Securities may
waive an existing Default or Event of Default and its consequences except,
among other things, a default in the payment of the principal of or interest
on any of the Securities.
11. TRUSTEE DEALINGS WITH THE COMPANY.
Subject to Section 2.06 of the Indenture, the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company or its Subsidiaries or Affiliates with the
same rights it would have if it were not the Trustee.
12. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or incorporator, as such, of
the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such Persons from such
liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
13. AUTHENTICATION.
This Security and the entries on the Schedule shall not be valid unless
the Trustee or an authenticating agent has signed the certificate of
authentication on this Security and such Schedule by manual signature.
14. GOVERNING LAW; HEADINGS.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD (TO THE EXTENT PERMITTED BY LAW)
TO PRINCIPLES OF CONFLICTS OF LAW.
The headings in this Security are for convenience of reference only and
shall not be deemed a part of this Security or limit or otherwise affect the
meaning hereof.
A-7
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(Insert Taxpayer Identification No.)________________
__________
__________
(Please print or typewrite name and address including postal zip code of
assignee)
the within Security and all rights thereunder, hereby irrevocably
constituting and appointing________________ attorney to transfer said
Security on the books of the Company with full power of substitution in the
premises.
A-8
SCHEDULE TO
TMCC DEMAND NOTE
NUMBER________
MAXIMUM AMOUNT $______________
AMOUNTS INVESTED AMOUNTS PAID
---------------------------------------- ------------------------------------
Date of
Investment Aggregate Current Stated Principal
or Amount of Amount Required Maturity Principal Interest Balance Initial of
Payment Investment Invested Rate Date Amount Amount Outstanding Trustee
------- ---------- -------- ---- ---- ------ ------ ----------- -------
A-9
EXHIBIT B
FORM OF DEMAND
The undersigned hereby certifies to [_____________], in its capacity as
trustee (the "Trustee") under the Indenture dated as of [_______], 1998
(the "Indenture") between the Trustee and Toyota Motor Credit
Corporation, that it is the holder of all or a portion of the Securities
issued and outstanding under the Indenture, and that pursuant to the
terms of the Indenture, it is demanding the payment in full of the
principal (plus accrued interest thereon to the date specified below) of
the Outstanding Securities in connection with:
/ / the occurrence of a Liquidation Event (which I hereby certify is
effective as of ____________________)
/ / the downgrade of the Company's short term debt to a rating less than
"A-1+" by Standard & Poor's or "P-1" by Moody's or a downgrade of the
Company's long term debt to a rating less than "Aa3" by Moody's (and I
hereby certify that I have obtained the advice of _________________
pursuant to Section 4.01 of the Indenture and have received the advice
required by such Section concerning ratings downgrades from
__________________ of Standard & Poor's and from _________ of Moody's
Investor's Service
The date on which such principal and accrued interest is to be paid
is:_________________.
Dated:
By:__________________________
B-1