Japanese Yen ("Y") 50,000,000,000
TOYOTA MOTOR CREDIT CORPORATION
(a California corporation)
1% Notes due 2004
PURCHASE AGREEMENT
November 9, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
NOMURA INTERNATIONAL PLC
DEUTSCHE BANK AG LONDON
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
TOKYO-MITSUBISHI INTERNATIONAL PLC
UBS AG, ACTING THROUGH ITS DIVISION WARBURG DILLON READ
c/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL.
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
as Representative of the Underwriters
Ladies and Gentlemen:
Toyota Motor Credit Corporation, a California corporation (the
"Company"), confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("▇▇▇▇▇▇▇
▇▇▇▇▇"), Nomura International plc, Deutsche Bank AG London, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited, Salomon Brothers International Limited, Tokyo-Mitsubishi
International plc, UBS AG, acting through its division Warburg Dillon Read
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 11 hereof), for which ▇▇▇▇▇▇▇
▇▇▇▇▇ is acting as representative with respect to the sale by the Company and
the purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in Schedule A attached hereto of
Y50,000,000,000 aggregate principal amount of the Company's 1% Notes due 2004
(the "Securities"). The Company is a wholly owned subsidiary of Toyota Motor
Sales, U.S.A., Inc. ("TMS"), which is a wholly owned subsidiary of Toyota Motor
Corporation. The Securities are to be issued pursuant to an indenture dated as
of August 1, 1991, as amended by the First Supplemental Indenture, dated as of
October 1, 1991 (the "Indenture")
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among the Company, The Chase Manhattan Bank, as trustee (the "Trustee") and
Bankers Trust Company.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (No. 333-60913) covering
registration of debt securities, including the Securities, under the Securities
Act of 1933, as amended (the "1933 Act"), which registration statement has been
declared effective by the Commission and copies of which have heretofore been
delivered to you. The Indenture has been qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"). Such Registration Statement, in the
form in which it was declared effective, including any amendments or supplements
thereto in the form such amendments or supplements became effective, and any
documents incorporated by reference therein through the date hereof, and at the
Closing Time (as defined in Section 2(b)), is hereinafter referred to as the
"Registration Statement." The Company proposes to file with the Commission
pursuant to paragraph (b) of Rule 424 ("Rule 424(b)") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations") a
prospectus supplement (the "Prospectus Supplement"), dated the date hereof, and
a prospectus (the "Base Prospectus"), dated September 3, 1998, each relating to
the Securities and the distribution thereof and has previously advised you of
all further information (financial and other) with respect to the Company set
forth therein. The Base Prospectus, as supplemented by the Prospectus
Supplement, together in the form in which they are filed with the Commission
pursuant to Rule 424(b) and including all documents incorporated or deemed to be
incorporated by reference therein, are hereinafter referred to as the
"Prospectus," except that if any revised prospectus shall be provided to the
Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus filed with the Commission pursuant
to Rule 424(b) (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b)), the term "Prospectus" shall refer to
such revised prospectus from and after the time it is first provided to the
Underwriters for such use. As used herein, the term "Prospectus Supplement"
shall refer the Prospectus Supplement dated November 9, 1999 used with respect
to the Securities. Any registration statement filed pursuant to Rule 462(b) of
the 1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include any Rule 462(b) Registration Statement. For purposes of this Agreement,
all references to the Registration Statement, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934 (the "1934
Act") which is incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
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The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Underwriter as
of the date hereof that:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act. At the time the Registration Statement became
effective, the Registration Statement complied and at the Closing Time,
the Registration Statement will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act, and the rules and regulations of the Commission promulgated
thereunder (the "1939 Act Regulations") and no stop order suspending the
effectiveness of the Registration Statement (including any Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. The Registration Statement (including any Rule 462(b)
Registration Statement) at the time it became effective, did not, and
each time thereafter at which any amendment to the Registration Statement
(including any Rule 462(b) Registration Statement) becomes effective and
as of the Closing Time, will not, considering the Registration Statement
and all Incorporated Documents (as defined in Section 5(b)(3)) considered
as a whole, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus, as of the date
hereof does not, and at the Closing Time, will not, contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided
however, that the representations and warranties in this subsection shall
not apply to that part of the Registration Statement which shall
constitute the Statements of Eligibility under the 1939 Act on Form T-1
of the Trustee or Bankers Trust Company, as the case may be, or apply to
statements or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for
use in the Registration Statement or Prospectus. Each Prospectus
delivered to the Underwriters for use in connection with this offering
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(ii) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
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(iii) The financial statements and any supporting schedules of
the Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated results of
their operations for the periods specified; and, except as stated
therein, said financial statements have been prepared in conformity with
generally accepted accounting principles in the United States applied on
a consistent basis; and any supporting schedules included or incorporated
by reference in the Registration Statement present fairly the information
required to be stated therein.
(iv) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business, (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business (which includes, but is not limited to, Euromarket, Euro Asian
or global financings and domestic private placement and public
financing), which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) since the date of the
most recent audited financial statements of the Company, there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock except as otherwise disclosed
in the documentation relating to the Securities.
(v) The Company (A) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
California with corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus, (B) has the requisite corporate power and authority to
execute and deliver this Agreement, the Indenture and the Securities and
to perform its obligations hereunder and thereunder, (C) has duly
authorized, executed and delivered this Agreement and this Agreement
constitutes the valid and binding agreement of the Company, and (D) is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification and in which the failure to do so would materially
adversely affect the business or financial condition of the Company.
(vi) Each "significant subsidiary", if any, of the Company (as
such term is defined in Rule 1-02 of Regulation S-X under the 1933 Act)
(each a "Subsidiary" and, collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the
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conduct of business, except where the failure so to qualify or to be in
good standing would not materially affect the business or financial
condition of the Company; except as otherwise disclosed in the
Prospectus, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of preemptive or
similar rights of any securityholder of such Subsidiary.
(vii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and assuming it has been duly and
validly authorized, executed and delivered by the Trustee, constitutes a
legally valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by the application of general principles
of equity, including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or at law.
(viii) The Securities have been duly and validly authorized by the
Company for issuance, offer and sale pursuant to this Agreement and, when
executed, authenticated and delivered pursuant to the provisions of the
Indenture and this Agreement against payment of the consideration set
forth herein and in the Prospectus, will constitute legally valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without limitation, fraudulent
conveyance laws) and by the application of general principles of equity ,
including without limitation, the concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or at law; and the
Securities will be entitled to the benefits of the Indenture; and the
Securities and the Indenture conform in all material respects to all
statements relating thereto contained in the Registration Statement and
the Prospectus.
(ix) Neither the Company nor any of its Subsidiaries is in
violation of its charter or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its Subsidiaries is a
party or by which it may be bound, or to which any of the property or
assets of the Company or any of its Subsidiaries is subject, which
violation or default would materially adversely affect the business or
financial condition of the Company and its Subsidiaries considered as one
enterprise; and the execution, delivery and performance of this Agreement
and the Indenture and the consummation of the transactions contemplated
herein and therein will not conflict with, or constitute a breach of, or
default
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under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its Subsidiaries pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its Subsidiaries is a party or by which it may be
bound, or to which any of the property or assets of the Company or any of
its Subsidiaries is subject, nor will such action result in any violation
of the provisions of the charter or bylaws of the Company or any of its
Subsidiaries or, to the best knowledge of the Company and any of its
Subsidiaries, any law, administrative regulation or administrative or
court decree, and no consent, approval, authorization, order or decree of
any court or governmental agency or body of the United States is required
for the consummation by the Company of the transactions contemplated by
this Agreement or the Indenture, except such as may be required under the
1933 Act or the 1933 Act Regulations or the 1939 Act or the 1939 Act
Regulations or as may be required by state securities or Blue Sky laws.
(x) Except as set forth in the Registration Statement, there is
no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against the Company or any of its subsidiaries
which is required to be disclosed in the Registration Statement or which
might in the opinion of the Company result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, or which might materially and adversely
affect the properties or assets thereof or which might materially and
adversely affect the consummation of this Agreement; all pending legal or
governmental proceedings to which the Company or any of its subsidiaries
is a party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to its business, are, considered
in the aggregate, not material; and there are no contracts or documents
of the Company or any of its subsidiaries which are required to be filed
as exhibits to the Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been so filed.
(xi) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently
conducted where its ownership or lease of substantial properties or the
conduct of its business requires such ownership or possession or the
obtaining of such governmental licenses, permits, consents, orders,
approvals and other authorizations and where the failure to do so would
materially adversely affect the business or financial condition of the
Company and its subsidiaries considered as one enterprise.
(xii) The documents incorporated by reference in the Prospectus,
at the time they were filed with the Commission, complied in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission promulgated thereunder (the "1934 Act
Regulations"), and, when read together with the other information in or
incorporated by reference in the Prospectus, did not contain an
6
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(xiii) The Company is not, and upon issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
(xiv) The Securities, upon issuance, will be excluded or exempted
under, or beyond the purview of, the Commodity Exchange Act, as amended,
and the rules and regulations of the Commodity Futures Trading Commission
under the Commodity Exchange Act.
(b) Any certificate delivered pursuant to this Agreement or the
transactions contemplated hereby and signed by any director or officer of the
Company and delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇ or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to each Underwriter as to
the matter covered thereby on the date of such certificate.
(c) Each Underwriter severally represents and agrees to the
following selling restrictions with respect to the Securities:
(i) No action has been or will be taken by the
Underwriters that would permit a public offering of
the Securities or possession or distribution of the
Prospectus or any offering material in relation to
the Securities in any jurisdiction where action by
the Company for that purpose is required unless the
Company has agreed to such actions and such actions
have been taken;
(ii) it will comply with all applicable laws and
regulations known by it, or that should have
reasonably been known by it, in each jurisdiction in
which it purchases, offers or sells the Securities
or possesses or distributes the Prospectus or any
other offering material and will obtain any consent,
approval or permission required by it for the
purchase, offer or sale by it of the Securities
under the laws and regulations in force in any
jurisdiction to which it is subject or in which it
makes such purchases, offers or sales and the
Company shall have no responsibility therefor;
(iii) it will not offer, sell or deliver any of the
Securities or distribute any such offering material
in or from any jurisdiction except under
circumstances which will result in compliance with
applicable laws
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and regulations and which will not
impose any obligation on the Company or the
Underwriters;
(iv) no Underwriter is authorized to give any information
or make any representations in relation to the
Securities other than those contained in the
Prospectus and such additional information, if any,
as the Company shall, in writing, provide to and
authorize the Underwriter so to use and distribute
to actual and potential purchasers of Securities.
Each Underwriter agrees that unless prohibited by
applicable law, it will make available upon the
request of each person to whom it offers or sells
the Securities a copy of the Prospectus for the
Securities;
(v) it has not offered or sold and, prior to the expiry
of the period of six months from the issue date of
the Securities, will not offer or sell any
Securities to persons in the United Kingdom except
to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes
of their businesses or otherwise in circumstances
which have not resulted and will not result in an
offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities
Regulations 1995, as amended;
(vi) it has only issued or passed on and will only issue
or pass on in the United Kingdom any document
received by it in connection with the issue of the
Securities to a person who is of a kind described in
Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996,
as amended, or is a person to whom such document may
otherwise lawfully be issued or passed on;
(vii) it has complied and will comply with all applicable
provisions of the FSA with respect to anything done
by it in relation to any Securities in, from or
otherwise involving the United Kingdom; and
(viii) the Securities have not been and will not be
registered under the Securities and Exchange Law of
Japan (the "Securities and Exchange Law"). Each
Underwriter severally agrees that it will not offer
or sell any Securities, directly or indirectly, in
Japan or to, or for the benefit of, any resident of
Japan (which term as used herein means any person
resident in Japan, including any corporation or
other entity organized under the laws of Japan) or
to others for re-offering or resale, directly or
indirectly, in Japan or to a resident of Japan,
except pursuant to an exemption from the
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registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law and
any other applicable laws, regulations and
ministerial guidelines of Japan.
2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the aggregate amount of Securities set forth
in Schedule A opposite the name of such Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
(b) Payment of the purchase price for, and delivery of the
certificates for, the Securities shall be made at the offices of O'Melveny &
▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other
place as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company, at 7:00 a.m.,
Los Angeles time, on November 22, 1999 (unless postponed in accordance with
Section 11 hereof), or such other time not later than ten business days after
such date as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company (such time
and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company, against
delivery to ▇▇▇▇▇▇▇ ▇▇▇▇▇ for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. Certificates for the
Securities shall be in such denominations (Y 1,000,000 or integral multiples
thereof) and registered in such names as the Underwriters may request in writing
at least two business days before Closing Time. It is understood that each
Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for their respective accounts, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Securities it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by Closing Time, but such payment
shall not relieve such Underwriter from its obligations hereunder. The
certificates for the Securities will be made available for examination and
packaging by ▇▇▇▇▇▇▇ ▇▇▇▇▇ not later than 10:00 a.m. on the last business day
prior to Closing Time at the offices of The Chase Manhattan Bank.
3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) The Company, subject to Section 3(b), will comply with the
requirements of Rule 424(b), as applicable, and will promptly notify the
Underwriters and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of
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any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
or for additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any Prospectus, or of
the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation of any proceedings for any
of such purposes; and (v) any change in the rating assigned by any
nationally recognized statistical rating organization to any debt
securities (including the Securities) of the Company, or the public
announcement by any nationally recognized statistical rating organization
that it has under surveillance or review, with possible negative
implications, its rating of any such debt securities, or the withdrawal
by any nationally recognized statistical rating organization of its
rating of any such debt securities since the date of this Agreement. The
Company will promptly effect the filings necessary pursuant to Rule
424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event that
it was not, it will promptly file such prospectus. The Company will make
every reasonable effort to prevent the issuance of any such stop order
and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will give the Underwriters notice of its
intention to file or prepare any additional registration statement with
respect to the registration of additional Securities, any amendment to
the Registration Statement (including any filing under Rule 462(b)) or
any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus (other than an amendment or supplement providing solely for
the establishment of or change in, the interest rates, maturities, price
or other terms of the Securities or similar changes or an amendment or
supplement which relates exclusively to an offering of debt securities
under the Registration Statement other than the Securities), whether by
the filing of documents pursuant to the 1934 Act (other than any Current
Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement other then the Securities),
the 1933 Act, or otherwise and will furnish the Underwriters with copies
of any such amendment or supplement or other documents proposed to be
filed or prepared a reasonable time in advance of such proposed filing or
preparation, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Underwriters or
counsel for the Underwriters shall reasonably object.
(c) The Company has delivered or will deliver to the
Underwriters as many conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) as the Underwriters
may reasonably request. The copies of the Registration Statement and
each amendment thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
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(d) The Company has delivered and will deliver to each
Underwriter, from time to time during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number
of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the
1933 Act or the 1934 Act or the respective applicable rules and
regulations of the Commission thereunder. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters shall be
identical to the electronically transmitted copies of thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) If any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriters or
counsel for the Company, to amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time it is required to be delivered to a purchaser, or if
it shall be necessary in the reasonable opinion of either such counsel,
to amend or supplement the Registration Statement or Prospectus in order
to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise so as maybe necessary
to correct such untrue statement or omission, and the Company will
furnish to the Underwriters a reasonable number of copies of such
amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Underwriters may designate; provided, however, that
the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to
continue such qualifications in effect for a period of not less than one
year from the effective date of this Agreement. The Company will
promptly advise the Underwriters of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve month period beginning not later than the first day of
the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
11
(h) The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus
under the caption "Use of Proceeds."
(i) Immediately following the execution of this Agreement, the
Company will prepare, and file or transmit for filing with the Commission
in accordance with Rule 424(b), copies of a Prospectus containing the
terms of the Securities and such other information as the Underwriters
and the Company deem appropriate.
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file
all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
(k) From the date of this Agreement until Closing Time, the
Company will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
directly or indirectly, sell, offer to sell, contract to sell, or
otherwise dispose of, or announce the offering of, any debt securities
denominated in Japanese Yen, or any security exchangeable into such debt
securities, or indexed to Japanese Yen.
(l) The Company shall use its best efforts to obtain approval
for the listing of the Securities on the Luxembourg Stock Exchange by the
Closing Time or as soon thereafter as practicable.
4. PAYMENT OF EXPENSES. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (a) the
preparing, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (b) the printing and delivery of this Agreement, the Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (c) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, (d) the fees and disbursements of the
Company's counsel and accountants, (e) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof (not to
exceed $5,000), including filing fees and the fee and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (f) the printing
and delivery to the Underwriters of the Prospectus and any amendments or
supplements thereto, (g) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (h)
fees and expenses of the Trustee and any paying agents, including fees and
disbursements of counsel for the Trustee in connection with the Securities, and
(h) any fees of ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Ratings
Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 5 or Section 10(a)(i) hereof, the Company shall, as
previously agreed, reimburse the
12
Underwriters for their out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the Company contained in Section 1 hereof or in certificates of
any officer of Company delivered pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at Closing Time no stop
order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of the Underwriters. A prospectus shall have
been filed with the Commission in accordance with Rule 424(b).
(b) At Closing Time, the Underwriters shall have received:
(i) The opinion, dated as of Closing Time, of ▇▇▇▇
▇▇▇▇▇, Esq., General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(A) The Company is a corporation duly
incorporated, validly existing and in good standing under the laws
of the State of California.
(B) The Company has corporate power and corporate
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and in
each document filed pursuant to the 1934 Act and incorporated by
reference into the Prospectus.
(C) This Agreement has been duly authorized by
all necessary corporate action on the part of the Company, and has
been duly executed and delivered by the Company.
(D) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company and has been
duly executed and delivered by the Company and the Indenture has
been qualified under the 1939 Act. If California law were to
apply, the Indenture would constitute a legally valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by the application of general
principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible
13
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity
or at law.
(E) The Securities (in the form of specimen
certified by the Company's Secretary and examined by such counsel)
are in a form permitted by the Indenture, and have been duly
authorized by all necessary corporate action on the part of the
Company for issuance, offer and sale to the Underwriters as
contemplated by this Agreement and as provided for in the
Prospectus. If California law were to apply, the Securities when
executed and authenticated as specified in the Indenture and
delivered against payment of the purchase price therefor pursuant
to this Agreement, would constitute legally valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by the application of
general principles of equity including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a
proceeding in equity or at law; and the Securities will be
entitled to the benefits of the Indenture.
(F) To such counsel's knowledge, the Company is
duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which its ownership or
lease of substantial properties or the conduct of its business
requires such qualification and in which the failure to so qualify
and be in good standing would materially adversely affect its
business or financial condition.
(G) The Registration Statement has been declared
effective under the 1933 Act and, to his knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission.
(H) At the time the Registration Statement became
effective, the Registration Statement (other than the financial
statements and supporting schedules and other financial,
statistical and accounting data included or incorporated by
reference and the Statements of Eligibility on Form T-1 filed as
exhibits therein, as to which no opinion need be rendered)
appeared on its face to comply as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations
and the 1939 Act and the 1939 Act Regulations.
(I) The information in the Prospectus under the
captions "Description of the Notes" and "Description of Debt
Securities" to the extent that it constitutes matters of law,
summaries of legal matters, documents or
14
proceedings, or legal conclusions, has been reviewed by him and is
correct in all material respects.
(J) No authorization, approval, consent or order
of any court or governmental authority or agency is required in
connection with the sale of the Securities to the Underwriters,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or state
securities laws.
(K) Each document filed pursuant to the 1934 Act
(other than the financial statements and supporting schedules and
other financial, statistical and accounting data included therein,
as to which no opinion need be rendered) and incorporated by
reference in the Prospectus when filed, appeared on its face to
comply as to form in all material respects with the 1934 Act and
the 1934 Act Regulations thereunder in effect at the date of their
filing.
(L) To such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement or in each
document filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus, other than those disclosed therein,
and all pending legal or governmental proceedings to which the
Company or any of its Subsidiaries is a party or to which any of
their property is subject which are not described in the
Registration Statement or in each document filed pursuant to the
1934 Act and incorporated by reference in the Prospectus,
including ordinary routine litigation incidental to the business,
are, considered in the aggregate, not material.
(M) To such counsel's knowledge, no default
exists in the due performance or observance by the Company of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument described or referred to in the Registration
Statement or filed as an exhibit thereto or incorporated by
reference therein, which default would have a material adverse
effect on the financial condition, earnings, business affairs,
business prospects, properties or results of operations of the
Company and its subsidiaries considered as one enterprise.
(N) The execution and delivery of this Agreement,
the Indenture, the Securities and the consummation of the
transactions contemplated herein and therein will not (x) conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument known to such counsel
to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject,
15
(y) result in any violation of the provisions of the charter or
bylaws of the Company, or (z) to such counsel's knowledge, result
in any violation of any applicable law, administrative regulation
or administrative or court decree.
(O) The shares of issued and outstanding Common
Stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable.
(P) To such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in
the Registration Statement or in each document filed pursuant to
the 1934 Act and incorporated by reference in the Prospectus, or
to be filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto, and the
descriptions thereof are correct in all material respects.
Additionally such counsel shall state that he does not believe that the
Registration Statement and each document filed pursuant to the 1934 Act and
incorporated by reference therein (each, an "Incorporated Document") considered
as a whole as of the time the Registration Statement became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, not
misleading, or that the Prospectus and the Incorporated Documents, considered as
a whole, as of the date of the Prospectus Supplement and at the Closing Time,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel may
state that they express no view as to the Statements of Eligibility on Form T-1,
financial statements and supporting schedules and other financial, statistical
and accounting data included or incorporated by reference in such Registration
Statement or Prospectus.
(c) The opinion, dated as of Closing Time, of O'Melveny & ▇▇▇▇▇
LLP, counsel for the Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of California.
(ii) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company, and has
been duly executed and delivered by the Company.
(iii) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company and has been
duly executed and delivered by the Company and the Indenture has
been qualified by the 1939 Act. Assuming the due authorization,
execution and delivery thereof by the Trustee, the Indenture
constitutes a legally valid and binding obligation of the Company,
enforceable against the Company in
16
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by the application of general
principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity
or at law.
(iv) The Securities (in the form of specimen certified by
the Company's Secretary and examined by such counsel) are in a
form permitted by the Indenture, have been duly authorized by all
necessary corporate action on the part of the Company for
issuance, offer and sale to the Underwriters as contemplated by
this Agreement, when executed and authenticated as specified in
the Indenture and delivered against payment of the purchase price
therefor pursuant to this Agreement and as provided for in the
Prospectus, will constitute legally valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally (including, without limitation, fraudulent
conveyance laws) and by the application of general principles of
equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at
law; and the Securities will be entitled to the benefits of the
Indenture.
(v) The Registration Statement has been declared
effective under the 1933 Act and, to their knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(vi) At the Closing Time, the Registration Statement
(other than the financial statements and supporting schedules and
other financial and statistical data included therein, as to which
no opinion need be rendered) appeared on its face to comply as to
form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939 Act and the 1939 Act
Regulations.
(vii) The Company is not an "investment company" as such
term is defined in the 1940 Act.
Additionally, such counsel shall state, based upon its review and
participation in conferences with officers and other representatives of
17
the Company and representatives of the Company's independent public
accountants at which the Registration Statement and the Prospectus were
discussed, no facts have come to their attention that has caused them to
believe that the Registration Statement and the Incorporated Documents,
considered as a whole as of the time the Registration Statement became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, not misleading, or that the Prospectus and the
Incorporated Documents, considered as whole, as of the date of the
Prospectus Supplement and at the Closing Time, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel
may state that they make no statement as to Statements of Eligibility on
Form T-1, the financial statements and supporting schedules and other
financial, statistical and accounting data contained or incorporated by
reference therein.
(d) The favorable opinion of O'Melveny & ▇▇▇▇▇ LLP, as special
tax counsel for the Underwriters, dated the Closing Time, to the effect
that for federal income tax purposes, the statements in the Prospectus
under the headings "Description of the Notes--Redemption for Tax Reasons"
and "United States Federal Taxation," to the extent such matters
constitute matters of law or legal conclusion with respect thereto are
correct in all material respects.
(e) At Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Registration Statement or the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and the Underwriters shall have received a
certificate of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration Statement has been
issued and to their knowledge, no proceedings for that purpose have been
initiated or threatened by the Commission.
(f) At the time of execution of this Agreement, the
Underwriters shall have received from PricewaterhouseCoopers LLP a letter
dated such date, in form and substance satisfactory to the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain other information
contained in the Registration Statement and the Prospectus.
18
(g) At Closing Time, the Underwriters shall have received from
PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the date referred
to shall be a date not more than three business days prior to Closing
Time.
(h) At Closing Time, the Company's long term debt shall be
rated at least Aa1 by ▇▇▇▇▇'▇ Investor's Service, Inc. and AAA by
Standard & Poor's Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. and since the date of this Agreement, there shall not have occurred
a downgrading in the ratings assigned to the Company's long term debt by
any "nationally recognized statistical rating agency", as that term is
defined by the Commission for the purposes of Rule 436(g)(2) under the
1933 Act, and no such organization shall have publicly announced that it
has under surveillance or review its ratings of the long term debt of the
Company.
(i) At Closing Time, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale
of the Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Underwriters and counsel for the
Underwriters.
(j) At Closing Time, the Company shall have caused to be made
an application for the listing of the Securities on the Luxembourg Stock
Exchange.
(k) At Closing Time, all consents of the Ministry of Finance of
Japan (the "MOF"), if any, required for the Company to issue the
Securities shall have been obtained. After the Closing Time, the Company
shall cause to be made all filings required by the MOF in connection with
the Securities.
(l) If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, this Agreement may
be terminated by the Underwriters by notice to the Company at any time at
or prior to Closing Time, and such termination shall be without liability
of any party to any other party except as provided in Section 4 hereof.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement
19
of a material fact contained in the Registration Statement (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is effected
with the written consent of the Company; and
(iii) against any and all reasonable expenses whatsoever, as
incurred (including the reasonable fees and disbursements of counsel
chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the extent authorized in Section 6(c))
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), or the Prospectus (or any
amendments or supplements thereto), and provided further, however, that the
indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any Underwriter with respect to any loss, liability, claim, damage
or expense arising from the sale of Securities by such Underwriter to any
person if all of the following occur: (x) such Underwriter has failed to
send or give a copy of the Prospectus (excluding documents incorporated by
reference therein), as it may then have been amended or supplemented, to that
person at or prior to the time of written confirmation of such sale to the
extent necessary in accordance with applicable law; (y) the untrue statement
or alleged untrue statement of a material fact in or omission or alleged
omission of a material fact from a previous form of Prospectus was corrected
in the Prospectus, as then amended or supplemented; and (z) such Underwriter
shall have been notified as to such amendment or supplement as set forth
herein and the Company shall have delivered copies of the Prospectus, as so
amended or supplemented, to such Underwriter.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and expense
20
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions made in the Registration Statement (or any
amendment or supplement thereto), or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in the Registration Statement (or any amendment or
supplement thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt written notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party of such commencement shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may assume the defense of the indemnified
party by retaining counsel reasonably satisfactory to the indemnified party
to represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
disbursements of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent does not contain a statement as to or an
admission of fault, culpability, or a failure to act by or on behalf of any
indemnified party (unless such statement is agreed to by the indemnified
party in writing); provided, however, that in the event such settlement,
compromise or consent by the indemnifying party does not include an
unconditional release of each indemnified party from all liability arising
out of any litigation, investigation, proceeding or claim, the provisions of
this section with respect to indemnification shall continue and survive.
7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any
reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters shall contribute to the aggregate
21
losses, liabilities, claims, damages and expenses of the nature contemplated
by said indemnity agreement incurred by the Company and the Underwriters, as
incurred, in such proportions that each Underwriter is responsible for that
portion represented by the percentage that the total commissions and
underwriting discounts received by such Underwriter pursuant to this
Agreement to the date of such liability bears to the initial public offering
price of the Securities sold to or through such Underwriter to the date of
such liability to which such losses, liabilities, claims, damages or expenses
relate and the Company is responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
If, however, the allocation provided in the previous paragraph is not
permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect, not only the relative benefits received by the
Company on the one hand, and the applicable Underwriter(s), on the other
hand, in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses but also the relative fault
of the Company, on the one hand, and the applicable Underwriters, on the
other hand in connection with the offering of the Securities that were the
subject of the claim for indemnification. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the total proceeds (net of the
total discounts or commissions) from the sale of the Securities (before
deducting expenses) received by the Company bears to the total discount or
commission received by the applicable Underwriters in respect thereof. The
relative fault of the Company, on the one hand, and the applicable
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the applicable Underwriter(s) and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into
account of the equitable considerations referred to above in Section 6. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission covered by
Section 6(a) hereof.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of
22
any damages which such Underwriter has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
principal amount of Securities set forth opposite their respective names in
Schedule A hereto and not joint.
8. CURRENCY INDEMNITY
If, under any applicable law and whether pursuant to a judgment being
made or registered against the Company or for any other reason, any payment
under or in connection with this Agreement is made or is to be satisfied in a
currency (the "other currency") other than that in which the relevant payment
is expressed to be due (the "required currency") under this Agreement, then,
to the extent that the payment (when converted into the required currency at
a rate of exchange on the date of payment or, if it is not practicable for
the Underwriters to purchase the required currency with the other currency on
the date of payment, at the rate of exchange as soon thereafter as it is
practicable to do so) actually received by the Underwriters falls short of
the amount due under the terms of this Agreement, the Company shall, as a
separate and independent obligation, indemnify and hold harmless the
Underwriters against the amount of such shortfall. For the purposes of this
Clause, "rate of exchange" means the rate at which the Underwriters are able
on the London foreign exchange market on the relevant date to purchase the
required currency with the other currency and shall take into account any
premium and other reasonable costs of exchange.
9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties, indemnities and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
10. TERMINATION OF AGREEMENT.
(a) The Underwriters may terminate this Agreement, immediately upon
notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the execution of this Agreement or since the respective dates
as of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, or (ii) if there shall have occurred any outbreak or escalation
of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the
reasonable judgment of the Underwriters (after consultation with the
Company), impracticable to market the Securities or enforce contracts for the
sale of the Securities, (iii) if there has been a change in regional or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would in the view of the Underwriters
be likely to prejudice materially the success of the offering and
distribution of the Securities or dealings in the Securities in the secondary
market, or (iv) if trading in any securities of the Company has been
suspended by the Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by
federal, California or New York authorities, or (v) if the rating assigned by
either Standard & Poor's or ▇▇▇▇▇'▇ Investors Service, Inc. to any debt
securities of the Company shall have been lowered or if either such rating
agency shall have, subsequent to the date of this Agreement, pulicly
announced that it has placed any debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading.
23
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof.
11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail at Closing Time to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Underwriters shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Underwriters shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount of
the Securities, the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of the
Securities, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Underwriters or the Company shall
have the right to postpone Closing Time for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
12. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters at North Tower, World
Financial Center, New York, New York 10281-1307, attention Capital Markets
Desk; and notices to the Company shall be directed to it at ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of Vice
President--Treasury.
13. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and
7 hereof and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof
are intended to be for the sole and exclusive benefit of the Underwriters and
the Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No
24
purchaser of Securities from any underwriter shall be deemed to be a
successor by reason merely of such purchase.
14. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original hereof.
15. CAPTIONS. The captions in this Agreement are for convenience
of reference only and shall not define or limit any of the terms or
provisions hereof.
16. GOVERNING LAW AND TIME. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed in said State. Except where otherwise
provided, specified times of day refer to New York City time.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and
General Manager
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
NOMURA INTERNATIONAL PLC
DEUTSCHE BANK AG LONDON
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
TOKYO-MITSUBISHI INTERNATIONAL PLC
UBS AG, ACTING THROUGH ITS DIVISION WARBURG DILLON READ
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇
--------------------------------
For themselves and as Representative of the
Underwriters named in Schedule A hereto.
26
SCHEDULE A
Principal Amount
Name of Underwriter of Securities
------------------- ----------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International Y22,500,000,000
Nomura International plc 22,500,000,000
Deutsche Bank AG London 1,000,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited 1,000,000,000
Salomon Brothers International Limited 1,000,000,000
Tokyo-Mitsubishi International plc 1,000,000,000
UBS AG, acting through its division Warburg Dillon Read 1,000,000,000
===============
Total Y50,000,000,000
A-1
SCHEDULE B
1. The initial public offering price of the Securities shall be
99.429% of the principal amount thereof, plus accrued interest, if any, from
the date of issuance.
2. The purchase price to be paid by the Underwriters for the
Securities shall be 99.179% of the principal amount thereof.
3. The interest rate on the Securities shall be 1.00% per annum.
B-1