TOYOTA MOTOR CREDIT CORPORATION
Medium-Term Notes Due From 9 Months or More
From Date of Issue
FIRST AMENDED AND RESTATED DISTRIBUTION AGREEMENT
September 3, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
North Tower, 23rd Floor
World Financial Center
New York, New York 10281-1323
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ BROTHERS INC.
American Express Tower
World Financial Center
New York, New York 10285
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Seven World Trade Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Toyota Motor Credit Corporation, a California corporation (the "Company")
previously entered into a Distribution Agreement, dated October 17, 1991 (the
"Original Agreement"), which was amended by Amendment No. 1 thereto dated
September 1, 1992 ("Amendment No. 1") and Amendment No. 2 thereto dated March 9,
1994 ("Amendment No. 2," the Original Agreement, as amended, is referred to as
the "First Distribution Agreement"). ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and ▇▇▇▇▇▇ Brothers Inc.
("▇▇▇▇▇▇") were parties to the Original Agreement, Amendment No. 1 and Amendment
No. 2; ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("Goldman") and ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("▇.▇.
▇▇▇▇▇▇") became parties to the First Distribution Agreement pursuant to
Amendment No. 2. The parties to the First Distribution Agreement now desire to
amend and restate the First Distribution Agreement in its entirety to, among
other things, incorporate the changes made in Amendment No. 1 and Amendment No.
2, add Agents with respect to the issue and sale of the Company's Medium-Term
Notes, authorize additional Medium-Term Notes, and make certain other changes.
Accordingly, the First Distribution Agreement is hereby amended and restated in
its entirety as follows. (The First Distribution Agreement, as hereby amended
and restated, shall be referred to hereafter as the "Agreement".)
The Company confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, Goldman
and ▇.▇. ▇▇▇▇▇▇ and enters into an agreement with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("SSB")
(collectively, the "Agents") with respect to the issue and sale by the Company
of its Medium-Term Notes described herein (the "Notes"). The Notes are to be
issued pursuant to an indenture (as the same may be amended or restated from
time to time, the "Indenture") dated as of August 1, 1991, as amended by the
First Supplemental Indenture, dated as of October 1, 1991 among the Company, The
Chase Manhattan Bank and Bankers Trust Company. Bankers Trust Company will act
as trustee with respect to the Notes (the "Trustee").
As of the date hereof, the Company has authorized the issuance and
sale by the Company directly or through the Agents pursuant to the terms of this
Agreement of up to $9,000,000,000 (or its equivalent based on the applicable
exchange rate at the time of issuance, in such foreign currencies or units of
two or more currencies as the Company shall designate at the time of issuance)
aggregate principal amount of Notes, of which approximately $6,968,605,000
aggregate principal amount of Notes have previously been issued and
$2,031,395,000 remain available for issuance as of the date hereof; provided
that, in calculating the aggregate principal amount of Notes authorized, with
respect to Notes issued at a discount to face, the initial offering price shall
be used, and with respect to Notes issued at a premium to face, the face amount
of such Notes shall be used. It is understood, however, that the Company may
from time to time, pursuant to an Officer's Certificate delivered to the
Trustee pursuant to Section 301 of the Indenture (with an original copy thereof
delivered to the Agents), reduce the authorized aggregate initial offering price
of the Notes (but not below the aggregate initial offering price of Notes
previously issued under the Indenture) or authorize the issuance of additional
Notes and that such additional Notes may be distributed directly by the Company
or through or to the Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
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This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed to
by the Company and the related Agent or Agents) to one or more Agents as
principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-60913) for the
registration of debt securities, including the Notes, under the Securities Act
of 1933, as amended (the "1933 Act") and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the Commission and the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit) and
the prospectus constituting a part thereof, and any prospectus supplements
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934 (the "1934 Act") or
the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Agents by the Company for use in connection
with the offering of the Notes which is not required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations, the term "Prospectus" shall
refer to such revised prospectus from and after the time it is first provided to
the Agents for such use; provided that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such filing,
all references to the "Registration Statement" shall also be deemed to include
the Rule 462(b) Registration Statement. For purposes of this Agreement, all
references to the Registration Statement, Prospectus or preliminary prospectus
or to any amendment or supplement thereto shall be deemed to include any copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("▇▇▇▇▇").
SECTION 1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT OF AGENTS. Subject to the terms and conditions
stated herein, the Company hereby appoints the Agents, except as otherwise
provided in this Section 1(a), as the exclusive agents for the purpose of
soliciting purchases of the Notes from the Company by others and agrees that,
except as otherwise contemplated herein, whenever the Company determines to sell
Notes directly to one or more Agents as principal for resale to others, it will
enter into a Terms Agreement (as hereafter defined) relating to each such sale
in accordance with the provisions of Section 3(b) hereof if requested by such
Agent. The Company agrees that, except as otherwise provided in this Section
1(a), during the period the Agents are acting as the Company's agents hereunder,
the Company will not engage any other party to assist in the placement of the
Notes (other than any person or entity which, by executing a counterpart of this
Agreement, becomes an Agent hereunder). Notwithstanding the foregoing, the
Company reserves the right to (i) appoint additional agents for the purpose of
assisting in the placement of the Notes during the term of this Agreement under
the terms of an agreement substantially identical to this Agreement (provided
that the commission to be paid to such additional agents in
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connection with the sale of any Note shall be the applicable commission
determined pursuant to Section 3(a) hereof), and (ii) sell Notes to one or more
underwriters in a discrete underwritten transaction or transactions so long as
such underwriter or underwriters shall execute an agreement substantially
identical to this Agreement relating to such underwritten transaction or
transactions, provided that no such agreement will appoint any such underwriter
an agent under this Agreement except as relates to the related transaction or
transactions. As used herein, the term "Agent", in addition to ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, Goldman, ▇.▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and SSB, refers to each person or
entity which, at any particular time, is an agent or underwriter, as the case
may be, for the Company hereunder as evidenced by its execution of a counterpart
of this Agreement.
(b) REASONABLE EFFORTS SOLICITATIONS; RIGHT TO REJECT OFFERS. Upon
receipt of instructions from the Company, the Agents will use their reasonable
efforts to solicit purchases of such principal amount of Notes as the Company
and the Agents shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the initial offering
price of Notes registered pursuant to the Registration Statement. The Agents
will have no responsibility for maintaining records with respect to the
aggregate initial offering price of Notes sold, or of otherwise monitoring the
availability of Notes for sale under the Registration Statement. Each Agent
will communicate to the Company, orally or in writing, each offer to purchase
Notes, other than those offers rejected by such Agent. Each Agent shall have
the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of the Agent's agreement contained herein. The Company may
accept or reject any proposed purchase of the Notes, in whole or in part.
(c) SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPALS. In
soliciting purchases of the Notes on behalf of the Company, unless otherwise
specified pursuant to the terms hereof, each Agent shall act solely as agent for
the Company and not as principal. Each Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company. No
Agent shall have any liability to the Company in the event any such purchase is
not consummated for any reason. No Agent shall have any obligation to purchase
Notes from the Company as principal, but may agree from time to time to purchase
Notes as principal. Any such purchase of Notes by an Agent as principal shall
be made pursuant to a Terms Agreement in accordance with Section 3(b) hereof if
requested by such Agent. If the Company shall default on its obligation to
deliver Notes to a purchaser whose offer has been solicited by such Agent on any
agency basis and accepted by the Company due to its refusal to perform or
because of a breach of representation or warranty contained herein, the Company
shall (i) hold such Agent harmless against any loss, claim or damage arising
from or as a result of such default by the Company and (ii) pay to such Agent
any commission to which it would otherwise be entitled absent such default.
(d) RELIANCE. The Company and the Agents agree that any Notes the
placement of which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, in reliance on the
representations, warranties, covenants and
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agreements of the Company contained herein and on the terms and conditions and
in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Agent as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether through the Agents as agents or to one or more
Agents as principal), as of the date of each delivery of Notes (whether through
the Agents as agents or to one or more Agents as principal) (the date of each
such delivery to one or more Agents as principal being hereafter referred to as
a "Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of or a change in, the
interest rates, maturity, price or other terms of Notes or similar changes) or
there is filed with the Commission any document incorporated by reference into
the Prospectus (other than any Current Report on Form 8-K relating exclusively
to the issuance of debt securities under the Registration Statement other than
the Notes) (each of the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) REGISTRATION STATEMENT AND PROSPECTUS. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in
all material respects with the applicable requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission promulgated thereunder and no stop order
suspending the effectiveness 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; and the Indenture has been duly
qualified under the 1939 Act. The Registration Statement (including
any Rule 462(b) Registration Statement) at the time it became
effective did not, and at each time thereafter at which any amendment
to the Registration Statement (including any Rule 462(b) Registration
Statement) becomes effective or any Annual Report on Form 10-K is
filed by the Company with the Commission and as of the applicable
Representation Date, will not, considering the Registration Statement
and all Incorporated Documents (as defined in Section 5(a)(4))
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 as of the applicable
Representation Date 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
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Agents expressly for use in
the Registration Statement or Prospectus or to those parts of the
Registration
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Statement which constitute the Statements of Eligibility under the
1939 Act on Form T-1. Each Prospectus delivered to the applicable
agent for use in connection with the offering of the Notes is
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(ii) INCORPORATED DOCUMENTS. 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 promulgated thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in or incorporated by reference in the Prospectus, did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(iii) ACCOUNTANTS. The accountants who certified the financial
statements included or incorporated by reference in the Prospectus are
independent public accountants within the meaning of the 1933 Act and
the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. 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.
(v) DUE INCORPORATION; AUTHORIZATION AND VALIDITY OF THIS
AGREEMENT, THE INDENTURE AND THE NOTES. 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,
any Terms Agreement, the Indenture and the Notes and to perform its
obligations hereunder and thereunder, (C) has duly authorized,
executed and delivered this Agreement and any Terms Agreement and each
of this Agreement and such Terms 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.
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(vi) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. 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 financing 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 a particular issuance of
Notes, including the applicable pricing supplement.
(vii) SIGNIFICANT SUBSIDIARIES. Each "significant subsidiary", if
any, of the Company (as such term is defined in Rule 1-02 of
Regulation S-X under the 1933 Act) (each a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly organized and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not materially affect the business or financial
condition of the Company; except as otherwise disclosed in the
Prospectus, all of the issued and outstanding capital stock of each
such Subsidiary has been duly authorized and validly issued, is fully
paid and non-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.
(viii) THE INDENTURE. 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 (1) bankruptcy, insolvency reorganization,
moratorium or similar laws affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) or 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, (2) requirements that a claim with respect to any
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Notes payable in foreign or composite currency (or a foreign or
composite currency judgement in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (3) governmental authority to
limit, delay or prohibit the making of payments outside the United
States.
(ix) THE NOTES. The Notes have been duly and validly authorized by
the Company for issuance, offer and sale pursuant to this Agreement
and, when completed as contemplated by the Procedures (hereinafter
defined), executed, authenticated and delivered pursuant to the
provisions of the Indenture and this Agreement against payment of the
consideration set forth in the Prospectus or pursuant to any Terms
Agreement, 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 (1) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally (including, without limitation, fraudulent conveyance laws)
or 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, (2) requirements that a claim with
respect to any Notes payable in foreign or composite currency (or a
foreign or composite currency judgement in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (3) governmental authority to
limit, delay or prohibit the making of payments outside the United
States and will be entitled to the benefits of the Indenture; and the
Notes and the Indenture conform in all material respects to all
statements relating thereto contained in the Registration Statement.
(x) NO DEFAULTS; COMPLIANCE WITH LAWS; REGULATORY APPROVALS.
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 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, any Terms Agreement and the Indenture and the consummation
of the transactions contemplated herein and therein will not conflict
with, or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries pursuant
to, any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its
Subsidiaries is a party or by which it may be bound, or to which any
of the property or assets of the Company or any of its Subsidiaries is
subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or any of its
Subsidiaries or, to the best knowledge of the
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Company or 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, any Terms
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.
(xi) LEGAL PROCEEDINGS; CONTRACTS. 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 or any Terms 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.
(xii) LICENSES. 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.
(xiii) INVESTMENT COMPANY ACT. The Company is not, and upon
issuance and sale of the Notes 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) COMMODITY EXCHANGE ACT. The Notes, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the
rules and regulations of the
9
Commodity Futures Trading Commission under the Commodity Exchange Act
(the "Commodity Exchange Act Regulation").
(xv) RATING OF THE NOTES. The Company's long term debt rating is
"Aa1" by ▇▇▇▇▇'▇ Investors Service, Inc. and "AAA" by Standard &
Poor's Ratings Services.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
director or officer of the Company and delivered to the Agents or to counsel to
the Agents in connection with an offering of Notes or the sale of Notes to one
or more of the Agents as principal shall be deemed a representation and warranty
by the Company to the Agents as to the matters covered thereby on the date of
such certificate and at each Representation Date subsequent thereto.
SECTION 3. SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPALS.
(a) SOLICITATIONS AS AGENTS. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, the Agents agree, when acting as agents of the Company, to use their
reasonable efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agents will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount or otherwise as agreed to by the Company and the Agents, equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by such Agent as set forth in Schedule A
hereto; provided, however, that the Company shall only be obligated to pay one
such fee with respect to any particular Note so sold.
The purchase price, interest rate, maturity date and other terms of
the Notes shall be agreed upon by the Company and the Agents and set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance by
the Company of an offer for the purchase of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the Notes will be issued in
denominations of $1,000 and integral multiples thereof. All Notes sold through
the Agents as agents will be sold at 100% of their principal amount unless
otherwise agreed to by the Company and the Agents.
(b) PURCHASES AS PRINCIPALS. Each sale of Notes to one or more
Agents as principal shall be made in accordance with the terms contained herein
and, if requested by such Agent, pursuant to a separate agreement which will
provide for the sale of such Notes to, and the purchase and reoffering thereof
by, such Agent or Agents. Each such separate agreement (which may be an oral
agreement) between one or more Agents and the Company, is herein referred to as
a "Terms Agreement". Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to include any Terms
Agreement between the Company and one or more Agents. Each such Terms
Agreement, whether oral or in writing, shall be with
10
respect to such information (as applicable) as is specified in Exhibit A hereto.
An Agent's commitment to purchase Notes as principal pursuant to any Terms
Agreement or otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by each Agent
pursuant thereto, the price to be paid to the Company for such Notes (which, if
not so specified in a Terms Agreement, shall be at a discount equivalent to the
applicable commission set forth in Schedule A hereto), the time and place of
delivery of and payment for such Notes, any provisions relating to rights of,
and default by, purchasers acting together with the Agents in the reoffering of
the Notes, and such other provisions (including further terms of the Notes) as
may be mutually agreed upon. The Agents may utilize a selling or dealer group
in connection with the resale of the Notes purchased. Such Terms Agreement
shall also specify whether or not any of the officer's certificate, opinions of
counsel or comfort letter specified in Sections 7(b), 7(c) and 7(d) hereof shall
be required to be delivered by the Company on the related Settlement Date.
(c) ADMINISTRATIVE PROCEDURES. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time by the
Agents and the Company (the "Procedures"). Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
(d) DELIVERY OF CLOSING DOCUMENTS. The documents required to be
delivered by Section 5 hereof shall be delivered at the office of O'Melveny &
▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on the date
hereof, or at such other time or place as the Agents and the Company may agree.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with the Agents as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will promptly notify (i)
the Agents of the effectiveness of any amendment to the Registration Statement,
(ii) the related Agent or Agents of the transmittal to the Commission for filing
of any supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus (other than any
Current Report on Form 8-K relating exclusively to an offering of debt
securities under the Registration Statement other than the Notes), (iii) the
Agents of the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus, (iv) the Agents of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or for additional information, (v) the Agents of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose; and (vi) any change in the rating assigned by any nationally recognized
statistical rating organization to any debt securities (including the Notes) 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
11
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 make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. Except as otherwise
provided in subsection (1) of this Section, the Company will give the Agents
notice of its intention to file or prepare any additional registration statement
with respect to the registration of additional Notes, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus (other
than an amendment or supplement providing solely for the establishment of or
change in, the interest rates, maturity, price or other terms of Notes or other
similar changes or an amendment or supplement which relates exclusively to an
offering of debt securities under the Registration Statement other than the
Notes) 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 than the Notes), the 1933 Act
or otherwise, and will furnish the Agents 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 in a form to which you or your counsel
shall reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Agents as many signed and 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 by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) (other than an amendment or supplement
which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) as the related Agents shall
reasonably request so long as the Agent is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes. The
Registration Statement and the Prospectus and any amendments or supplements
thereto furnished to the Agents will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare,
with respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the related Agent or Agents and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the Commission on the fifth business day after the date on which
such Pricing Supplement is first used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as
otherwise provided in subsection (1) of this Section, if at any time during the
term of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of counsel to the Agents or
counsel for the Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or
12
if it shall be necessary, in the reasonable opinion of either such counsel, to
amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
immediate notice shall be given, and confirmed in writing, to the Agents to
cease the solicitation of offers to purchase the Notes in the Agents' capacity
as agents and to cease sales of any Notes the Agents may then own as principal
pursuant to a Terms Agreement, and 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, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except
as otherwise provided in subsection (1) of this Section, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall furnish such information to
counsel for the Agents, and shall cause the Registration Statement and the
Prospectus to be amended or supplemented, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, to include or incorporate
by reference financial information with respect thereto and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanation as shall be necessary for an
understanding thereof or as shall be required by the 1933 Act or the 1933 Act
Regulations.
(g) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except
as otherwise provided in subsection (1) of this Section, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) EARNINGS STATEMENTS. The Company, by applying the provisions
of Rule 158 under the 1933 Act, 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 under the 1933 Act) covering each twelve month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(i) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such qualification
in effect for as long as may be required for the distribution of the Notes;
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
13
qualified. The Company will file such statements and reports as may be required
by the laws of each jurisdiction in which the Notes have been qualified as above
provided. The Company will promptly advise the Agents of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(j) 1934 ACT FILINGS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the 1934 Act. Such documents will comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations and to the extent such documents are incorporated by reference in
the Prospectus, when read together with the other information in or incorporated
by reference into the Prospectus, will not contain any untrue statement of a
material fact or omit to state a material fact required to by stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(k) STAND-OFF AGREEMENT. If required by any Terms Agreement,
between the date of any Terms Agreement and the Settlement Date with respect to
such Terms Agreement, the Company will not, without the prior written consent of
each Agent party to such Terms Agreement, directly or indirectly, sell, offer to
sell, contract, to sell or otherwise dispose of, or announce the offering of,
any debt securities of the Company denominated in the same currency as the Notes
to be purchased pursuant to such Terms Agreement, or any security exchangeable
into such debt securities (other than (i) the Notes that are to be sold pursuant
to such Terms Agreement (ii) securities sold in any Euro Asian or Euromarket
financing, or (iii) commercial paper in the ordinary course of business).
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (a), (b), (c), (e), (f),
(g) or (j) of this Section or the provisions of Section 7 hereof during any
period from the time (i) the Agents shall have received written notification
from the Company to suspend solicitation of purchases of the Notes in their
capacity as agents and (ii) the earlier of the date on which no Agent shall then
hold any Notes as principal purchased pursuant to the Terms Agreement and the
date which is thirty days (nine months with respect to subsections (e) and (j)
of this Section) from the date on which the Agents shall have received written
notice from the Company to suspend solicitation of purchases of the Notes, to
the time the Company shall determine that solicitation of purchases of the Notes
should be resumed or shall subsequently enter into a new Terms Agreement with
the Agents.
(m) USE OF PROCEEDS. The net proceeds from the sale of Notes will
be used by the Company as described in the Prospectus.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to solicit offers to purchase the Notes
as agents of the Company, the obligations of any purchasers of the Notes sold
through the Agents as agents, and any obligation of the Agents to purchase Notes
as principals pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties on the part of the Company herein
contained and to the accuracy of the statements of the Company's officers
14
made in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all its covenants and agreements
herein contained and to the following additional conditions precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents and their counsel:
(1) OPINION OF COMPANY COUNSEL. The opinion of the General Counsel
for the Company 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) 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.
(iii) This Agreement and any applicable Terms Agreement have
each been duly authorized by all necessary corporate action on the
part of the Company, and have each been duly executed and delivered by
the Company.
(iv) 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 (1) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) or 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,
(2) requirements that a claim with respect to any Notes payable in
foreign or composite currency (or a foreign or composite currency
judgement in respect of such claim) be converted into U.S. dollars at
a rate of exchange prevailing on a date determined pursuant to
applicable law, and (3) governmental authority to limit, delay or
prohibit the making of payments outside the United States.
(v) The Notes (in the form of specimens certified by the
Company's Secretary and examined by such counsel) are in forms
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 as contemplated by this Agreement. If California
law were to apply, the Notes when completed as contemplated by the
Procedures, executed and authenticated as specified in the
Indenture and delivered
15
against payment of the purchase price therefor pursuant to this
Agreement as provided in the Prospectus and any Terms Agreement, 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 (1) bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) or 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, (2) requirements that a claim with respect to any
Notes payable in foreign or composite currency (or a foreign or
composite currency judgement in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (3) governmental authority to
limit, delay or prohibit the making of payments outside the United
States, and the Notes will be entitled to the benefit of the
Indenture.
(vi) 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.
(vii) At the time the Registration Statement became
effective, the Registration Statement (other than the financial
statements and other financial and statistical data included or
incorporated by reference therein and the Statements of Eligibility on
Form T-1 filed as Exhibits thereto, 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.
(viii) Each document filed pursuant to the 1934 Act (other
than the financial statements and other financial and statistical 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.
(ix) The information in the Prospectus under the caption
"Description of Notes", and "Description of Debt Securities", to the
extent that it constitutes matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, has been reviewed by
him and is correct in all material respects.
(x) No authorization, approval, consent or order of any
court or governmental authority or agency is required in connection
with the sale of the Notes, 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.
16
(xi) 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.
(xii) 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.
(xiii) 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.
(xiv) The execution and delivery of this Agreement, any Terms
Agreement, the Indenture, the Notes and the consummation of the
transactions contemplated herein and therein will not (A) 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, (B) result in any violation of
the provisions of the charter or bylaws of the Company, or (C) to such
counsel's knowledge, results in any violation of any applicable law,
administrative regulation or administrative or court decree.
(xv) 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.
(xvi) To such counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be
17
described or referred to in the Registration Statement or in each
document filed, or to be filed or incorporated by reference as
exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, and the
descriptions thereof are correct in all material respects.
(2) TAX OPINION. The opinion of O'Melveny & ▇▇▇▇▇ LLP, as
special tax counsel to the Company, to the effect that the information
in the Prospectus under the caption "United States Taxation" (or
similar caption), to the extent that it constitutes matters of law,
summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by it and is correct in all material
respects.
(3) OPINION OF COUNSEL TO THE AGENTS. The opinion of
O'Melveny & ▇▇▇▇▇ LLP, counsel to the Agents, covering the matters
referred to in subparagraph (1) under the subheadings (i), (iii)
through (vii), inclusive, of this Section 5(a) and Section 2(a)(xiii),
except that such counsel shall give the opinion in Section 5(a)(iv)
and (v) applying New York law to the Indenture and to the Notes.
(4) In giving their opinions required by subsection (a)(1)
and (a)(3) of this Section, each counsel shall additionally state that
they do not believe that the Registration Statement, at the time it
became effective, and if an amendment to the Registration Statement or
an Annual Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement (an "Incorporated Document") and prior to the date of such
statement, then at the time such amendment became effective or at the
time of the most recent such filing of an Incorporated Document (to
the extent deemed to be incorporated by reference in the Registration
Statement and Prospectus), and, considering the Registration Statement
and Incorporated Document as a whole, at the date hereof, or (if such
opinion is being delivered in connection with a Terms Agreement
pursuant to Section 7(c) hereof) at the date of any Terms Agreement
and at the Settlement Date with respect thereto, as the case may be,
contains or contained an untrue statement of a material fact or omits
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, not misleading or
that the Prospectus, as amended or supplemented at the date hereof, or
(if such opinion is being delivered in connection with a Terms
Agreement pursuant to Section 7(c) hereof) at the date of any Terms
Agreement and at the Settlement Date with respect thereto, as the case
may be, contains or contained an untrue statement of a material fact
or omits 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 other financial and statistical data included
or incorporated by reference in such Registration Statement or
Prospectus.
18
(b) OFFICER'S CERTIFICATE. At the date hereof the Agents shall
have received a certificate of the President or Vice President and the chief
financial or chief accounting officer of the Company, dated as of the date
hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or since
the date of any Terms Agreement, there has not been 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, (ii) the
other representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as through expressly
made at and as of the date of such certificate, (iii) the Company has performed
or complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, 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.
(c) COMFORT LETTER. On the date hereof, the Agents shall have
received a letter from PricewaterhouseCoopers LLP, dated as of the date hereof
and in form and substance previously agreed to by the Company and the Agents.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement
Date with respect to any Terms Agreement, counsel to the Agents shall have been
furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
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
Notes as herein contemplated shall be satisfactory in form and substance to the
Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agents, any Terms Agreement) may be terminated by the Agents by
notice to the Company at any time and any such termination shall be without
liability of any party to any other party, except that the covenant regarding
provision of any earnings statement set forth in Section 4(h) hereof, the
provisions concerning payment of expenses under Section 10 hereof, the indemnity
and contribution agreements set forth in Sections 8 and 9 hereof, the provisions
concerning the representations, warranties and agreements to survive delivery
set forth in Section 11 hereof and the provisions set forth under "Parties" of
Section 15 hereof shall remain in effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE AGENTS.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
the Note to the Company, and, if the Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to the Agent. If such
failure occurred for any reason other than default by the Agent in the
performance of its
19
obligations hereunder, the Company will reimburse such Agent on an equitable
basis for its reasonable loss of the use of the funds for the period such funds
were credited to the Company's account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
acceptance by it of an offer for the purchase of Notes, and each delivery of
Notes to one or more Agents pursuant to a Terms Agreement, shall be deemed to be
an affirmation that the representations and warranties of the Company contained
in this Agreement and in any certificate theretofore delivered to the Agents
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or its agent,
or to the Agent or Agents, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Subject to the provisions
of Section 4(l) hereof, each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of the terms of Notes or a
change in the interest rates, maturity or price of Notes or similar changes, and
other than by an amendment or supplement which relates exclusively to an
offering of debt securities under the Registration Statement other than the
Notes) or there is filed with the Commission any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K
relating exclusively to the issuance of debt securities under the Registration
Statement other than the Notes) or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to one or more Agents pursuant to a Terms
Agreement, the Company shall furnish or cause to be furnished to the Agents
forthwith a certificate dated the date of filing with the Commission of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form reasonably satisfactory to the Agents
to the effect that the statements contained in the certificate referred to in
Section 5(b) hereof which were last furnished to the Agents are true and correct
at the time of such amendment, supplement, filing or sale, as the case may be,
as though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Subject to the
provisions of Section 4(1) hereof, each time that the Registration Statement or
the Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of the terms of Notes or a
change in the interest rates, maturity or price of the Notes or similar changes
or solely for the inclusion of additional financial information, and other than
by an amendment or supplement which relates exclusively to an offering of debt
securities
20
under the Registration Statement other than the Notes) or there is filed with
the Commission any document incorporated by reference into the Prospectus (other
than any Current Report on Form 8-K or Quarterly Report on Form 10-Q, unless the
Agents shall reasonably request based on disclosure included or omitted from
such Report) or (if required pursuant to the terms of a Terms Agreement) the
Company sells Notes to one or more Agents pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to the Agents and to
counsel to the Agents a written opinion of each of the counsel designated in
Section 5(a)(1) and (2), or other counsel satisfactory to the Agents dated the
date of filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form reasonably satisfactory to the Agents, of substantially the same tenor
as the opinions referred to in Sections 5(a)(1) and (2) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinions; or, in lieu of such
opinions, counsel last furnishing such opinion to the Agents shall furnish the
Agents with a letter substantially to the effect that the Agents may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Subject to the
provisions of Section 4(1) hereof, each time that the Registration Statement or
the Prospectus shall be amended or supplemented to include additional financial
information or there is filed with the Commission any document incorporated by
reference into the Prospectus which contains additional financial information or
(if required pursuant to the terms of a Terms Agreement) the Company sells Notes
to one or more Agents pursuant to a Terms Agreement, the Company shall cause
Price Waterhouse, or other independent certified public accountants reasonably
satisfactory to the Agents, forthwith to furnish the Agents with a letter, dated
the date of filing with the Commission of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form reasonably satisfactory to the Agents, of substantially the same
tenor as the letter referred to in Section 5(c) hereof but modified to relate to
the Registration Statement and Prospectus, as amended and supplemented to the
date of such letter, and with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, PricewaterhouseCoopers
LLP, or other independent certified public accountants reasonably satisfactory
to the Agents, may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical nature is of such a
nature that, in the reasonable judgment of the Agents, such letter should cover
such other information.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify
severally and hold harmless each Agent and each person, if any, who controls
each Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
21
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment or supplement thereto), the
omission or alleged omission therefrom of a material fact 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, or and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or 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
an Agent to the extent authorized in Section 8(c)), reasonably
incurred in investigating, preparing or defending against any
litigation, or 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 the
Agents expressly for use in the Registration Statement or Prospectus (or any
amendments or supplements thereto), and provided further, however, that the
indemnity agreement contained in this subsection 8(a) shall not inure to the
benefit of any Agent with respect to any loss, liability, claim, damage or
expense arising from the sale of Notes by such Agent to any person if all of the
following occur: (x) such Agent has failed to send or give a copy of the
Prospectus (excluding documents incorporated by reference), as it may then have
been amended or supplemented, to that person at or prior to the time of written
confirmation of such sale; (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 the Prospectus was corrected in the Prospectus, as then amended
or supplemented; and (z) such Agent 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 supplement, to such Agent.
(b) INDEMNIFICATION OF COMPANY. Each Agent, 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,
22
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment or supplement thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use in the Registration Statement (or any amendment or supplement
thereto) or the Prospectus (or any amendment or supplement thereto).
(c) GENERAL. Each indemnified party shall give prompt 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 disbursements 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 expenses
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 the 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.
(d) FOREIGN CURRENCY JUDGMENTS. The Company agrees to indemnify
the Agents against any loss incurred by the Agents as a result of any judgment
or order being given or made for the amount due under this Agreement and such
judgment or order being paid in a currency (a "Judgment Currency") other than
U.S. dollars as a result of any variation between (i) the rate of exchange at
which U.S. dollars are converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the rate of exchange at which the applicable
Agent is able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by such Agent. The foregoing indemnity shall constitute a
separate and independent obligation of the Company and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs of exchange payable
in connection with the purchase of, or conversion into, the relevant currency.
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 8 or Section 9 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);
23
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.
SECTION 9. CONTRIBUTION.
If the indemnity agreement provided for in Section 8 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 Agents shall contribute to the aggregate losses, liabilities
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent pursuant to this Agreement to the date of such liability bears to the
total sales price from the sale of Notes sold to or through such Agent 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 Agent(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 Agent(s), on the other hand in connection with the
offering of the Notes that were the subject of the claim for indemnification.
The relative benefits received by the Company on the one hand and the Agent(s)
on the other shall be deemed to be in the same respective proportions as the
total proceeds from the sale of such Notes (before deducting expenses) received
by the Company bears to the total discount or commission received by the
applicable Agent(s) in respect thereof. The relative fault of the Company, on
the one hand, and the applicable Agent(s), 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 Agent(s) and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the applicable Agent(s) were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency
24
or body, commenced or threatened, or any claim whatsoever based upon any
applicable untrue or alleged untrue statement or omission or alleged omission
(covered by Section 8(a) hereof).
Notwithstanding the provisions of this Section 9, (i) no Agent shall
be required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) 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. In addition, in connection with an offering of Notes
purchased from the Company by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Company.
For purposes of this Section 9, each person, if any, who controls an
Agent 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 Agent, 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.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and
the Prospectus, and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry
notes;
(d) The reasonable fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel and of any
Calculation Agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including
filing fees, and the reasonable fees and disbursements of counsel to
the Agents in connection therewith and in connection with the
preparation of any Blue Sky Survey;
25
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement, and any
amendments thereto, and of the Prospectus, and any amendments or
supplements thereto;
(h) The preparation, printing, reproducing and delivery to the
Agents of copies of the Indenture and all supplements and amendments
thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of such expense by the Company;
(l) The cost of preparing, and providing any CUSIP or other
identification numbers for, the Notes; and
(m) The fees and expenses of any Depository (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties, indemnities and agreements contained
in this Agreement or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of the Agents, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
Terms Agreement) may be terminated for any reason, at any time by either the
Company or the Agents on the giving of 30 days' written notice of such
termination to the other party hereto; provided, however, that the termination
of this Agreement by an Agent shall terminate this Agreement only between such
Agent and the Company and the Company's notice of termination as to any one
Agent shall terminate this Agreement only between itself and such Agent.
(b) TERMINATION OF A TERMS AGREEMENT. The Agent or Agents party to
a Terms Agreement may terminate any Terms Agreement, immediately upon notice to
the Company, at any time prior to the Settlement Date relating thereto (i) if
there has been, since the date of such Terms 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 Agent or Agents party to such Terms Agreement (after
consultation
26
with the Company), impracticable to market the Notes subject to such Terms
Agreement or enforce contracts for the sale of such Notes, or (iii) 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 shall have 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 shall have been declared by federal, California or New York
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes subject to such Terms Agreement are denominated or
payable, or (iv) if the rating assigned by any nationally recognized securities
rating agency to any debt securities of the Company as of the date of any Terms
Agreement shall have been lowered since that date or if any such rating agency
shall have publicly announced since that date that it has placed any debt
securities of the Company on what is commonly termed a "watch list" for possible
downgrading, or (v) if there shall have come to the Agent's or Agents' attention
any facts that would cause such Agent or Agents to believe that the Prospectus,
at the time it was required to be delivered to a purchaser of Notes subject to
such Terms Agreement, 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 existing at the time of such
delivery, not misleading.
(c) GENERAL. In the event of any such termination, no party will
have any liability to any other party hereto, except that (i) each Agent shall
be entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof to the extent permitted by Section 1(c), (ii) if at the time
of termination (a) the Agents shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (b) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or its agent of the Note or Notes relating thereto has not occurred,
the obligations set forth in Section 5 hereof and the covenants set forth in
Sections 4 and 7 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be (provided, however, that, except as provided in
clause (iii) below, the Company's obligations pursuant to Sections 4 and 7
hereof shall in any event terminate no later than the date that is thirty days
(nine months with respect to subsections (e) and (j) of Section 4 hereof) after
the time of such termination), and (iii) the covenant set forth in Section 4(h)
hereof, the indemnity and contribution agreements set forth in Sections 8 and 9
hereof, and the provisions of Sections 10, 11 and 15 hereof shall remain in
effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, by telecopier or by telegram, and any such notice shall be effective
when received at the address specified below.
If to the Company:
Toyota Motor Credit Corporation
27
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Assistant Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇ ▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
North Tower, 23rd Floor
World Financial Center
New York, New York 10281-1323
Attention: MTN Products Management
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lehman:
▇▇▇▇▇▇ Brothers Inc.
3 World Financial Center
12th Floor
New York, New York 10285
Attention: Medium-Term Note Product
Management
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Goldman:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Credit Department/Credit Control-Medium Term Notes
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to ▇.▇. ▇▇▇▇▇▇:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transaction Execution Group, 13th Floor
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇:
28
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, New York 10036
Attention: Manager - Continuously Offered Products
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Investment Banking Information Center
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to SSB:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Seven World Trade Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10048
Attention: Medium Term Notes
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW.
This Agreement and all the rights and obligations of the parties 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 such State.
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents 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 parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 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 parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be
a successor by reason merely of such purchase.
SECTION 16. COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original hereof.
SECTION 17. CAPTIONS.
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms or the provisions hereof.
29
If the foregoing is in accordance with the Agents' 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 Agents and the Company in accordance with its terms.
30
Very truly yours,
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
and General Manager
31
Accepted:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Authorized Signatory
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
--------------------------------
Authorized Signatory
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Authorized Signatory
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Authorized Signatory
32
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Authorized Signatory
33
Exhibit A
The following terms, if applicable, shall be agreed to by the Agents
and the Company pursuant to each Terms Agreement:
Principal Amount: $__________
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: ____%
Agent's Discount or Commission:
Settlement Date and Time:
Additional Terms:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
Day Count Convention:
[ ] 30/360 for the period from ______ to ______.
[ ] Actual/360 for the period from ______ to ______.
[ ] Actual/Actual for the period from ______ to ______.
If Floating Rate Note:
Interest Calculation:
[ ] Regular Floating Rate Note
[ ] Floating Rate/Fixed Rate Note Fixed Rate Commencement
Date:
Fixed Interest Rate:
[ ] Inverse Floating Rate Note
Fixed Interest Rate:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Regular Record Dates:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
Day Count Convention:
[ ] Actual/360 for the period from ______ to ______.
[ ] Actual/Actual for the period from ______ to ______.
[ ] Other:
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If Redeemable:
Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage
Reduction:
If Repayable:
Optional Repayment Dates:
Repayment Price:
Currency:
Specified Currency (if other than U.S. dollars)
Minimum Denominations:
Also, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution Agreement.
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SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall pay
the related Agent, on a discount basis, a commission for the sale of each Note
by such Agent equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 year .175%
From 2 years to less than 3 year .200%
From 3 years to less than 4 year .275%
From 4 years to less than 5 year .325%
From 5 years to less than 6 year .375%
From 6 years to less than 7 year .425%
From 7 years to less than 10 year .500%
From 10 years to less than 15 year .625%
From 15 years to less than 20 year .700%
From 20 years to 30 years .750%
*more than 30 years
*To be negotiated at time of sale between the related Agent and the Company
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