Japanese Yen ("(Y)") 50,000,000,000
TOYOTA MOTOR CREDIT CORPORATION
(a California corporation)
.625% Notes due 2003
PURCHASE AGREEMENT
May 11, 2000
SALOMON BROTHERS INTERNATIONAL LIMITED
NOMURA INTERNATIONAL PLC
DEUTSCHE BANK AG LONDON
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
KOKUSAI EUROPE LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
TOKYO-MITSUBISHI INTERNATIONAL PLC
UBS AG, ACTING THROUGH ITS FINANCIAL SERVICES
GROUP UBS WARBURG
c/o SALOMON BROTHERS INTERNATIONAL LIMITED
Victoria Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ England
as Representative of the Underwriters
Ladies and Gentlemen:
Toyota Motor Credit Corporation, a California corporation (the
"Company"), confirms its agreement with Salomon Brothers International Limited
("▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇"), Nomura International plc, Deutsche Bank AG London,
▇▇▇▇▇▇▇ ▇▇▇▇▇ International, Kokusai Europe Limited, ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, Tokyo-Mitsubishi International plc and UBS AG acting through its
financial services group UBS Warburg (collectively, the "Underwriters," which
term shall also include any underwriter substituted as hereinafter provided in
Section 11 hereof), for which ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ is acting as representative
with respect to the sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of the respective principal amounts set forth
in Schedule A attached hereto of (Y)50,000,000,000 aggregate principal amount of
the Company's .625% Notes due 2003 (the "Securities"). The Company is a wholly
owned subsidiary of Toyota Motor Sales, U.S.A., Inc. ("TMS"), which is a wholly
owned subsidiary of
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Toyota Motor Corporation. The Securities are to be issued pursuant to an
indenture dated as of August 1, 1991, as amended by the First Supplemental
Indenture, dated as of October 1, 1991 (collectively, the "Indenture") among the
Company, The Chase Manhattan Bank, as trustee (the "Trustee") and Bankers Trust
Company.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (No. 333-89659) covering
registration of debt securities, including the Securities, under the Securities
Act of 1933, as amended (the "1933 Act"), which registration statement has been
declared effective by the Commission and copies of which have heretofore been
delivered to you. The Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Such Registration Statement, in the form
in which it was declared effective, including any amendments or supplements
thereto in the form such amendments or supplements became effective, and any
documents incorporated by reference therein through the date hereof, and at the
Closing Time (as defined in Section 2(b)), is hereinafter referred to as the
"Registration Statement." The Company proposes to file with the Commission
pursuant to paragraph (b) of Rule 424 ("Rule 424(b)") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations") a
prospectus supplement (the "Prospectus Supplement"), dated the date hereof, and
a prospectus (the "Base Prospectus"), dated January 12, 2000, each relating to
the Securities and the distribution thereof and has previously advised you of
all further information (financial and other) with respect to the Company set
forth therein. The Base Prospectus, as supplemented by the Prospectus
Supplement, together in the form in which they are filed with the Commission
pursuant to Rule 424(b) and including all documents incorporated or deemed to be
incorporated by reference therein, are hereinafter referred to as the
"Prospectus," except that if any revised prospectus shall be provided to the
Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus filed with the Commission pursuant
to Rule 424(b) (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b)), the term "Prospectus" shall refer to
such revised prospectus from and after the time it is first provided to the
Underwriters for such use. As used herein, the term "Prospectus Supplement"
shall refer to the Prospectus Supplement dated May 11, 2000 used with respect to
the Securities. Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include any Rule 462(b) Registration Statement. For purposes of this Agreement,
all references to the Registration Statement, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the
2
Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Registration Statement or the Prospectus, as the case may be.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Underwriter as of the
date hereof that:
(i) The Company meets the requirements for use of Form S-3 under
the 1933 Act. At the time the Registration Statement became effective,
the Registration Statement complied and at the Closing Time, the
Registration Statement will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act, and the rules and regulations of the Commission promulgated
thereunder (the "1939 Act Regulations") and no stop order suspending
the effectiveness of the Registration Statement (including any Rule
462(b) Registration Statement) has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with. The Registration
Statement (including any Rule 462(b) Registration Statement) at the
time it became effective, did not, and each time thereafter at which
any amendment to the Registration Statement (including any Rule 462(b)
Registration Statement) becomes effective and as of the Closing Time,
will not, considering the Registration Statement and all Incorporated
Documents (as defined in Section 5(b)(3)) considered as a whole,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as of the date
hereof does not, and at the Closing Time, will not, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided
however, that the representations and warranties in this subsection
shall not apply to that part of the Registration Statement which shall
constitute the Statements of Eligibility under the 1939 Act on Form
T-1 of the Trustee or Bankers Trust Company, as the case may be, or
apply to statements or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ expressly for use in the Registration Statement or
Prospectus. Each Prospectus delivered to the Underwriters for use in
connection with this offering will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
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(ii) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iii) The financial statements and any supporting schedules of
the Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the
consolidated results of their operations for the periods specified;
and, except as stated therein, said financial statements have been
prepared in conformity with generally accepted accounting principles
in the United States applied on a consistent basis; and any supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated
therein.
(iv) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into
by the Company or any of its subsidiaries, other than those in the
ordinary course of business (which includes, but is not limited to,
Euromarket, Euro Asian or global financings and domestic private
placement and public financing), which are material with respect to
the Company and its subsidiaries considered as one enterprise, and (C)
since the date of the most recent audited financial statements of the
Company, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock except as otherwise disclosed in the documentation relating to
the Securities.
(v) The Company (A) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of California with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, (B) has the requisite corporate power and authority to
execute and deliver this Agreement, the Indenture and the Securities
and to perform its obligations hereunder and thereunder, (C) has duly
authorized, executed and delivered this Agreement and this Agreement
constitutes the valid and binding agreement of the Company, and (D) is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification and in which the failure to do so would materially
adversely affect the business or financial condition of the Company.
(vi) Each "significant subsidiary", if any, of the Company (as
such term is defined in Rule 1-02 of Regulation S-X under the 1933
Act) (each a "Subsidiary" and, collectively, the "Subsidiaries") has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
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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.
(vii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and assuming it has been duly
and validly authorized, executed and delivered by the Trustee,
constitutes a legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) and by the
application of general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a proceeding
in equity or at law.
(viii) The Securities have been duly and validly authorized by
the Company for issuance, offer and sale pursuant to this Agreement
and, when executed, authenticated and delivered pursuant to the
provisions of the Indenture and this Agreement against payment of the
consideration set forth herein and in the Prospectus, will constitute
legally valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by the application of
general principles of equity , including without limitation, the
concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or
at law; and the Securities will be entitled to the benefits of the
Indenture; and the Securities and the Indenture conform in all
material respects to all statements relating thereto contained in the
Registration Statement and the Prospectus.
(ix) Neither the Company nor any of its Subsidiaries is in
violation of its charter or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its
Subsidiaries is a party or by which it may be bound, or to which any
of the property or assets of the Company or any of its Subsidiaries is
subject, which violation or default
5
would materially adversely affect the business or financial condition
of the Company and its Subsidiaries considered as one enterprise; and
the execution, delivery and performance of this Agreement and the
Indenture and the consummation of the transactions contemplated herein
and therein will not conflict with, or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its Subsidiaries pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its Subsidiaries is a party or by which it may be
bound, or to which any of the property or assets of the Company or any
of its Subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or
any of its Subsidiaries or, to the best knowledge of the Company and
any of its Subsidiaries, any law, administrative regulation or
administrative or court decree, and no consent, approval,
authorization, order or decree of any court or governmental agency or
body of the United States is required for the consummation by the
Company of the transactions contemplated by this Agreement or the
Indenture, except such as may be required under the 1933 Act or the
1933 Act Regulations or the 1939 Act or the 1939 Act Regulations or as
may be required by state securities or Blue Sky laws.
(x) Except as set forth in the Registration Statement, there is
no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company, threatened, against the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement or which might in the opinion of the Company result in any
material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, or which might
materially and adversely affect the properties or assets thereof or
which might materially and adversely affect the consummation of this
Agreement; all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described
in the Registration Statement, including ordinary routine litigation
incidental to its business, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company or
any of its subsidiaries which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xi) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently
conducted where its ownership or lease of substantial properties or
the conduct of its business requires such ownership or possession or
the obtaining of such governmental licenses, permits, consents,
orders, approvals and other authorizations and where the failure to do
so would materially adversely affect the business or financial
condition of the Company and its subsidiaries considered as one
enterprise.
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(xii) The documents incorporated by reference in the Prospectus,
at the time they were filed with the Commission, complied in all
material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission promulgated thereunder (the "1934
Act Regulations"), and, when read together with the other information
in or incorporated by reference in the Prospectus, did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(xiii) The Company is not, and upon issuance and sale of the
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xiv) The Securities, upon issuance, will be excluded or exempted
under, or beyond the purview of, the Commodity Exchange Act, as
amended, and the rules and regulations of the Commodity Futures
Trading Commission under the Commodity Exchange Act.
(b) Any certificate delivered pursuant to this Agreement or the
transactions contemplated hereby and signed by any director or officer of the
Company and delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matter covered thereby on the date of such certificate.
(c) Each Underwriter severally represents and agrees to the following
selling restrictions with respect to the Securities:
(i) No action has been or will be taken by the Underwriters
that would permit a public offering of the Securities
or possession or distribution of the Prospectus or any
offering material in relation to the Securities in any
jurisdiction where action by the Company for that
purpose is required unless the Company has agreed to
such actions and such actions have been taken;
(ii) it will comply with all applicable laws and regulations
known by it, or that should have reasonably been known
by it, in each jurisdiction in which it purchases,
offers or sells the Securities or possesses or
distributes the Prospectus or any other offering
material and will obtain any consent, approval or
permission required by it for the purchase, offer or
sale by it of the Securities under the laws and
regulations in force in any jurisdiction to which
7
it is subject or in which it makes such purchases,
offers or sales and the Company shall have no
responsibility therefor;
(iii) it will not offer, sell or deliver any of the
Securities or distribute any such offering material in
or from any jurisdiction except under circumstances
which will result in compliance with applicable laws
and regulations and which will not impose any
obligation on the Company or the Underwriters;
(iv) no Underwriter is authorized to give any information or
make any representations in relation to the Securities
other than those contained in the Prospectus and such
additional information, if any, as the Company shall,
in writing, provide to and authorize the Underwriter so
to use and distribute to actual and potential
purchasers of Securities. Each Underwriter agrees that
unless prohibited by applicable law, it will make
available upon the request of each person to whom it
offers or sells the Securities a copy of the Prospectus
for the Securities;
(v) it has not offered or sold and, prior to the expiry of
the period of six months from the issue date of the
Securities, will not offer or sell any Securities to
persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or
agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of
Securities Regulations 1995, as amended;
(vi) it has only issued or passed on and will only issue or
pass on in the United Kingdom any document received by
it in connection with the issue of the Securities to a
person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996, as amended, or
is a person to whom such document may otherwise
lawfully be issued or passed on;
(vii) it has complied and will comply with all applicable
provisions of the FSA with respect to anything done by
it in relation to any Securities in, from or otherwise
involving the United Kingdom; and
(viii) the Securities have not been and will not be
registered under the Securities and Exchange Law of
Japan (the "Securities and Exchange Law"). Each
Underwriter severally agrees that it will
8
not offer or sell any Securities, directly or
indirectly, in Japan or to, or for the benefit of, any
resident of Japan (which term as used herein means any
person resident in Japan, including any corporation or
other entity organized under the laws of Japan) or to
others for re-offering or resale, directly or
indirectly, in Japan or to a resident of Japan, except
pursuant to an exemption from the registration
requirements of, and otherwise in compliance with, the
Securities and Exchange Law and any other applicable
laws, regulations and ministerial guidelines of Japan.
2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the aggregate amount of Securities set forth
in Schedule A opposite the name of such Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
(b) Payment of the purchase price for, and delivery of the certificates
for, the Securities shall be made at the offices of O'Melveny & ▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other place as shall
be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and the Company, at 7:00 a.m., Los
Angeles time, on May 23, 2000 (unless postponed in accordance with Section 11
hereof), or such other time not later than ten business days after such date as
shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and the Company (such time and date
of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. Certificates for the
Securities shall be in such denominations ((Y)1,000,000 or integral multiples
thereof) and registered in such names as the Underwriters may request in writing
at least two business days before Closing Time. It is understood that each
Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, for their respective accounts,
to accept delivery of, receipt for, and make payment of the purchase price for,
the Securities it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, individually and
not as representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by Closing Time, but such payment
shall not relieve such Underwriter from its obligations hereunder. The
certificates for the Securities will be made available for examination and
packaging by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ not later than 10:00 a.m. on the last business
day prior to Closing Time at the offices of The Chase Manhattan Bank.
9
3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) The Company, subject to Section 3(b), will comply with the
requirements of Rule 424(b), as applicable, and will promptly notify
the Underwriters and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending
the use of any Prospectus, or of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, or of the
initiation of any proceedings for any of such purposes; and (v) any
change in the rating assigned by any nationally recognized statistical
rating organization to any debt securities (including the Securities)
of the Company, or the public announcement by any nationally
recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its
rating of any such debt securities, or the withdrawal by any
nationally recognized statistical rating organization of its rating of
any such debt securities since the date of this Agreement. The Company
will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Company
will make every reasonable effort to prevent the issuance of any such
stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) The Company will give the Underwriters notice of its
intention to file or prepare any additional registration statement
with respect to the registration of additional Securities, any
amendment to the Registration Statement (including any filing under
Rule 462(b)) or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it
became effective or to the Prospectus (other than an amendment or
supplement providing solely for the establishment of or change in, the
interest rates, maturities, price or other terms of the Securities or
similar changes or an amendment or supplement which relates
exclusively to an offering of debt securities under the Registration
Statement other than the Securities), whether by the filing of
documents pursuant to the 1934 Act (other than any Current Report on
Form 8-K relating exclusively to the issuance of debt securities under
the Registration Statement other then the Securities), the 1933 Act,
or otherwise and will furnish the Underwriters with copies of any such
amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or
preparation, as the case may be, and will not file any such amendment
or supplement or use any such prospectus to which the Underwriters or
counsel for the Underwriters shall reasonably object.
10
(c) The Company has delivered or will deliver to the Underwriters
as many conformed copies of the Registration Statement (as originally
filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) as the
Underwriters may reasonably request. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) The Company has delivered and will deliver to each
Underwriter, from time to time during the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as
such Underwriter may reasonably request for the purposes contemplated
by the 1933 Act or the 1934 Act or the respective applicable rules and
regulations of the Commission thereunder. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters shall
be identical to the electronically transmitted copies of thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
(e) If any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriters
or counsel for the Company, to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is required to be delivered to a
purchaser, or if it shall be necessary in the reasonable opinion of
either such counsel, to amend or supplement the Registration Statement
or Prospectus in order to comply with the requirements of the 1933 Act
or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission such amendment or supplement, whether by
filing documents pursuant to the 1934 Act, the 1933 Act or otherwise
so as maybe necessary to correct such untrue statement or omission,
and the Company will furnish to the Underwriters a reasonable number
of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions
of the United States as the Underwriters may designate; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. In each
jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required by
the laws of such jurisdiction to continue such qualifications in
effect for a period of not less than one year from the effective date
of this Agreement. The Company will promptly advise the Underwriters
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
11
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective date"
(as defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under
the caption "Use of Proceeds."
(i) Immediately following the execution of this Agreement, the
Company will prepare, and file or transmit for filing with the
Commission in accordance with Rule 424(b), copies of a Prospectus
containing the terms of the Securities and such other information as
the Underwriters and the Company deem appropriate.
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file
all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the 1934 Act within the time periods required
by the 1934 Act and the 1934 Act Regulations.
(k) From the date of this Agreement until Closing Time, the
Company will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, directly or indirectly, sell, offer to sell, contract to sell,
or otherwise dispose of, or announce the offering of, any debt
securities denominated in Japanese Yen, or any security exchangeable
into such debt securities, or indexed to Japanese Yen.
(l) The Company shall use its best efforts to obtain approval for
the listing of the Securities on the Luxembourg Stock Exchange by the
Closing Time or as soon thereafter as practicable.
4. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (a) the
preparing, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (b) the printing and delivery of this Agreement, the Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (c) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, (d) the fees and disbursements of the
Company's counsel and accountants, (e) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof (not to
exceed $5,000), including filing fees and the fee and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (f) the printing
and delivery to the Underwriters of the Prospectus and any amendments or
supplements thereto, (g) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (h)
fees and expenses of the Trustee and any paying agents, including fees and
disbursements of
12
counsel for the Trustee in connection with the Securities, and (h) any fees of
▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Ratings Group, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 5 or Section 10(a)(i) hereof, the Company shall, as
previously agreed, reimburse the Underwriters for their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the Company contained in Section 1 hereof or in certificates of
any officer of Company delivered pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at Closing Time no
stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Underwriters. A prospectus
shall have been filed with the Commission in accordance with Rule
424(b).
(b) At Closing Time, the Underwriters shall have received:
(i) The opinion, dated as of Closing Time, of ▇▇▇▇ ▇▇▇▇▇,
Esq., General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(A) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of California.
(B) The Company has corporate power and corporate
authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and in each document filed pursuant to the 1934
Act and incorporated by reference into the Prospectus.
(C) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company, and
has been duly executed and delivered by the Company.
(D) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company and
has been duly executed and delivered by the Company and the
Indenture has been qualified under the 1939 Act. If
California law were to apply, the Indenture would constitute
a legally valid and binding obligation of the Company,
enforceable against the Company in
13
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws)
and by the application of general principles of equity
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity
or at law.
(E) The Securities (in the form of specimen certified
by the Company's Secretary and examined by such counsel) are
in a form permitted by the Indenture, and have been duly
authorized by all necessary corporate action on the part of
the Company for issuance, offer and sale to the Underwriters
as contemplated by this Agreement and as provided for in the
Prospectus. If California law were to apply, the Securities
when executed and authenticated as specified in the
Indenture and delivered against payment of the purchase
price therefor pursuant to this Agreement, would constitute
legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by the application of
general principles of equity including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether
considered in a proceeding in equity or at law; and the
Securities will be entitled to the benefits of the
Indenture.
(F) To such counsel's knowledge, the Company is duly
qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which its
ownership or lease of substantial properties or the conduct
of its business requires such qualification and in which the
failure to so qualify and be in good standing would
materially adversely affect its business or financial
condition.
(G) The Registration Statement has been declared
effective under the 1933 Act and, to his knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(H) At the time the Registration Statement became
effective, the Registration Statement (other than the
financial statements and supporting schedules and other
financial, statistical and accounting data included or
incorporated by reference and the Statements of Eligibility
on Form T-1 filed as exhibits therein, as to which no
opinion need be rendered) appeared on its face to comply as
to form in all material respects with the requirements of
the 1933
14
Act and the 1933 Act Regulations and the 1939 Act and the
1939 Act Regulations.
(I) The information in the Prospectus under the
captions "Description of the Notes" and "Description of Debt
Securities" to the extent that it constitutes matters of
law, summaries of legal matters, documents or proceedings,
or legal conclusions, has been reviewed by him and is
correct in all material respects.
(J) No authorization, approval, consent or order of any
court or governmental authority or agency is required in
connection with the sale of the Securities to the
Underwriters, except such as may be required under the 1933
Act or the 1933 Act Regulations or the 1939 Act or the 1939
Act Regulations or state securities laws.
(K) Each document filed pursuant to the 1934 Act (other
than the financial statements and supporting schedules and
other financial, statistical and accounting data included
therein, as to which no opinion need be rendered) and
incorporated by reference in the Prospectus when filed,
appeared on its face to comply as to form in all material
respects with the 1934 Act and the 1934 Act Regulations
thereunder in effect at the date of their filing.
(L) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement or in
each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus, other than
those disclosed therein, and all pending legal or
governmental proceedings to which the Company or any of its
Subsidiaries is a party or to which any of their property is
subject which are not described in the Registration
Statement or in each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(M) To such counsel's knowledge, no default exists in
the due performance or observance by the Company of any
obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note,
lease or other instrument described or referred to in the
Registration Statement or filed as an exhibit thereto or
incorporated by reference therein, which default would have
a material adverse effect on the financial condition,
earnings, business affairs, business prospects, properties
or results of operations of the Company and its subsidiaries
considered as one enterprise.
(N) The execution and delivery of this Agreement, the
Indenture, the Securities and the consummation of the
transactions contemplated herein and therein will not (x)
conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge
or encumbrance
15
upon any property or assets of the Company or any of its
subsidiaries pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument
known to such counsel to which the Company or any of its
subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (y) result in
any violation of the provisions of the charter or bylaws of
the Company, or (z) to such counsel's knowledge, result in
any violation of any applicable law, administrative
regulation or administrative or court decree.
(O) The shares of issued and outstanding Common Stock
of the Company have been duly authorized and validly issued
and are fully paid and non-assessable.
(P) To such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or
referred to in the Registration Statement or in each
document filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus, or to be filed as exhibits
thereto other than those described or referred to therein or
filed as exhibits thereto, and the descriptions thereof are
correct in all material respects.
Additionally such counsel shall state that he does not believe that the
Registration Statement and each document filed pursuant to the 1934 Act and
incorporated by reference therein (each, an "Incorporated Document") considered
as a whole as of the time the Registration Statement became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, not
misleading, or that the Prospectus and the Incorporated Documents, considered as
a whole, as of the date of the Prospectus Supplement and at the Closing Time,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel may state
that they express no view as to the Statements of Eligibility on Form T-1,
financial statements and supporting schedules and other financial, statistical
and accounting data included or incorporated by reference in such Registration
Statement or Prospectus.
(ii) The opinion, dated as of Closing Time, of O'Melveny &
▇▇▇▇▇ LLP, counsel for the Underwriters, to the effect that:
(A) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of California.
(B) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company, and
has been duly executed and delivered by the Company.
(C) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company and
has been duly executed and
16
delivered by the Company and the Indenture has been
qualified by the 1939 Act. Assuming the due authorization,
execution and delivery thereof by the Trustee, the Indenture
constitutes a legally valid and binding obligation of the
Company, enforceable against the Company in accordance with
its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by the
application of general principles of equity including,
without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability
of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law.
(D) The Securities (in the form of specimen certified
by the Company's Secretary and examined by such counsel) are
in a form permitted by the Indenture, have been duly
authorized by all necessary corporate action on the part of
the Company for issuance, offer and sale to the Underwriters
as contemplated by this Agreement, when executed and
authenticated as specified in the Indenture and delivered
against payment of the purchase price therefor pursuant to
this Agreement and as provided for in the Prospectus, will
constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by the
application of general principles of equity including,
without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability
of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law; and
the Securities will be entitled to the benefits of the
Indenture.
(E) The Registration Statement has been declared
effective under the 1933 Act and, to their knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(F) At the Closing Time, the Registration Statement
(other than the financial statements and supporting
schedules and other financial and statistical data included
therein, as to which no opinion need be rendered) appeared
on its face to comply as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the 1939 Act Regulations.
(G) The Company is not an "investment company" as such
term is defined in the 1940 Act.
Additionally, such counsel shall state, based upon its
review and participation in conferences with officers and other
representatives of the Company and representatives of
17
the Company's independent public accountants at which the
Registration Statement and the Prospectus were discussed, no
facts have come to their attention that has caused them to
believe that the Registration Statement and the Incorporated
Documents, considered as a whole as of the time the Registration
Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, not
misleading, or that the Prospectus and the Incorporated
Documents, considered as whole, as of the date of the Prospectus
Supplement and at the Closing Time, contained an untrue statement
of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
counsel may state that they make no statement as to Statements of
Eligibility on Form T-1, the financial statements and supporting
schedules and other financial, statistical and accounting data
contained or incorporated by reference therein.
(iii) The favorable opinion of O'Melveny & ▇▇▇▇▇ LLP,
special tax counsel for the Underwriters, dated the Closing
Time, to the effect that for federal income tax purposes,
the statements in the Prospectus under the headings
"Description of the Notes -----Redemption for Tax Reasons"
and "United States Federal Taxation," to the extent such
matters constitute matters of law or legal conclusion with
respect thereto are correct in all material respects.
(c) At Closing Time there shall not have been, since the
date hereof or since the respective dates as of which information
is given in the Registration Statement or the Prospectus, any
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and
the Underwriters shall have received a certificate of the
President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties
in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii)
the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior
to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and
to their knowledge, no proceedings for that purpose have been
initiated or threatened by the Commission.
(d) At the time of execution of this Agreement, the Underwriters
shall have received from PricewaterhouseCoopers LLP a letter dated
such date, in form and substance satisfactory to the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
other information contained in the Registration Statement and the
Prospectus.
18
(e) At Closing Time, the Underwriters shall have received from
PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (f) of this Section, except that the date
referred to shall be a date not more than three business days prior to
Closing Time.
(f) At Closing Time, the Company's long term debt shall be rated
at least Aa1 by ▇▇▇▇▇'▇ Investor's Service, Inc. and AAA by Standard &
Poor's Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
and since the date of this Agreement, there shall not have occurred a
downgrading in the ratings assigned to the Company's long term debt by
any "nationally recognized statistical rating agency", as that term is
defined by the Commission for the purposes of Rule 436(g)(2) under the
1933 Act, and no such organization shall have publicly announced that
it has under surveillance or review its ratings of the long term debt
of the Company.
(g) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(h) At Closing Time, the Company shall have caused to be made an
application for the listing of the Securities on the Luxembourg Stock
Exchange.
(i) At Closing Time, all consents of the Ministry of Finance of
Japan (the "MOF"), if any, required for the Company to issue the
Securities shall have been obtained. After the Closing Time, the
Company shall cause to be made all filings required by the MOF in
connection with the Securities.
(j) If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, this Agreement
may be terminated by the Underwriters by notice to the Company at any
time at or prior to Closing Time, and such termination shall be
without liability of any party to any other party except as provided
in Section 4 hereof.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
19
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all reasonable expenses whatsoever, as
incurred (including the reasonable fees and disbursements of counsel
chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ to the extent authorized in Section
6(c)) reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto), or the Prospectus (or any amendments or
supplements thereto), and provided further, however, that the indemnity
agreement contained in this Section 6(a) shall not inure to the benefit of any
Underwriter with respect to any loss, liability, claim, damage or expense
arising from the sale of Securities by such Underwriter to any person if all of
the following occur: (x) such Underwriter has failed to send or give a copy of
the Prospectus (excluding documents incorporated by reference therein), as it
may then have been amended or supplemented, to that person at or prior to the
time of written confirmation of such sale to the extent necessary in accordance
with applicable law; (y) the untrue statement or alleged untrue statement of a
material fact in or omission or alleged omission of a material fact from a
previous form of Prospectus was corrected in the Prospectus, as then amended or
supplemented; and (z) such Underwriter shall have been notified as to such
amendment or supplement as set forth herein and the Company shall have delivered
copies of the Prospectus, as so amended or supplemented, to such Underwriter.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement,
20
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions made in the
Registration Statement (or any amendment or supplement thereto), or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ expressly for use in the Registration Statement (or
any amendment or supplement thereto) or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt written notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party of such commencement shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may assume the defense of the indemnified party
by retaining counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and disbursements of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent does not contain a statement as to or an admission of fault,
culpability, or a failure to act by or on behalf of any indemnified party
(unless such statement is agreed to by the indemnified party in writing);
provided, however, that in the event such settlement, compromise or consent by
the indemnifying party does not include an unconditional release of each
indemnified party from all liability arising out of any litigation,
investigation, proceeding or claim, the provisions of this section with respect
to indemnification shall continue and survive.
7. CONTRIBUTION.
21
If the indemnification provided for in Section 6 hereof is for any
reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters, as incurred,
in such proportions that each Underwriter is responsible for that portion
represented by the percentage that the total commissions and underwriting
discounts received by such Underwriter pursuant to this Agreement to the date of
such liability bears to the initial public offering price of the Securities sold
to or through such Underwriter to the date of such liability to which such
losses, liabilities, claims, damages or expenses relate and the Company is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
If, however, the allocation provided in the previous paragraph is not
permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect, not only the relative benefits received by the Company
on the one hand, and the applicable Underwriter(s), on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses but also the relative fault of the
Company, on the one hand, and the applicable Underwriters, on the other hand in
connection with the offering of the Securities that were the subject of the
claim for indemnification. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the total proceeds (net of the total discounts or
commissions) from the sale of the Securities (before deducting expenses)
received by the Company bears to the total discount or commission received by
the applicable Underwriters in respect thereof. The relative fault of the
Company, on the one hand, and the applicable Underwriters, on the other hand,
shall be determined by reference to, among other things, whether any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
applicable Underwriter(s) and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
of the equitable considerations referred to above in Section 6. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred such indemnified party
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission covered by Section 6(a) hereof.
22
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the principal amount of Securities
set forth opposite their respective names in Schedule A hereto and not joint.
8. CURRENCY INDEMNITY
If, under any applicable law and whether pursuant to a judgment being
made or registered against the Company or for any other reason, any payment
under or in connection with this Agreement is made or is to be satisfied in a
currency (the "other currency") other than that in which the relevant payment is
expressed to be due (the "required currency") under this Agreement, then, to the
extent that the payment (when converted into the required currency at a rate of
exchange on the date of payment or, if it is not practicable for the
Underwriters to purchase the required currency with the other currency on the
date of payment, at the rate of exchange as soon thereafter as it is practicable
to do so) actually received by the Underwriters falls short of the amount due
under the terms of this Agreement, the Company shall, as a separate and
independent obligation, indemnify and hold harmless the Underwriters against the
amount of such shortfall. For the purpose of this Clause, "rate of exchange"
means the rate at which the Underwriters are able on the London foreign exchange
market on the relevant date to purchase the required currency with the other
currency and shall take into account any premium and other reasonable costs of
exchange.
9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, indemnities and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
10. TERMINATION OF AGREEMENT.
(a) The Underwriters may terminate this Agreement, immediately upon
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the execution of this Agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition, financial or otherwise, or in the
23
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there shall have occurred any outbreak
or escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
reasonable judgment of the Underwriters (after consultation with the Company),
impracticable to market the Securities or enforce contracts for the sale of the
Securities, (iii) if there has been a change in regional or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would in the view of the Underwriters be likely to
prejudice materially the success of the offering and distribution of the
Securities or dealings in the Securities in the secondary market, or (iv) if
trading in any securities of the Company has been suspended by the Commission or
a national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by federal, California or New York authorities, or (v) if the
rating assigned by either Standard & Poor's or ▇▇▇▇▇'▇ Investors Service, Inc.
to any debt securities of the Company shall have been lowered or if either such
rating agency shall have, subsequent to the date of this Agreement, publicly
announced that it has placed any debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail at Closing Time to purchase the Securities which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Underwriters shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Underwriters shall not have completed such arrangements
within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the
Securities, the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
24
In the event of any such default which does not result in a termination
of this Agreement, either the Underwriters or the Company shall have the right
to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
12. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Underwriters at Salomon Brothers International Limited, Victoria
Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, attention Fixed
Income Syndicate Desk; and notices to the Company shall be directed to it at
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of Vice
President--Treasury.
13. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 hereof and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any underwriter
shall be deemed to be a successor by reason merely of such purchase.
14. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original hereof.
15. CAPTIONS. The captions in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
16. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except where otherwise
provided, specified times of day refer to New York City time.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Group Vice President and
Assistant Secretary
CONFIRMED AND ACCEPTED,
as of the date first above written:
SALOMON BROTHERS INTERNATIONAL LIMITED
NOMURA INTERNATIONAL PLC
DEUTSCHE BANK AG LONDON
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
KOKUSAI EUROPE LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
TOKYO-MITSUBISHI INTERNATIONAL PLC
UBS AG, ACTING THROUGH ITS FINANCIAL SERVICES
GROUP UBS WARBURG
By: SALOMON BROTHERS INTERNATIONAL LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
For themselves and as Representative of
the Underwriters named in Schedule A hereto.
S-1
SCHEDULE A
PRINCIPAL AMOUNT
NAME OF UNDERWRITER OF SECURITIES
Salomon Brothers International Limited.................... (Y)23,500,000,000
Nomura International plc ................................. 23,500,000,000
Deutsche Bank AG London .................................. 500,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ International .............................. 500,000,000
Kokusai Europe Limited ................................... 500,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ International .............................. 500,000,000
Tokyo-Mitsubishi International plc ....................... 500,000,000
UBS AG acting through its financial services
group UBS Warburg ........................................ 500,000,000
=================
Total 50,000,000,000(Y)
A-1
SCHEDULE B
1. The initial public offering price of the Securities shall be 99.884% of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Securities
shall be 99.6965% of the principal amount thereof.
3. The interest rate on the Securities shall be .625% per annum.
B-1