$1,000,000,000
TOYOTA MOTOR CREDIT CORPORATION
(a California corporation)
5.625% Notes due 2003
UNDERWRITING AGREEMENT
November 9, 1998
WARBURG DILLON READ, a division of UBS ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
c/o WARBURG DILLON READ, a division of UBS AG
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
as Representatives of the several Underwriters named herein
Ladies and Gentlemen:
Toyota Motor Credit Corporation, a California corporation (the
"Company"), confirms its agreement with Warburg Dillon Read, a division of
UBS AG ("Warburg Dillon") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") and the several underwriters named in Schedule A attached
hereto and the purchase by such underwriters (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), acting severally and not jointly,
of the respective principal amounts set forth in Schedule A of $1,000,000,000
aggregate principal amount of the Company's 5.625% Notes due 2003 (the
"Securities"). Warburg Dillon and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall act as
representatives of the Underwriters (the "Representatives"). The Company is
a wholly owned subsidiary of Toyota Motor Sales, U.S.A., Inc. ("TMS"), which
is a wholly owned subsidiary of Toyota Motor Corporation. The Securities are
to be issued pursuant to an Indenture dated as of August 1, 1991, as amended
by the First Supplemental Indenture, dated as of October 1, 1991 (the
"Indenture") among the Company, The Chase Manhattan Bank, as trustee (the
"Trustee") and Bankers Trust Company.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (No. 333-60913) covering
registration of debt securities, including the Securities, under the Securities
Act of 1933, as amended (the "1933 Act"), which registration statement has been
declared effective by the Commission and copies of which have heretofore been
delivered to you. The Indenture has been qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"). Such Registration Statement, in the
form
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in which it was declared effective, including any amendments or supplements
thereto in the form such amendments or supplements became effective, and any
documents incorporated by reference therein through the date hereof, and at
the Closing Time (as defined in Section 2(b)), is hereinafter referred to as
the "Registration Statement." The Company proposes to file with the
Commission pursuant to paragraph (b) of Rule 424 ("Rule 424(b)") of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") a prospectus supplement (the "Prospectus Supplement"), dated
the date hereof, and a prospectus (the "Base Prospectus"), dated September 3,
1998, each relating to the Securities and the distribution thereof and has
previously advised you of all further information (financial and other) with
respect to the Company set forth therein. The Base Prospectus, as
supplemented by the Prospectus Supplement, together in the form in which they
are filed with the Commission pursuant to Rule 424(b) and including all
documents incorporated or deemed to be incorporated by reference therein, are
hereinafter referred to as the "Prospectus," except that if any revised
prospectus shall be provided to the Underwriters by the Company for use in
connection with the offering of the Securities which differs from the
Prospectus filed with the Commission pursuant to Rule 424(b) (whether or not
such revised prospectus is required to be filed by the Company pursuant to
Rule 424(b)), the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Underwriters for such
use. As used herein, the term "Prospectus Supplement" shall refer to the
Prospectus Supplement dated November 9, 1998 used with respect to the
Securities. Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include any Rule 462(b) Registration Statement. For purposes of this
Agreement, all references to the Registration Statement, the Prospectus or
any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934 (the
"1934 Act") which is incorporated by reference in the Registration Statement
or the Prospectus, as the case may be.
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:
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(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 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 the Representatives expressly for use in the
Registration Statement or Prospectus. Each Prospectus delivered to the
Underwriters for use in connection with this offering will be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iii) The financial statements and any supporting schedules of the
Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the consolidated financial position of the 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.
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(iv) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business (which
includes, but is not limited to, Euromarket, Euro Asian or global
financings and domestic private placement and public financing), which are
material with respect to the Company and its subsidiaries considered as one
enterprise, and (C) since the date of the most recent audited financial
statements of the Company, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock except as otherwise disclosed in the documentation relating to the
Securities.
(v) The Company (A) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
California with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus, (B)
has the requisite corporate power and authority to execute and deliver this
Agreement, the Indenture and the Securities and to perform its obligations
hereunder and thereunder, (C) has duly authorized, executed and delivered
this Agreement and this Agreement constitutes the valid and binding
agreement of the Company, and (D) is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or
the conduct of its business requires such qualification and in which the
failure to do so would materially adversely affect the business or
financial condition of the Company.
(vi) Each "significant subsidiary", if any, of the Company (as such
term is defined in Rule 1-02 of Regulation S-X under the 1933 Act) (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly organized
and is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the 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.
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(vii) The Indenture has been duly and validly authorized, executed
and delivered by the Company and assuming it has been duly and validly
authorized, executed and delivered by the Trustee, constitutes a legally
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by the application of general principles of
equity, including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability
of specific performance or injunctive relief, regardless of whether
considered in a proceeding in equity or at law.
(viii) The Securities have been duly and validly authorized by the
Company for issuance, offer and sale pursuant to this Agreement and, when
executed, authenticated and delivered pursuant to the provisions of the
Indenture and this Agreement against payment of the consideration set forth
herein and in the Prospectus, will constitute legally valid and binding
obligations of the Company enforceable against the Company in accordance
with their terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally (including, without limitation, fraudulent conveyance laws) and
by the application of general principles of equity, including without
limitation, the concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a proceeding in
equity or at law; and the Securities will be entitled to the benefits of
the Indenture; and the Securities and the Indenture conform in all material
respects to all statements relating thereto contained in the Registration
Statement and the Prospectus.
(ix) Neither the Company nor any of its Subsidiaries is in
violation of its charter or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its Subsidiaries is a party or by
which it may be bound, or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, which violation or default
would materially adversely affect the business or financial condition of
the Company and its Subsidiaries considered as one enterprise; and the
execution, delivery and performance of this Agreement and the Indenture and
the consummation of the transactions contemplated herein and therein will
not conflict with, or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries pursuant to,
any material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its Subsidiaries is a party
or by which it may be bound, or to which any of the property or assets of
the Company or any of its Subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter or 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
5
agency or body of the United States is required for the consummation by
the Company of the transactions contemplated by this Agreement or the
Indenture, except such as may be required under the 1933 Act or the 1933
Act Regulations or the 1939 Act or the 1939 Act Regulations or as may be
required by state securities or Blue Sky laws.
(x) Except as set forth in the Registration Statement, there is no
action, suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against the Company or any of its subsidiaries which
is required to be disclosed in the Registration Statement or which might in
the opinion of the Company result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the properties
or assets thereof or which might materially and adversely affect the
consummation of this Agreement; all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or
of which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary routine
litigation incidental to its business, are, considered in the aggregate,
not material; and there are no contracts or documents of the Company or any
of its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations which
have not been so filed.
(xi) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently conducted
where its ownership or lease of substantial properties or the conduct of
its business requires such ownership or possession or the obtaining of such
governmental licenses, permits, consents, orders, approvals and other
authorizations and where the failure to do so would materially adversely
affect the business or financial condition of the Company and its
subsidiaries considered as one enterprise.
(xii) The documents incorporated by reference in the Prospectus, at
the time they were filed with the Commission, complied in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission promulgated thereunder (the "1934 Act
Regulations"), and, when read together with the other information in or
incorporated by reference in the Prospectus, did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(xiii) The Company is not, and upon issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended (the "1940
Act").
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(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 the Representatives 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.
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 10 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 the Representatives and the Company, at 7:00
a.m., Los Angeles time, on November 13, 1998 (unless postponed in accordance
with Section 10 hereof), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives 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
Warburg Dillon 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 ($1,000 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 Warburg Dillon, 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. Warburg Dillon, 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 the Representatives not
later than 10:00 a.m. on the last business day prior to Closing Time at the
offices of The Chase Manhattan Bank.
7
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 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 Securities or similar changes or an amendment or supplement
which relates exclusively to an offering of debt securities under the
Registration Statement other than the Securities), whether by the filing of
documents pursuant to the 1934 Act (other than any Current Report on Form
8-K relating exclusively to the issuance of debt securities under the
Registration Statement other then the Securities), the 1933 Act, or
otherwise and will furnish the Underwriters with copies of any such
amendment or supplement or other documents proposed to be filed or prepared
a reasonable time in advance of such proposed filing or preparation, as the
case may be, and will not file any such amendment or supplement or use any
such prospectus to which the Underwriters or counsel for the Underwriters
shall reasonably object.
(c) The Company has delivered or will deliver to the Underwriters
as many conformed copies of the Registration Statement (as originally
filed) and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) as
8
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 may be necessary to correct such untrue statement or
omission, and the Company will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Underwriters may designate; provided, however, that
the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualifications in effect for a period of not less than one year from the
effective date of this Agreement. The Company will promptly advise the
Underwriters of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in any
state or jurisdiction or the initiating or threatening of any proceeding
for such purpose.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close
of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act
9
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 the Underwriters,
directly or indirectly, sell, offer to sell, contract to sell, or otherwise
dispose of, or announce the offering of, any debt securities denominated in
United States dollars, or any security exchangeable into such debt
securities, which have similar terms as the Securities.
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, including fees and disbursements of counsel
for the Trustee in connection with the Securities, and (h) any fees of ▇▇▇▇▇'▇
Investors Service, Inc. and Standard & Poor's Ratings Group.
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 5 or Section 9(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.
10
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:
(1) 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:
(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 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.
(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 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.
11
(v) 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.
(vi) 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.
(vii) 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.
(viii) At the time the Registration Statement became
effective, the Registration Statement (other than the
financial statements and supporting schedules and other
financial, statistical and accounting data included or
incorporated by reference and the Statements of Eligibility on
Form T-1 filed as exhibits therein, as to which no opinion
need be rendered) appeared on its face to comply as to form in
all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the 1939 Act
Regulations.
(ix) 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.
12
(x) 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.
(xi) 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.
(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, the
Indenture, the Securities 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
13
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, result 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 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 he expresses 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.
(2) The opinion, dated as of Closing Time, of O'Melveny &
▇▇▇▇▇ LLP, counsel for the Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of California.
(ii) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company, and has
been duly executed and delivered by the Company.
(iii) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company and has
been duly executed and delivered by the Company and the
Indenture has been qualified by the 1939 Act. Assuming the
due authorization, execution and delivery thereof by the
Trustee, the Indenture constitutes a legally valid and binding
obligation of the Company, enforceable against the Company in
14
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by the application
of general principles of equity including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether
considered in a proceeding in equity or at law.
(iv) The Securities (in the form of specimen certified by
the Company's Secretary and examined by such counsel) are in a
form permitted by the Indenture, have been duly authorized by
all necessary corporate action on the part of the Company for
issuance, offer and sale to the Underwriters as contemplated
by this Agreement, when executed and authenticated as
specified in the Indenture and delivered against payment of
the purchase price therefor pursuant to this Agreement and as
provided for in the Prospectus, will constitute legally valid
and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws)
and by the application of general principles of equity
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or
at law; and the Securities will be entitled to the benefits of
the Indenture.
(v) The Registration Statement has been declared
effective under the 1933 Act and, to their knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(vi) At the Closing Time, the Registration Statement
(other than the financial statements and supporting schedules
and other financial and statistical data included therein, as
to which no opinion need be rendered) appeared on its face to
comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the 1939 Act Regulations.
(vii) The Company is not an "investment company" as such
term is defined in the 1940 Act.
Additionally, such counsel shall state that subject to the
foregoing and relying as to their determination of materiality to an
extent upon opinions of
15
officers and other representatives of the Company, 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 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.
(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.
(e) Prior to the Closing Time, the Company shall have caused to be
made an application for the Notes to be listed on the Luxembourg Stock
Exchange.
(f) At Closing Time, the Underwriters shall have received from
PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the date referred
to shall be a date not more than three business days prior to Closing Time.
16
(g) At Closing Time, the Company's long term debt shall be rated
at least Aa1 by Moody's Investor's Service, Inc. and AAA by Standard &
Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. ("Standard & Poor's")
and from and including the date of this Agreement to and including the
Closing Time, 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 during such period no
such organization shall have publicly announced that it has under
surveillance or review its ratings of the long term debt of the Company;
provided however, that prior to the date of this Agreement, Standard &
Poor's placed the AAA rating of the Company on "CreditWatch" with negative
implications.
(h) 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.
(i) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Company at any time at or
prior to Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 4 hereof.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or
17
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 the Representatives 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 the Representatives expressly for use in the Registration
Statement (or any amendment thereto), or the Prospectus (or any amendments or
supplements thereto), and provided further, however, that the indemnity
agreement contained in this Section 6(a) shall not inure to the benefit of any
Underwriter with respect to any loss, liability, claim, damage or expense
arising from the sale of Securities by such Underwriter to any person if all of
the following occur: (x) such Underwriter has failed to send or give a copy of
the Prospectus (excluding documents incorporated by reference therein), as it
may then have been amended or supplemented, to that person at or prior to the
time of written confirmation of such sale to the extent necessary in accordance
with applicable law; (y) the untrue statement or alleged untrue statement of a
material fact in or omission or alleged omission of a material fact from a
previous form of Prospectus was corrected in the Prospectus, as then amended or
supplemented; and (z) such Underwriter shall have been notified as to such
amendment or supplement as set forth herein and the Company shall have delivered
copies of the Prospectus, as so amended or supplemented, to such Underwriter.
(b) Each Underwriter severally, and not jointly, agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions made in the Registration Statement (or any amendment or supplement
thereto), or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives 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
18
hereunder, but failure to so notify an indemnifying party of such
commencement shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may assume the defense of the indemnified party by
retaining counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
disbursements of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent does not contain a statement as to or an
admission of fault, culpability, or a failure to act by or on behalf of any
indemnified party (unless such statement is agreed to by the indemnified
party in writing); provided, however, that in the event such settlement,
compromise or consent by the indemnifying party does not include an
unconditional release of each indemnified party from all liability arising
out of any litigation, investigation, proceeding or claim, the provisions of
this section with respect to indemnification shall continue and survive.
7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any
reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters shall contribute to the aggregate 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
19
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 Notes that were the subject
of the claim for indemnification. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to
be in the same respective proportions as the total proceeds (net of the total
discounts or commissions) from the sale of the Securities (before deducting
expenses) received by the Company bears to the total discount or commission
received by the applicable Underwriters in respect thereof. The relative
fault of the Company, on the one hand, and the applicable Underwriters, on
the other hand, shall be determined by reference to, among other things,
whether any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied
by the Company or by the applicable Underwriter(s) and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into
account of the equitable considerations referred to above in Section 6. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission covered by
Section 6(a) hereof.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of 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.
20
8. 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.
9. TERMINATION OF AGREEMENT
(a) The Underwriters may terminate this Agreement, immediately upon
notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the execution of this Agreement or since the respective dates
as of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, or (ii) if there shall have occurred any outbreak or escalation
of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the
reasonable judgment of the Underwriters (after consultation with the
Company), impracticable to market the Securities or enforce contracts for the
sale of the Securities, 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 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 (iv) 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.
10. 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
21
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities, this
Agreement shall terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Underwriters or the Company shall have the
right to postpone Closing Time for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements.
11. 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 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, attention New Issues Department; and notices to the Company
shall be directed to it at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of Corporate Treasury Manager.
12. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF UNDERWRITERS. (a)
With respect to any offers or sales of the Notes outside the United States
(and solely with respect to any such offers and sales) each Underwriter
severally and not jointly makes the following representations and agrees that:
(i) United Kingdom
(A) in relation to the Notes, it has not offered or sold and, prior to the
expiry of the period of six months from the Closing Date of such Notes, will
not offer or sell any such Notes 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;
(B) it has complied and will comply with all applicable provisions of the
Financial Services ▇▇▇ ▇▇▇▇ of the United Kingdom with respect to anything
done by it in relation to any Notes in, from or otherwise involving the
United Kingdom; and
(C) 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
any of the Notes to a person who is of a kind described in Article 11(3) of
the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements)(Exemptions) Order
1996, as amended, or is a person to whom such document may otherwise lawfully
be issued or passed on.
22
(ii) General
(A) it represents and agrees that it will comply with all applicable laws and
regulations in each jurisdiction in which it purchases, offers or sells the
Notes 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 Notes under the laws and
regulations in force in any jurisdiction to which it is subject or in which
it makes such purchases, offers or sales and none of the Company or any other
Underwriter shall have any responsibility therefor;
(B) no action has been or will be taken by such Underwriter that would permit
a public offering of the Notes or possession or distribution of any offering
material in relation to the Notes in any jurisdiction where action for that
purpose is required unless the Company has agreed to such actions and such
actions have been taken; and
(C) it represents and agrees that it will not offer, sell or deliver any of
the Notes 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. It acknowledges that it is not authorized to
give any information or make any representations in relation to the Notes
other than those contained or incorporated by reference in the Prospectus for
the Notes and such additional information, if any, as the Company shall, in
writing, provide to and authorize such Underwriter so to use and distribute
to actual and potential purchasers of Notes.
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.
23
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: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and
General Manager
24
CONFIRMED AND ACCEPTED,
as of the date first above written:
WARBURG DILLON READ, a division
of UBS ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
Acting severally on behalf of themselves and the several
underwriters named in schedule A hereto
By: WARBURG DILLON READ, a division
of UBS AG
By: ▇. ▇▇▇▇▇▇▇ By: ▇. ▇▇▇▇▇▇
---------------------------- ---------------------------------
Name: ▇. ▇▇▇▇▇▇▇ Name: ▇. ▇▇▇▇▇▇
Title: Executive Director Title: Associate Director
25
SCHEDULE A
Principal Amount
Name of Underwriter of Securities
------------------- ----------------
Warburg Dillon Read, a division of UBS AG $435,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited $435,000,000
Nomura International plc $ 20,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. $ 20,000,000
Barclays Bank plc $ 10,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $ 10,000,000
Credit Suisse First Boston (Europe) Limited $ 10,000,000
▇▇▇▇▇▇▇, Sachs & Co. $ 10,000,000
Banque Bruxelles ▇▇▇▇▇▇▇ ▇.▇. $ 10,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 10,000,000
▇▇▇▇▇▇ Brothers International (Europe) $ 10,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ International $ 10,000,000
Paribas $ 10,000,000
--------------
Total $1,000,000,000
--------------
--------------
A-1
SCHEDULE B
1. The initial public offering price of the Securities shall be
99.837% 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 99.537% of the principal amount thereof.
3. The interest rate on the Securities shall be 5.625% per annum.
B-1
