FINAL
TOYOTA MOTOR CREDIT CORPORATION
Medium-Term Notes, Series B
Due More Than One Year From Date of Issue
DISTRIBUTION AGREEMENT
April 2, 2004
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
Merrill Lynch World Headquarters
4 World Financial Center Floor 15
New York, New York 10080
CITIGROUP GLOBAL MARKETS INC.
388 Greenwich Street
New York , New York 10013
CREDIT SUISSE FIRST BOSTON LLC
11 Madison Avenue
New York, New York 10010
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10154
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway, 2nd Floor
New York, New York 10036
Ladies and Gentlemen:
Toyota Motor Credit Corporation, a California corporation (the "Company")
confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), Citigroup Global Markets Inc. ("Citigroup"), Credit Suisse
First Boston LLC ("CSFB"), J.P. Morgan Securities Inc. ("J.P. Morgan"), and
Morgan Stanley & Co. Incorporated ("Morgan Stanley") (collectively, the
"Agents"), with respect to the issue and sale by the Company of its Medium-Term
Notes, Series B, Due More Than One Year From Date of Issue (the "Notes"). The
Notes are to be issued pursuant to an indenture (as the same may be amended or
restated from time to time, the "Indenture") dated as of August 1, 1991, as
amended by the First Supplemental Indenture, dated as of October 1, 1991 and the
Second Supplemental Indenture, dated as of March 31, 2004 among the Company,
JPMorgan Chase Bank (as successor to The Chase Manhattan Bank, N.A.) and
Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company).
Deutsche Bank Trust Company Americas will act as trustee with respect to the
Notes (the "Trustee"). This Distribution Agreement shall be referred to
hereafter as this "Agreement." The parties hereto previously entered into a
First Amended and Restated Distribution Agreement dated September 3, 1998, which
was amended by Amendment No. 1 thereto dated January 12, 2000, Amendment No. 2
thereto dated August 24, 2001, and Amendment No. 3 thereto dated April 4, 2002
(as amended, the "Original Agreement"), with respect to the Company's
Medium-Term Notes Due More Than One Year From Date of Issue (the "Original
Notes"), and the parties have agreed not to offer and sell any additional
Original Notes pursuant to the Original Agreement after the date hereof.
As of the date hereof, the Company has authorized the issuance and sale by
the Company directly or through the Agents pursuant to the terms of this
Agreement of up to $7,000,000,000 (or its equivalent based on the applicable
exchange rate at the time of issuance, in such foreign currencies or units of
two or more currencies as the Company shall designate at the time of issuance)
aggregate principal amount of Notes, provided that, in calculating the aggregate
principal amount of Notes authorized, with respect to Notes issued at a discount
to face, the initial offering price shall be used, and with respect to Notes
issued at a premium to face, the face amount of such Notes shall be used. It is
understood, however, that the Company may from time to time, pursuant to an
Officer's Certificate delivered to the Trustee pursuant to Section 301 of the
Indenture (with an original copy thereof delivered to the Agents), reduce the
authorized aggregate initial offering price of the Notes (but not below the
aggregate initial offering price of Notes previously issued under the Indenture)
or authorize the issuance of additional Notes and that such additional Notes may
be distributed directly by the Company or through or to the Agents pursuant to
the terms of this Agreement, all as though the issuance of such Notes were
authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company directly
to purchasers, in which case the Agents will act as agents of the Company in
soliciting Note purchases, and (as may from time to time be agreed to by the
Company and the related Agent or Agents) to one or more Agents as principal for
resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-113680) for the
registration of debt securities, including the Notes, under the Securities Act
of 1933, as amended (the "1933
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Act") and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). Such registration statement (and any further
registration statements which may be filed by the Company for the purpose of
registering additional Notes and in connection with which this Agreement is
included or incorporated by reference as an exhibit) and the prospectus
constituting a part thereof, and any prospectus supplements relating to the
Notes, including all documents incorporated therein by reference, as from time
to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934 (the "1934 Act") or the 1933 Act or otherwise,
are referred to herein as the "Registration Statement" and the "Prospectus",
respectively, except that if any revised prospectus shall be provided to the
Agents by the Company for use in connection with the offering of the Notes which
is not required to be filed by the Company pursuant to Rule 424(b) of the 1933
Act Regulations, the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Agents for such use;
provided that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to the
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. For purposes of this Agreement, all references to the
Registration Statement, Prospectus or preliminary prospectus or to any amendment
or supplement thereto shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions stated
herein, the Company hereby appoints the Agents, except as otherwise provided in
this Section 1(a), as the exclusive agents, subject to the provisions contained
in this Section 1(a), for the purpose of soliciting purchases of the Notes from
the Company by others and agrees that, except as otherwise contemplated herein,
whenever the Company determines to sell Notes directly to one or more Agents as
principal for resale to others, it will enter into a Terms Agreement (as
hereafter defined) relating to each such sale in accordance with the provisions
of Section 3(b) hereof if requested by such Agent. The Company agrees that,
except as otherwise provided in this Section 1(a), during the period the Agents
are acting as the Company's agents hereunder, the Company will not engage any
other party to assist in the placement of the Notes (other than any person or
entity which, by executing a counterpart of this Agreement, becomes an Agent
hereunder). Notwithstanding the foregoing, the Company reserves the right to (i)
appoint additional agents for the purpose of assisting in the placement of the
Notes during the term of this Agreement under the terms of an agreement
substantially identical to this Agreement (provided that the commission to be
paid to such additional agents in connection with the sale of any Note shall be
the applicable commission determined pursuant to Section 3(a) hereof), and (ii)
sell Notes to one or more underwriters in a discrete principal transaction or
transactions (whether on an individual or syndicated basis) so long as such
underwriter or underwriters shall execute an agreement substantially identical
to this Agreement relating to such principal transaction or transactions (such
person and/or entity described in subclause (ii) of this sentence shall be
referred to herein as a "Dealer"), provided however, that no such agreement will
appoint any such underwriter an agent under this Agreement except as relates to
the related transaction or
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transactions. As used herein, the term "Agent", in addition to Merrill Lynch,
Citigroup, CSFB, J.P. Morgan, and Morgan Stanley, refers to each person or
entity which, at any particular time, is an agent or underwriter, as the case
may be, for the Company hereunder as evidenced by its execution of a counterpart
of this Agreement.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon receipt
of instructions from the Company, the Agents will use their reasonable efforts
to solicit purchases of such principal amount of Notes as the Company and the
Agents shall agree upon from time to time during the term of this Agreement, it
being understood that the Company shall not approve the solicitation of
purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the initial offering price of Notes
registered pursuant to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of the
Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agents; Purchases as Principals. In soliciting
purchases of the Notes on behalf of the Company, unless otherwise specified
pursuant to the terms hereof, each Agent shall act solely as agent for the
Company and not as principal. Each Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by the Company. No Agent
shall have any liability to the Company in the event any such purchase is not
consummated for any reason. No Agent shall have any obligation to purchase notes
from the Company as principal but such Agent, individually or as part of a
syndicate with other Agents and/or Dealers, may agree from time to time to
purchase Notes as principal. Any such purchase of Notes by an Agent as principal
shall be made pursuant to a Terms Agreement in accordance with Section 3(b)
hereof if requested by such Agent. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer has been solicited by
such Agent on any agency basis and accepted by the Company due to its refusal to
perform or because of a breach of representation or warranty contained herein,
the Company shall (i) hold such Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii) pay to such
Agent any commission to which it would otherwise be entitled absent such
default.
(d) Reliance. The Company and the Agents agree that any Notes the placement
of which the Agents arrange shall be placed by the Agents, and any Notes
purchased by the Agents shall be purchased, in reliance on the representations,
warranties, covenants and agreements of the Company contained herein and on the
terms and conditions and in the manner provided herein.
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SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether through the Agents as agents or to one or more Agents
as principal), as of the date of each delivery of Notes (whether through the
Agents as agents or to one or more Agents as principal) (the date of each such
delivery to one or more Agents as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of or a change in, the
interest rates, maturity, price or other terms of Notes or similar changes) or
there is filed with the Commission any document incorporated by reference into
the Prospectus (other than any Current Report on Form 8-K relating exclusively
to the issuance of debt securities under the Registration Statement other than
the Notes) (each of the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) Registration Statement and Prospectus. At the time the Registration
Statement became effective, the Registration Statement complied, and as of
the applicable Representation Date will comply, in all material respects
with the applicable requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the
Commission promulgated thereunder and no stop order suspending the
effectiveness 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; and the Indenture has been duly qualified under the 1939
Act. The Registration Statement (including any Rule 462(b) Registration
Statement) at the time it became effective did not, and at each time
thereafter at which any amendment to the Registration Statement (including
any Rule 462(b) Registration Statement) becomes effective or any Annual
Report on Form 10-K is filed by the Company with the Commission and as of
the applicable Representation Date, will not, considering the Registration
Statement and all Incorporated Documents (as defined in Section 5(a)(4))
considered as a whole, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, as of the date
hereof does not, and as of the applicable Representation Date will not,
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Agents expressly for use in the
Registration Statement or Prospectus or to those parts of the Registration
Statement which constitute the Statements of Eligibility under the 1939 Act
on Form T-1. Each Prospectus delivered to the applicable agent for use in
connection with the offering of the Notes is identical to any
electronically
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transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated by reference in the
Prospectus, at the time they were filed with the Commission, complied in
all material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder (the "1934 Act Regulations"), and,
when read together and with the other information in or incorporated by
reference in the Prospectus, did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(iii) Accountants. The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants within the meaning of the 1933 Act and the 1933 Act
Regulations.
(iv) Financial Statements. The financial statements and any supporting
schedules of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the consolidated
results of their operations for the periods specified; and, except as
stated therein, said financial statements have been prepared in conformity
with generally accepted accounting principles in the United States applied
on a consistent basis; and any supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein.
(v) Due Incorporation; Authorization and Validity of this Agreement, the
Indenture and the Notes. The Company (A) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of California with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, (B) has the requisite corporate power and authority to execute
and deliver this Agreement, any Terms Agreement, the Indenture and the
Notes and to perform its obligations hereunder and thereunder, (C) has duly
authorized, executed and delivered this Agreement and any Terms Agreement
and each of this Agreement and such Terms Agreement constitutes the valid
and binding agreement of the Company, and (D) is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or
the conduct of its business requires such qualification and in which the
failure to do so would materially adversely affect the business or
financial condition of the Company.
(vi) Material Changes or Material Transactions. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise Stated therein, (A) there has been no
material adverse change
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in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course
of business (which includes, but is not limited to, Euromarket, Euro Asian
or global financing and domestic private placement and public financing),
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) since the date of the most recent
audited financial statements of the Company, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock except as otherwise described in an Incorporated
Document or as disclosed in the documentation relating to a particular
issuance of Notes, including the applicable pricing supplement.
(vii) Significant Subsidiaries. Each "significant subsidiary", if any, of
the Company (as such term is defined in Rule 1-02 of Regulation S-X under
the 1933 Act) (each a "Subsidiary" and, collectively, the "Subsidiaries")
has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not materially affect the business or financial condition of the
Company; except as otherwise disclosed in the Prospectus, all of the issued
and outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any Subsidiary
was issued in violation of preemptive or similar rights of any
securityholder of such Subsidiary.
(viii) The Indenture. The Indenture has been duly and validly authorized,
executed and delivered by the Company and assuming it has been duly and
validly authorized, executed and delivered by the Trustee, constitutes a
legally valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as may be limited by (1)
bankruptcy, insolvency reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without limitation, fraudulent
conveyance laws) or the application of general principles of equity,
including without limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law, (2) requirements that a claim with respect
to any Notes payable in foreign or composite currency (or a foreign or
composite currency judgement in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (3)
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governmental authority to limit, delay or prohibit the making of payments
outside the United States.
(ix) The Notes. The Notes have been duly and validly authorized by the
Company for issuance, offer and sale pursuant to this Agreement and, when
completed as contemplated by the Procedures (hereinafter defined),
executed, authenticated and delivered pursuant to the provisions of the
Indenture and this Agreement against payment of the consideration set forth
in the Prospectus or pursuant to any Terms Agreement, will constitute
legally valid and binding obligations of the Company enforceable against
the Company in accordance with their terms, except as may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) or by the application of general principles of
equity, including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability
of specific performance or injunctive relief, regardless of whether
considered in a proceeding in equity or at law, (2) requirements that a
claim with respect to any Notes payable in foreign or composite currency
(or a foreign or composite currency judgement in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (3) governmental authority to
limit, delay or prohibit the making of payments outside the United States
and will be entitled to the benefits of the Indenture; and the Notes and
the Indenture conform in all material respects to all statements relating
thereto contained in the Registration Statement.
(x) No Defaults; Compliance with Laws; Regulatory Approvals. Neither the
Company nor any of its Subsidiaries is in violation of its charter or
bylaws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any Subsidiaries is a party or by which it may be bound, or to
which any of the property or assets of the Company or any of its
Subsidiaries is subject, which violation or default would materially
adversely affect the business or financial condition of the Company and its
Subsidiaries considered as one enterprise; and the execution, delivery and
performance of this Agreement, any Terms Agreement and the Indenture and
the consummation of the transactions contemplated herein and therein will
not conflict with, or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries pursuant to,
any material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its Subsidiaries is a party
or by which it may be bound, or to which any of the property or assets of
the Company or any of its Subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter or bylaws of the
Company or any of its Subsidiaries or, to the best knowledge of the Company
or any of its Subsidiaries, any law, administrative regulation or
administrative or court decree, and no consent, approval, authorization,
order or decree of any court or governmental agency or body of the United
States is
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required for the consummation by the Company of the transactions
contemplated by this Agreement, any Terms Agreement or the Indenture,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or as may be
required by state securities or Blue Sky laws.
(xi) Legal Proceedings; Contracts. Except as set forth in the Registration
Statement, there is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement or which might in the opinion of the Company result in any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof or which might materially
and adversely affect the consummation of this Agreement or any Terms
Agreement; all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
its business, are, considered in the aggregate, not material; and there are
no contracts or documents of the Company or any of its subsidiaries which
are required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
(xii) Licenses. The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently conducted
where its ownership or lease of substantial properties or the conduct of
its business requires such ownership or possession or the obtaining of such
governmental licenses, permits, consents, orders, approvals and other
authorizations and where the failure to do so would materially adversely
affect the business or financial condition of the Company and its
subsidiaries considered as one enterprise.
(xiii) Investment Company Act. The Company is not, and upon issuance and
sale of the Notes as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(xiv) Commodity Exchange Act. The Notes, upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange Act, as
amended (the "Commodity Exchange Act"), and the rules and regulations of
the Commodity Futures Trading Commission under the Commodity Exchange Act
(the "Commodity Exchange Act Regulation").
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(xv) Rating of the Notes. The Company's long term debt rating is "Aaa" by
Moody's Investors Service, Inc. and "AAA" by Standard & Poor's Ratings
Services.
(b) Additional Certifications. Any certificate signed by any director or
officer of the Company and delivered to the Agents or to counsel to the Agents
in connection with an offering of Notes or the sale of Notes to one or more of
the Agents as principal shall be deemed a representation and warranty by the
Company to the Agents as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers for the purchase of
Notes upon the terms and conditions set forth in the Prospectus. The Agents are
not authorized to appoint sub-agents with respect to Notes sold through them as
agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agents will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount or otherwise as agreed to by the Company and the Agents, equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by such Agent as set forth in Schedule A
hereto; provided, however, that the Company shall only be obligated to pay one
such fee with respect to any particular Note so sold.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the Agents and set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance by
the Company of an offer for the purchase of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the Notes will be issued in
denominations of $1,000 and integral multiples thereof. All Notes sold through
the Agents as agents will be sold at 100% of their principal amount unless
otherwise agreed to by the Company and the Agents.
(b) Purchases as Principal. Notes purchased from the Company by an Agent or
Dealers individually or as part of a syndicate with one or more other Agents
and/or Dealers, as principal shall be made in accordance with the terms
contained herein and, if requested by such Agent or Dealer, pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof, by such Agent or Dealer. Each such separate
agreement (which may be an oral agreement) between one or more Agents and/or
Dealers and the Company is herein referred to as a "Terms Agreement." Unless the
context otherwise requires, each reference contained herein to "this Agreement"
shall be deemed to include any Terms Agreement between the Company and one or
more Agents and/or Dealers. Each such
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Terms Agreement, whether oral or in writing, shall be with respect to such
information (as applicable) as is specified in Exhibit A hereto. An Agent's
and/or Dealer's commitment to purchase Notes as principal shall be deemed to
have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth and, as applicable, as set forth in any Terms Agreement. Each Terms
Agreement shall specify the principal amount of Notes to be purchased by each
Agent and/or Dealer pursuant thereto, the price to be paid to the Company for
such Notes (which, if not so specified in a Terms Agreement, shall be at a
discount equivalent to the applicable commission set forth in Schedule A
hereto), the time and place of delivery of and payment for such Notes, if the
trade is being made with two or more Agents and/or Dealers, the applicable
default provisions in the event of a default by one or more of the Agents and/or
Dealers, and such other provisions (including further terms of the Notes) as may
be mutually agreed upon. The Agents and/or Dealers may engage the services of
any broker or dealer in connection with the resale of the Notes purchased by
them as principal and may allow all or any portion of the discount received from
the Company in connection with such purchases to such brokers or dealers. Such
Terms Agreement shall also specify whether or not any of the officer's
certificate, opinions of counsel or comfort letter specified in Sections 7(b),
7(c) and 7(d) hereof shall be required to be delivered by the Company on the
related Settlement Date.
If the Company and two or more Agents and/or Dealers enter into an
agreement pursuant to which such Agents and/or Dealers agree to purchase Notes
as part of a syndicate and one or more of such Agents and/or Dealers shall fail
at the Settlement Date to purchase the Notes which it or they are obligated to
purchase (the "Defaulted Notes"), then the nondefaulting Agents and/or Dealers
shall have the right, within 24 hours thereafter, to make arrangements for one
of them or one or more other Agents or underwriters to purchase all, but not
less than all, of the Defaulted Notes in such amounts as may be agreed upon and
upon the terms herein set forth; provided, however, that if such arrangements
shall not have been completed within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Notes does not exceed
10% of the aggregate principal amount of Notes to be so purchased by all of
such Agents and/or Dealers on the Settlement Date, the nondefaulting Agents
and/or Dealers shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions that their respective initial
underwriting obligations bear to the underwriting obligations of all
nondefaulting Agents and/or Dealers; or
(ii) if the aggregate principal amount of Defaulted Notes exceeds 10% of
the aggregate principal amount of Notes to be so purchased by all of such
Agents and/or Dealers on the Settlement Date, such agreement to purchase
such Notes shall terminate without liability on the part of any
nondefaulting Agents and/or Dealers.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
and/or Dealer from liability in respect of its default. In the event of any such
default which does not result in a termination of such agreement, either the
nondefaulting Agents and/or Dealers or the Company shall have the right to
postpone the Settlement Date for a period not exceeding seven days in
11
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
(c) Administrative Procedures. Administrative procedures with respect to
the sale of Notes shall be agreed upon from time to time by the Agents and the
Company (the "Procedures"). Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Procedures.
(d) Delivery of Closing Documents. The documents required to be delivered
by Section 5 hereof shall be delivered at the office of O'Melveny & Myers LLP,
400 South Hope Street, Los Angeles, California 90071 on the date hereof, or at
such other time or place as the Agents and the Company may agree.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will promptly notify (i) the
Agents of the effectiveness of any amendment to the Registration Statement, (ii)
the related Agent or Agents of the transmittal to the Commission for filing of
any supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus (other than any
Current Report on Form 8-K relating exclusively to an offering of debt
securities under the Registration Statement other than the Notes), (iii) the
Agents of the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus, (iv) the Agents of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or for additional information, (v) the Agents of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose; and (vi) any change in the rating assigned by any nationally recognized
statistical rating organization to any debt securities (including the Notes) of
the Company, or the public announcement by any nationally recognized statistical
rating organization that it has under surveillance or review, with possible
negative implications, its rating of any such debt securities, or the withdrawal
by any nationally recognized statistical rating organization of its rating of
any such debt securities since the date of this Agreement. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Notice of Certain Proposed Filings. Except as otherwise provided in
subsection (l) of this Section 4, the Company will give the Agents notice of its
intention to file or prepare any additional registration statement with respect
to the registration of additional Notes, any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than an
amendment or supplement providing solely for the establishment of or change in,
the interest rates, maturity, price or other terms of Notes or other similar
changes or an amendment or supplement which relates exclusively to an offering
of debt securities under the Registration Statement other than the Notes)
whether by the filing of documents pursuant to the
12
1934 Act (other than any Current Report on Form 8-K relating exclusively to the
issuance of debt securities under the Registration Statement other than the
Notes), the 1933 Act or otherwise, and will furnish the Agents with copies of
any such amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or preparation, as
the case may be, and will not file any such amendment or supplement in a form to
which you or your counsel shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The Company
will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) (other than an amendment or supplement
which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) as the related Agents shall
reasonably request so long as the Agent is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes. The
Registration Statement and the Prospectus and any amendments or supplements
thereto furnished to the Agents will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the related Agent or Agents and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the Commission on the fifth business day after the date on which
such Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (l) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel to the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agents and to cease sales of any Notes the
Agents may then own as principal pursuant to a Terms Agreement, and the Company
will promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise,
as may be necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (l) of this Section 4, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company
13
with respect to each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to any fiscal year, the
Company shall furnish such information to counsel for the Agents, and shall
cause the Registration Statement and the Prospectus to be amended or
supplemented, whether by the filing of documents pursuant to the 1934 Act, the
1933 Act or otherwise, to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanation as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (l) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company, by applying the provisions of Rule
158 under the 1933 Act, will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 under the 1933 Act) covering each twelve month period beginning, in
each case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the Registration
Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. If requested by an Agent prior to the issuance
of any Notes, the Company will endeavor, in cooperation with the Agents and to
the extent reasonably practicable, to qualify the Notes for offering and sale
under the applicable securities laws of such states and other jurisdictions of
the United States as the Agents may designate, and will maintain such
qualification in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will promptly
advise the Agents of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any such state
or jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(j) 1934 Act Filings. The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act. Such documents will comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations and to the
extent such documents are incorporated by reference in the Prospectus, when read
together with the other information in or incorporated by reference into
14
the Prospectus, will not contain any untrue statement of a material fact or omit
to state a material fact required to by stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
are made, not misleading.
(k) Stand-Off Agreement. If required by any Terms Agreement, between the
date of any Terms Agreement and the Settlement Date with respect to such Terms
Agreement, the Company will not, without the prior written consent of each Agent
party to such Terms Agreement, directly or indirectly, sell, offer to sell,
contract, to sell or otherwise dispose of, or announce the offering of, any debt
securities of the Company denominated in the same currency as the Notes to be
purchased pursuant to such Terms Agreement, or any security exchangeable into
such debt securities (other than (i) the Notes that are to be sold pursuant to
such Terms Agreement (ii) securities sold in any Euro Asian or Euromarket
financing, or (iii) commercial paper in the ordinary course of business).
(l) Suspension of Certain Obligations. The Company shall not be required to
comply with the provisions of subsections (a), (b), (c), (e), (f), (g) or (j) of
this Section 4 or the provisions of Section 7 hereof during any period from the
time (i) the Agents shall have received written notification from the Company to
suspend solicitation of purchases of the Notes in their capacity as agents and
(ii) the earlier of the date on which no Agent shall then hold any Notes as
principal purchased pursuant to the Terms Agreement and the date which is thirty
days (nine months with respect to subsections (e) and (j) of this Section 4)
from the date on which the Agents shall have received written notice from the
Company to suspend solicitation of purchases of the Notes, to the time the
Company shall determine that solicitation of purchases of the Notes should be
resumed or shall subsequently enter into a new Terms Agreement with the Agents.
(m) Use of Proceeds. The net proceeds from the sale of Notes will be used
by the Company as described in the Prospectus.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to solicit offers to purchase the Notes as
agents of the Company, the obligations of any purchasers of the Notes sold
through the Agents as agents, and any obligation of the Agents to purchase Notes
as principals pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties on the part of the Company herein
contained and to the accuracy of the statements of the Company's officers made
in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all its covenants and agreements
herein contained and to the following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents and their counsel:
(1) Opinion of Company Counsel. The opinion of the General Counsel for the
Company to the effect that:
(i) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of California.
15
(ii) The Company has corporate power and corporate authority to own,
lease and operate its properties and to conduct its business as described
in the Registration Statement and in each document filed pursuant to the
1934 Act and incorporated by reference into the Prospectus.
(iii) This Agreement and any applicable Terms Agreement have each been
duly authorized by all necessary corporate action on the part of the
Company, and have each been duly executed and delivered by the Company.
(iv) The Indenture has been duly authorized by all necessary corporate
action on the part of the Company and has been duly executed and delivered
by the Company and the Indenture has been qualified under the 1939 Act. If
California law were to apply, the Indenture would constitute a legally
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) or by the application of general
principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law, (2) requirements
that a claim with respect to any Notes payable in foreign or composite
currency (or a foreign or composite currency judgement in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law, (3) governmental authority to
limit, delay or prohibit the making of payments outside the United States
or payments in which designated foreign countries, entities or nationals
have an interest; and (4) the unenforceability under certain circumstances
of (a) any indemnification provisions, (b) broadly or vaguely stated
waivers or waivers of rights granted by law where the waivers are against
public policy or prohibited by law; (c) choice of law provisions and (d)
severability provisions.
(v) The Notes (in the form of specimens certified by the Company's
Secretary and examined by such counsel) are in forms permitted by the
Indenture, and have been duly authorized by all necessary corporate action
on the part of the Company for issuance, offer and sale as contemplated by
this Agreement. If California law were to apply, the Notes when completed
as contemplated by the Procedures, executed and authenticated as specified
in the Indenture and delivered against payment of the purchase price
therefor pursuant to this Agreement as provided in the Prospectus and any
Terms Agreement, will constitute legally valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally (including, without limitation, fraudulent conveyance laws) or by
the application of general principles of equity including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or
injunctive relief, regardless of whether
16
considered in a proceeding in equity or at law, (2) requirements that a
claim with respect to any Notes payable in foreign or composite currency
(or a foreign or composite currency judgement in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, (3) governmental authority to limit,
delay or prohibit the making of payments outside the United States or
payments in which designated foreign countries, entities or nationals have
an interest or (4) the unenforceability under certain circumstances of (a)
any indemnification provisions, (b) broadly or vaguely stated waivers or
waivers of rights granted by law where the waivers are against public
policy or prohibited by law; (c) choice of law provisions and (d)
severability provisions, and the Notes will be entitled to the benefit of
the Indenture.
(vi) The Registration Statement has been declared effective under the
1933 Act and, to his knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
(vii) At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements and other
financial and statistical data included or incorporated by reference
therein and the Statements of Eligibility on Form T-1 filed as Exhibits
thereto, as to which no opinion need be rendered) appeared on its face to
comply as to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the 1939 Act
Regulations.
(viii) Each document filed pursuant to the 1934 Act (other than the
financial statements and other financial and statistical data included
therein, as to which no opinion need be rendered) and incorporated by
reference in the Prospectus when filed, appeared on its face to comply as
to form in all material respects with the 1934 Act and the 1934 Act
Regulations thereunder in effect at the date of their filing.
(ix) The information in the Prospectus under the caption "Description
of Notes", and "Description of Debt Securities", to the extent that it
constitutes matters of law, summaries of legal matters, documents or
proceedings, or legal conclusions, has been reviewed by him and is correct
in all material respects.
(x) No authorization, approval, consent or order of any court or
governmental authority or agency is required in connection with the sale of
the Notes, except such as may be required under the 1933 Act or the 1933
Act Regulations or the 1939 Act or the 1939 Act Regulations or state
securities laws.
(xi) To such counsel's knowledge, the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or
the conduct of its business requires such qualification and in which the
failure to so
17
qualify and be in good standing would materially adversely affect its
business or financial condition.
(xii) To such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened which are required to be disclosed in the
Registration Statement or in each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus, other than those disclosed
therein, and all pending legal or governmental proceedings to which the
Company or any of its Subsidiaries is a party or to which any of their
property is subject which are not described in the Registration Statement
or in each document filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not material.
(xiii) To such counsel's knowledge, no default exists in the due
performance or observance by the Company of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument described or referred to in the
Registration Statement or filed as an exhibit thereto or incorporated by
reference therein, which default would have a material adverse effect on
the financial condition, earnings, business affairs, business prospects,
properties or results of operations of the Company and its subsidiaries
considered as one enterprise.
(xiv) The execution and delivery of this Agreement, any Terms
Agreement, the Indenture, the Notes and the consummation of the
transactions contemplated herein and therein will not (A) conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, (B) result in any violation of the provisions of
the charter or bylaws of the Company, or (C) to such counsel's knowledge,
results in any violation of any applicable law, administrative regulation
or administrative or court decree.
(xv) The shares of issued and outstanding Common Stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable.
(xvi) To such counsel's knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to
be described or referred to in the Registration Statement or in each
document filed, or to be filed or incorporated by reference as exhibits
thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof
are correct in all material respects.
18
(2) Tax Opinion. The opinion of O'Melveny & Myers LLP, as special tax
counsel to the Company, to the effect that the information in the
Prospectus under the caption "United States Taxation" (or similar caption),
to the extent that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has been reviewed
by it and is correct in all material respects.
(3) Opinion of Counsel to the Agents. The opinion of O'Melveny & Myers LLP,
counsel to the Agents, covering the matters referred to in subparagraph (1)
under the subheadings (i), (iii) through (vii), inclusive, of this Section
5(a) and addressing substantially the matters referred to in Section
2(a)(xiii), except that such counsel shall give the opinion in Section
5(a)(iv) and (v) applying New York law to the Indenture and to the Notes.
(4) In giving their opinions required by subsection (a)(1) and (a)(3) of
this Section 5, each counsel shall additionally state that they do not
believe that the Registration Statement, at the time it became effective,
and if an amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the Company with the Commission subsequent to
the effectiveness of the Registration Statement (an "Incorporated
Document") and prior to the date of such statement, then at the time such
amendment became effective or at the time of the most recent such filing of
an Incorporated Document (to the extent deemed to be incorporated by
reference in the Registration Statement and Prospectus), and, considering
the Registration Statement and Incorporated Document as a whole, at the
date hereof, or (if such opinion is being delivered in connection with a
Terms Agreement pursuant to Section 7(c) hereof) at the date of any Terms
Agreement and at the Settlement Date with respect thereto, as the case may
be, contains or contained an untrue statement of a material fact or omits
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, not misleading or that
the Prospectus, as amended or supplemented at the date hereof, or (if such
opinion is being delivered in connection with a Terms Agreement pursuant to
Section 7(c) hereof) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be, contains or
contained an untrue statement of a material fact or omits or omitted to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
Such counsel may state that they express no view as to the Statements of
Eligibility on Form T-1, financial statements and other financial and
statistical data included or incorporated by reference in such Registration
Statement or Prospectus.
(b) Officer's Certificate. At the date hereof the Agents shall have
received a certificate of the President or Vice President and the chief
financial or chief accounting officer of the Company, dated as of the date
hereof, certifying to their best knowledge after due inquiry to the effect that
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of any Terms
Agreement, there has not been any
19
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) the other representations and warranties of
the Company contained in Section 2 hereof are true and correct with the same
force and effect as through expressly made at and as of the date of such
certificate, (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and, to their
knowledge, no proceedings for that purpose have been initiated or threatened by
the Commission.
(c) Comfort Letter. On the date hereof, the Agents shall have received a
letter from PricewaterhouseCoopers LLP, dated as of the date hereof and in form
and substance previously agreed to by the Company and the Agents.
(d) Other Documents. On the date hereof and on each Settlement Date with
respect to any Terms Agreement, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may reasonably require for the
purpose of enabling such counsel to pass upon the issuance and sale of Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Agents and to
counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of the
Agents, any Terms Agreement) may be terminated by the Agents by notice to the
Company at any time and any such termination shall be without liability of any
party to any other party, except that the covenant regarding provision of any
earnings statement set forth in Section 4(h) hereof, the provisions concerning
payment of expenses under Section 10 hereof, the indemnity and contribution
agreements set forth in Sections 8 and 9 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery set forth in
Section 11 hereof and the provisions set forth under "Parties" of Section 15
hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
the Note to the Company, and, if the Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to the Agent. If such
failure occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its reasonable loss of the use of the funds for the
period such funds were credited to the Company's account.
20
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. (1) Each acceptance by
it of an offer for the purchase of Notes, and each delivery of Notes to one or
more Agents pursuant to a Terms Agreement, shall be deemed to be an affirmation
that the representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to the Agents pursuant
hereto are true and correct at the time of such acceptance or sale, as the case
may be, and an undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or its agent, or to the
Agent or Agents, of the Note or Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time); and (2) Subject to the provisions of Section 4(l) hereof, each time that
the Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for the establishment
of the terms of Notes or a change in the interest rates, maturity or price of
Notes or similar changes, and other than by an amendment or supplement that
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or there is filed with the Commission any
document incorporated by reference into the Prospectus (other than any Current
Report on Form 8-K relating exclusively to the issuance of debt securities under
the Registration Statement other than the Notes), such amendment, supplement or
filing, as the case may be, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and in
any certificate theretofore delivered to the Agents pursuant hereto are true and
correct at the time of such amendment, supplement or filing, as the case may be,
and an undertaking that such representations and warranties will be true and
correct as though made at and as of each such time.
(b) Subsequent Delivery of Certificates. Subject to the provisions of
Section 4(l) hereof, the Company shall furnish or cause to be furnished to the
Agents a certificate in form reasonably satisfactory to the Agents to the effect
that the statements contained in the certificate referred to in Section 5(b)
hereof that were last furnished to the Agents are true and correct at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate (1) upon each filing by the Company of an
Annual Report on Form 10-K or Quarterly Report on Form 10-Q with the Commission,
or (2) when the Registration Statement or the Prospectus is amended or
supplemented (other than by an amendment or supplement providing solely for the
establishment of the terms of Notes or a change in the interest rates, maturity
or price of Notes or similar changes, and other than by an amendment or
supplement that relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) or there is filed with the
Commission any document incorporated by reference into the Prospectus, if
reasonably requested by any Agent based on disclosure included in or omitted
from such amendment, supplement or incorporated document.
21
(c) Subsequent Delivery of Legal Opinions. Subject to the provisions of
Section 4(1) hereof, each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or supplement
providing solely for the establishment of the terms of Notes or a change in the
interest rates, maturity or price of the Notes or similar changes or solely for
the inclusion of additional financial information, and other than by an
amendment or supplement which relates exclusively to an offering of debt
securities under the Registration Statement other than the Notes) or there is
filed with the Commission any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K or Quarterly Report on
Form 10-Q, unless the Agents shall reasonably request based on disclosure
included or omitted from such Report) or (if required pursuant to the terms of a
Terms Agreement) the Company sells Notes to one or more Agents pursuant to a
Terms Agreement, the Company shall furnish or cause to be furnished forthwith to
the Agents and to counsel to the Agents a written opinion of each of the counsel
designated in Section 5(a)(1) and (2), or other counsel satisfactory to the
Agents dated the date of filing with the Commission of such supplement or
document, the date of effectiveness of such amendment, or the date of such sale,
as the case may be, in form reasonably satisfactory to the Agents, of
substantially the same tenor as the opinions referred to in Sections 5(a)(1) and
(2) hereof, but modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
opinions; or, in lieu of such opinions, counsel last furnishing such opinion to
the Agents shall furnish the Agents with a letter substantially to the effect
that the Agents may rely on such last opinion to the same extent as though it
was dated the date of such letter authorizing reliance (except that statements
in such last opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Subject to the provisions of
Section 4(1) hereof, each time that the Registration Statement or the Prospectus
shall be amended or supplemented to include additional financial information or
there is filed with the Commission any document incorporated by reference into
the Prospectus which contains additional financial information or (if required
pursuant to the terms of a Terms Agreement) the Company sells Notes to one or
more Agents pursuant to a Terms Agreement, the Company shall cause Price
Waterhouse, or other independent certified public accountants reasonably
satisfactory to the Agents, forthwith to furnish the Agents with a letter, dated
the date of filing with the Commission of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form reasonably satisfactory to the Agents, of substantially the same
tenor as the letter referred to in Section 5(c) hereof but modified to relate to
the Registration Statement and Prospectus, as amended and supplemented to the
date of such letter, and with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, PricewaterhouseCoopers
LLP, or other independent certified public accountants reasonably satisfactory
to the Agents, may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical nature is of such a
nature that, in the reasonable judgment of the Agents, such letter should cover
such other information.
22
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify
severally and hold harmless each Agent and each person, if any, who controls
each Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment or supplement thereto), the omission or alleged omission
therefrom of a material fact necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage, or and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all reasonable expenses whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by an
Agent to the extent authorized in Section 8(c)), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement or Prospectus (or any
amendments or supplements thereto), and provided further, however, that the
indemnity agreement contained in this subsection 8(a) shall not inure to the
benefit of any Agent with respect to any loss, liability, claim, damage or
expense arising from the sale of Notes by such Agent to any person if all of the
following occur: (x) such Agent has failed to send or give a copy of the
Prospectus (excluding documents incorporated by reference), as it may then have
been amended or supplemented, to that person at or prior to the time of written
confirmation of such sale; (y) the untrue statement or alleged untrue statement
of a material fact in or omission or alleged omission of a material fact from a
previous form of the Prospectus was corrected in the Prospectus, as then amended
or supplemented; and (z) such Agent shall have been notified as to such
amendment or supplement as set forth herein and the Company shall have delivered
copies of the Prospectus, as so amended or supplement, to such Agent.
23
(b) Indemnification of Company. Each Agent, severally and not jointly,
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section
8, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment or supplement thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use in the Registration
Statement (or any amendment or supplement thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party of such commencement shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may assume the defense of the indemnified party
by retaining counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. In
no event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
(d) Foreign Currency Judgments. The Company agrees to indemnify the Agents
against any loss incurred by the Agents as a result of any judgment or order
being given or made for the amount due under this Agreement and such judgment or
order being paid in a currency (a "Judgment Currency") other than U.S. dollars
as a result of any variation between (i) the rate of exchange at which U.S.
dollars are converted into the Judgment Currency for the purpose of such
judgment or order and (ii) the rate of exchange at which the applicable Agent is
able to purchase U.S. dollars with the amount of the Judgment Currency actually
received by such Agent. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could
24
be sought under this Section 8 or Section 9 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent does not contain a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party (unless such statement is agreed to by the indemnified party
in writing); provided, however, that in the event such settlement, compromise or
consent by the indemnifying party does not include an unconditional release of
each indemnified party from all liability arising out of any litigation,
investigation, proceeding or claim, the provisions of this section with respect
to indemnification shall continue and survive.
SECTION 9. Contribution.
If the indemnity agreement provided for in Section 8 hereof is for any
reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent pursuant to this Agreement to the date of such liability bears to the
total sales price from the sale of Notes sold to or through such Agent to the
date of such liability to which such losses, liabilities, claims, damages or
expenses relate and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
If, however, the allocation provided in the previous paragraph is not
permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect, not only the relative benefits received by the Company
on the one hand, and the applicable Agent(s), on the other hand, in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses but also the relative fault of the Company, on the
one hand, and the applicable Agent(s), on the other hand in connection with the
offering of the Notes that were the subject of the claim for indemnification.
The relative benefits received by the Company on the one hand and the Agent(s)
on the other shall be deemed to be in the same respective proportions as the
total proceeds from the sale of such Notes (before deducting expenses) received
by the Company bears to the total discount or commission received by the
applicable Agent(s) in respect thereof. The relative fault of the Company, on
the one hand, and the applicable Agent(s), on the other hand, shall be
determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
applicable Agent(s) and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Agents agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the applicable Agent(s) were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 9. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by
25
an indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any applicable untrue or alleged
untrue statement or omission or alleged omission (covered by Section 8(a)
hereof).
Notwithstanding the provisions of this Section 9, (i) no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. In addition, in connection with an offering of Notes
purchased from the Company by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Company.
For purposes of this Section 9, each person, if any, who controls an Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Agent, and each director of
the Company, each officer of the Company and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and the
Prospectus, and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The reasonable fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel and of any Calculation Agent;
(e) The reasonable fees and disbursements of counsel to the Agents incurred
from time to time in connection with the transactions contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing
fees, and the reasonable
26
fees and disbursements of counsel to the Agents in connection therewith and
in connection with the preparation of any Blue Sky survey;
(g) The printing and delivery to the Agents in quantities as hereinabove
stated of copies of the Registration Statement, and any amendments thereto,
and of the Prospectus, and any amendments or supplements thereto;
(h) The preparation, printing, reproducing and delivery to the Agents of
copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agents incurred
with the approval of such expense by the Company;
(l) The cost of preparing, and providing any CUSIP or other identification
numbers for, the Notes; and
(m) The fees and expenses of any Depository (as defined in the Indenture)
and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties, indemnities and agreements contained in
this Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of the Agents, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any Terms
Agreement) may be terminated for any reason, at any time by either the Company
or the Agents on the giving of 30 days' written notice of such termination to
the other party hereto; provided, however, that the termination of this
Agreement by an Agent shall terminate this Agreement only between such Agent and
the Company and the Company's notice of termination as to any one Agent shall
terminate this Agreement only between itself and such Agent.
(b) Termination of a Terms Agreement. The Agent or Agents party to a Terms
Agreement may terminate any Terms Agreement, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto (i) if there
has been, since the date of such Terms Agreement or since the respective dates
as of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if
27
there shall have occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Agent or Agents
party to such Terms Agreement (after consultation with the Company),
impracticable to market the Notes subject to such Terms Agreement or enforce
contracts for the sale of such Notes, or (iii) if trading in any securities of
the Company has been suspended by the Commission or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium shall have been
declared by federal, California or New York authorities or if a banking
moratorium shall have been declared by the relevant authorities in the country
or countries of origin of any foreign currency or currencies in which the Notes
subject to such Terms Agreement are denominated or payable, or (iv) if the
rating assigned by any nationally recognized securities rating agency to any
debt securities of the Company as of the date of any Terms Agreement shall have
been lowered since that date or if any such rating agency shall have publicly
announced since that date that it has placed any debt securities of the Company
on what is commonly termed a "watch list" for possible downgrading, or (v) if
there shall have come to the Agent's or Agents' attention any facts that would
cause such Agent or Agents to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Notes subject to such Terms
Agreement, contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances existing at the time of such delivery, not misleading.
(c) General. In the event of any such termination, no party will have any
liability to any other party hereto, except that (i) each Agent shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof to the extent permitted by Section 1(c), (ii) if at the time
of termination (a) the Agents shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (b) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or its agent of the Note or Notes relating thereto has not occurred,
the obligations set forth in Section 5 hereof and the covenants set forth in
Sections 4 and 7 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be (provided, however, that, except as provided in
clause (iii) below, the Company's obligations pursuant to Sections 4 and 7
hereof shall in any event terminate no later than the date that is thirty days
(nine months with respect to subsections (e) and (j) of Section 4 hereof) after
the time of such termination), and (iii) the covenant set forth in Section 4(h)
hereof, the indemnity and contribution agreements set forth in Sections 8 and 9
hereof, and the provisions of Sections 10, 11 and 15 hereof shall remain in
effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, by telecopier or by telegram, and any such notice shall be effective when
received at the address specified below.
28
If to the Company:
Toyota Motor Credit Corporation
19001 South Western Avenue NF10
Torrance, California 90501
Attention: Corporate Manager-Treasury
Telecopy: (310) 468-6194
If to Merrill Lynch:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
4 World Financial Center, Floor 15
New York, New York 10080
Attention: Transactions Management Group
Scott Primrose
Telecopy: (212) 449-2234
If to Citigroup:
Citigroup Global Markets Inc.
Attention: Medium-Term Note Department
388 Greenwich Street
New York, NY 10013
Telephone: (212) 816-8134
Telecopy: (212) 816-7913
If to CSFB:
Credit Suisse First Boston LLC
11 Madison Avenue
New York, New York 10010-3629
Attention: Short and Medium-Term Finance
Telephone: (212) 325-7198
Telecopy: (212) 743-5825
If to J.P. Morgan:
J.P. Morgan Securities Inc.
270 Park Avenue, 7th Floor
New York, New York 10017
Attention: Transaction Execution Group
Telecopy: (212) 430-6407
If to Morgan Stanley:
29
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telecopy: (212) 761-0780
With a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 34th Floor
New York, New York 10036
Attn: Peter Cooper, Investment
Banking Information Center
Telephone: (212) 761-8385
Telecopy: (212) 761-0260
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the Agents
and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 8 and
9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase.
SECTION 16. Counterparts.
This Agreement may be executed in several counterparts, each of which shall
be deemed an original hereof.
30
SECTION 17. Captions.
The captions in this Agreement are for convenience of reference only and
shall not define or limit any of the terms or the provisions hereof.
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
31
Very truly yours,
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ George E. Borst
------------------------------------
Name: George E. Borst
Title: President and Chief Executive Officer
S-1
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott Primrose
------------------------------------------
Authorized Signatory
S-2
CITIGROUP GLOBAL MARKETS INC.
By: /s/ William Oliva
------------------------------------------
S-3
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Helena M. Wilner
------------------------------------------
Helena M. Wilner
Director
S-4
J.P. MORGAN SECURITIES INC.
By: /s/ Carl J. Mehldau Jr.
------------------------------------------
Authorized Signatory
Carl J. Mehldau Jr.
Vice President
S-5
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
------------------------------------------
Michael Fusco
Executive Director
S-6
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agents and
the Company pursuant to each Terms Agreement:
Principal Amount: $__________
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: ____%
Agent's Discount or Commission:
Settlement Date and Time:
Additional Terms:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
Day Count Convention:
[ ] 30/360 for the period from ______ to ______.
[ ] Actual/360 for the period from ______ to ______.
[ ] Actual/Actual for the period from ______ to ______.
If Floating Rate Note:
Interest Calculation:
[ ] Regular Floating Rate Note
[ ] Floating Rate/Fixed Rate Note Fixed Rate Commencement
Date:
Fixed Interest Rate:
[ ] Inverse Floating Rate Note
Fixed Interest Rate:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Regular Record Dates:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
Day Count Convention:
[ ] Actual/360 for the period from ______ to ______.
[ ] Actual/Actual for the period from ______ to ______.
[ ] Other:
Exhibit A - 1
If Redeemable:
Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage
Reduction:
If Repayable:
Optional Repayment Dates:
Repayment Price:
Currency:
Specified Currency (if other than U.S. dollars)
Minimum Denominations:
Also, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement. Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement. Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement. Stand-off Agreement pursuant to Section 4(k) of the
Distribution Agreement.
Exhibit A - 2
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall pay
the related Agent, on a discount basis, a commission for the sale of each Note
by such Agent equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .175%
From 2 years to less than 3 years .200%
From 3 years to less than 4 years .275%
From 4 years to less than 5 years .325%
From 5 years to less than 6 years .375%
From 6 years to less than 7 years .425%
From 7 years to less than 10 years .500%
From 10 years to less than 15 years .625%
From 15 years to less than 20 year .700%
From 20 years to 30 years .750%
*more than 30 years
*To be negotiated at time of sale between the related Agent and the Company
Schedule A - 1