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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934.
Date of Report (Date of Earliest Event Reported):
MARCH 9, 1994
TOYOTA MOTOR CREDIT CORPORATION
[Exact name of registrant as specified in its charter)
CALIFORNIA 1-9961 95-3775816
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation) No.)
19001 SOUTH WESTERN AVENUE
TORRANCE, CALIFORNIA 90509
(Address of Principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(310) 787-1310
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
No. Description
- --------- -----------
<C> <S>
1.1(a) Distribution Agreement dated October 17, 1991 between Toyota
Motor Credit Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Shearson Lehman Brothers Inc.
1.1(b)(1) Amendment No.1 to Distribution Agreement dated September 1, 1992,
between Toyota Motor Credit Corporation, Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Shearson Lehman Brothers
Inc.
1.1(c) Amendment No. 2 to Distribution Agreement dated March 9, 1994
between Toyota Motor Credit Corporation, Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs
& Co., J.P. Morgan Securities Inc. and Lehman Brothers, Lehman
Brothers Inc.
4.2(a) Form of Fixed Rate Global Medium-Term Note.
4.2(b) Form of Floating Rate Global Medium-Term Note.
- ---------------------
<FN>
(1) Incorporated herein by reference to Exhibit 1.1(a) filed with TMCC's
Current Report on Form 8-K dated September 21, 1992.
</TABLE>
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EXHIBIT 1.1(a)
EXECUTION COPY
TOYOTA MOTOR CREDIT CORPORATION
Medium-Term Notes Due From 9 Months or More
From Date of Issue
DISTRIBUTION AGREEMENT
October 17, 1991
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower, 23rd Floor
World Financial Center
New York, New York 10281-1323
LEHMAN BROTHERS
Shearson Lehman Brothers Inc.
American Express Tower
World Financial Center
New York, New York 10281-1218
Dear Sirs:
Toyota Motor Credit Corporation, a California corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and Lehman Brothers,
Shearson Lehman Brothers Inc. (including its affiliate, Lehman Special
Securities Incorporated) ("Lehman Brothers" and, together with Merrill Lynch,
the "Agents") with respect to the issue and sale by the Company of its
Medium-Term Notes described herein (the "Notes"). The Notes are to be issued
pursuant to an indenture (as the same may be amended or restated from time to
time, the "Indenture") dated as of August 1, 1991, as amended by the First
Supplemental Indenture, dated as of October 1, 1991 between the Company, The
Chase Manhattan Bank, N.A. and Bankers Trust Company. Bankers Trust Company
will act as trustee with respect to the Notes (the "Trustee").
As of the date hereof, the Company has authorized the issuance and sale
of up to $1,000,000,000 (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 initial offering price of Notes by the Company directly or through
the Agents pursuant to the terms of this Agreement. It is understood,
however, that the Company may from time to time,
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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. 33-42854) for the
registration of debt securities, including the Notes, under the Securities Act
of 1933 (the "1933 Act") and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has
been declared effective by the Commission and the Indenture has been qualified
under the Trust Indenture Act of 1939 (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.
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SECTION 1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT OF AGENTS. Subject to the terms and conditions
stated herein, the Company hereby appoints the Agents, except as otherwise
provided in this Section 1(a), as the exclusive agents for the purpose of
soliciting purchases of the Notes from the Company by others and agrees that,
except as otherwise contemplated herein, whenever the Company determines to
sell Notes directly to one or more Agents as principal for resale to others,
it will enter into a Terms Agreement (as hereafter defined) relating to each
such sale in accordance with the provisions of Section 3(b) hereof if
requested by such Agent. The Company agrees that, except as otherwise
provided in this Section 1(a), during the period the Agents are acting as the
Company's agents hereunder, the Company will not engage any other party to
assist in the placement of the Notes (other than any person or entity which,
by executing a counterpart of this Agreement, becomes an Agent hereunder).
Notwithstanding the foregoing, the Company reserves the right to (i) appoint
additional agents for the purpose of assisting in the placement of the Notes
during the term of this Agreement under the terms of an agreement
substantially identical to this Agreement (provided that the commission to be
paid to such additional agents in connection with the sale of any Note shall
be the applicable commission determined pursuant to Section 3(a) hereof), and
(ii) sell Notes to one or more underwriters in a discrete underwritten
transaction or transactions so long as such underwriter or underwriters shall
execute an agreement substantially identical to this Agreement relating to
such underwritten transaction or transactions, provided that no such agreement
will appoint any such underwriter an agent under this Agreement except as
relates to the related transaction or transactions. The Company shall give
prompt written notice to the Agents of the occurrence of an event described in
clause (i) or (ii) above. As used herein, the term "Agent", in addition to
Merrill Lynch and Lehman Brothers, 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
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responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. Each Agent will communicate
to the Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as
a whole or in part, and any such rejection shall not be deemed a breach of the
Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
(c) SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPALS. In soliciting
purchases of the Notes on behalf of the Company, unless otherwise specified
pursuant to the terms hereof, each Agent shall act solely as agent for the
Company and not as principal. Each Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company.
No Agent shall have any liability to the Company in the event any such
purchase is not consummated for any reason. No Agent shall have any
obligation to purchase Notes from the Company as principal, but may agree from
time to time to purchase Notes as principal. Any such purchase of Notes by an
Agent as principal shall be made pursuant to a Terms Agreement in accordance
with Section 3(b) hereof if requested by such Agent.
(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.
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 or price 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
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<PAGE>
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. The Registration Statement, at the time
it became effective, did not, and at each time thereafter at which any
amendment to the 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, 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 and Qualification under the 1939 Act on Form T-1.
(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.
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(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 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
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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
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) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(vii) NO SIGNIFICANT SUBSIDIARIES. No subsidiary of the Company
constitutes a "significant subsidiary" as defined in Rule 405 of Regulation
C under the 1933 Act.
(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 in accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or by general equity principles.
(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 in
accordance with their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally or by general equity principles, 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. The
Company is not 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 is a party or by which
it may be bound, or to which any of the property or assets of the Company
is subject, which violation or default would materially adversely affect
the business or financial condition of the Company and its subsidiaries
considered as
7
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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 pursuant to, any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company is a
party or by which it may be bound, or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or, to
the best knowledge of the Company, any law, administrative regulation or
administrative or court decree, and no consent, approval, authorization,
order or decree of any court or governmental agency or body of the United
States is required for the consummation by the Company of the transactions
contemplated by this Agreement, any Terms Agreement or the Indenture,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or as may be
required by state securities or Blue Sky laws.
(xi) LEGAL PROCEEDINGS; CONTRACTS. Except as set forth in the
Registration Statement, there is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against the Company or any
of its subsidiaries which is required to be disclosed in the Registration
Statement or which might in the opinion of the Company result in any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof or which might materially
and adversely affect the consummation of this Agreement or any Terms
Agreement; all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
its business, are, considered in the aggregate, not material; and there are
no contracts or documents of the Company or any of its subsidiaries which
are required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
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(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) RATING OF THE NOTES. The Notes are rated "Aaa" by Moody's
Investors Service, Inc. and "AAA" by Standard & Poor's Corporation.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
director or officer of the Company and delivered to the Agents or to counsel
to the Agents in connection with an offering of Notes or the sale of Notes to
one or more of the Agents as principal shall be deemed a representation and
warranty by the Company to the Agents as to the matters covered thereby on the
date of such certificate and at each Representation Date subsequent thereto.
SECTION 3. SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPALS.
(a) SOLICITATIONS AS AGENTS. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions
herein set forth, the Agents agree, when acting as agents of the Company, to
use their reasonable efforts to solicit offers to purchase the Notes upon the
terms and conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation
of purchases from the Company until such time as the Company has advised the
Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount or otherwise as agreed to by the Company and the Agents, equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by such Agent as set forth in Schedule A
hereto; provided, however, that the Company shall only be
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obligated to pay one such fee with respect to any particular Note so sold.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the Agents and set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance
by the Company of an offer for the purchase of Notes. Except as may be
otherwise provided in such supplement to the Prospectus, the Notes will be
issued in denominations of $1,000 and integral multiples thereof. All Notes
sold through the Agents as agents will be sold at 100% of their principal
amount unless otherwise agreed to by the Company and the Agents.
(b) PURCHASES AS PRINCIPALS. Each sale of Notes to one or more
Agents as principal shall be made in accordance with the terms contained
herein and, if requested by such Agent, pursuant to a separate agreement which
will provide for the sale of such Notes to, and the purchase and reoffering
thereof by, such Agent or Agents. Each such separate agreement (which may be
an oral agreement) between one or more Agents and the Company, is herein
referred to as a "Terms Agreement". Unless the context otherwise requires,
each reference contained herein to "this Agreement" shall be deemed to include
any Terms Agreement between the Company and one or more Agents. Each such
Terms Agreement, whether oral or in writing, shall be with respect to such
information (as applicable) as is specified in Exhibit A hereto. An Agent's
commitment to purchase Notes as principal pursuant to any Terms Agreement or
otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by each Agent
pursuant thereto, the price to be paid to the Company for such Notes (which,
if not so specified in a Terms Agreement, shall be at a discount equivalent to
the applicable commission set forth in Schedule A hereto), the time and place
of delivery of and payment for such Notes, any provisions relating to rights
of, and default by, purchasers acting together with the Agents in the
reoffering of the Notes, and such other provisions (including further terms of
the Notes) as may be mutually agreed upon. The Agents may utilize a selling
or dealer group in connection with the resale of the Notes purchased. Such
Terms Agreement shall also specify whether or not any of the officer's
certificate, opinions of counsel or comfort letter specified in Sections 7(b),
7(c) and 7(d) hereof shall be required to be delivered by the Company on the
related Settlement Date.
(c) ADMINISTRATIVE PROCEDURES. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time
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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, 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 immediately 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, and (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.
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, 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 or price of Notes or other
similar changes or an
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amendment or supplement which relates exclusively to an offering of debt
securities under the Registration Statement other than the Notes) whether by
the filing of documents pursuant to the 1934 Act (other than any Current
Report on Form 8-K relating exclusively to the issuance of debt securities
under the Registration Statement other than the Notes), the 1933 Act or
otherwise, and will furnish the Agents with copies of any such amendment or
supplement or other documents proposed to be filed or prepared a reasonable
time in advance of such proposed filing or preparation, as the case may be,
and will not file any such amendment or supplement in a form to which you or
your counsel shall reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) (other than an amendment or
supplement which relates exclusively to an offering of debt securities under
the Registration Statement other than the Notes) as the 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.
(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 Agents and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the Commission on the fifth business day after the date on which
such Pricing Supplement is first used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as
otherwise provided in subsection (1) of this Section, if at any time during
the term of this Agreement any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel to the
Agents or counsel for the Company, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein not misleading in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser, or 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
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with the requirements of the 1933 Act or the 1933 Act Regulations, immediate
notice shall be given, and confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Notes in the Agents' capacity as agents
and to cease sales of any Notes the Agents may then own as principal pursuant
to a Terms Agreement, and the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant
to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct
such untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION.
Except as otherwise provided in subsection (1) of this Section, on or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, 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 explanations as
shall be necessary for an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Regulations.
(g) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION.
Except as otherwise provided in subsection (1) of this Section, on or prior to
the date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of
the Company for the preceding fiscal year, the Company shall cause the
Registration Statement and the Prospectus to be amended, whether by the filing
of documents pursuant to the 1934 Act, the 1933 Act or otherwise, to include
or incorporate by reference such audited financial statements and the report
or reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto, as well as
such other information and explanations as shall be necessary for an
understanding of such financial statements or as shall be required by the 1933
Act or the 1933 Act Regulations.
(h) EARNINGS STATEMENTS. The Company, by applying the provisions of
Rule 158 under the 1933 Act, will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby,
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an earnings statement (in form complying with the provisions of Rule 158 under
the 1933 Act) covering each twelve month period beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in such Rule 158) of the Registration Statement
with respect to each sale of Notes.
(i) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such
qualifications 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 the Prospectus, will 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 are made, not misleading.
(k) STAND-OFF 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
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 the Notes that are to be sold pursuant to such Terms Agreement and
securities sold in any Euromarket financing and commercial paper in the
ordinary course
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of business), except as may otherwise be provided in any such Terms Agreement.
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (a), (b), (c), (e), (f),
(g) or (j) of this Section or the provisions of Section 7 hereof during any
period from the time (i) the Agents shall have received written notification
from the Company to suspend solicitation of purchases of the Notes in their
capacity as agents and (ii) the earlier of the date on which no Agent shall
then hold any Notes as principal purchased pursuant to a Terms Agreement and
the date which is thirty days (nine months with respect to subsections (e) and
(j) of this Section) from the date on which the Agents shall have received
written notice from the Company to suspend solicitation of purchases of the
Notes, to the time the Company shall determine that solicitation of purchases
of the Notes should be resumed or shall subsequently enter into a new Terms
Agreement with the Agents.
(m) USE OF PROCEEDS. The net proceeds from the sale of Notes will
be used by the Company as described in the Prospectus.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to solicit offers to purchase the Notes as
agents of the Company, the obligations of any purchasers of the Notes sold
through the Agents as agents, and any obligation of the Agents to purchase
Notes as principals pursuant to a Terms Agreement or otherwise will be subject
to the accuracy of the representations and warranties on the part of the
Company herein contained and to the accuracy of the statements of the
Company's officers 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 O'Melveny & Myers,
counsel for the Company, to the effect that:
(i) The Company is a corporation duly organized, existing and in
good standing under the laws of the State of California.
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(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.
(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, has been duly executed
and delivered by the Company and constitutes a legally valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally; and the Indenture has been qualified
under the 1939 Act. Such counsel may state, however, that
enforceability of the Indenture is subject to the effect 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.
(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, 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 and, 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 limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally; and the Notes will be entitled to the
benefits of the Indenture. Such counsel may state, however, that
enforceability of the Notes is subject to the effect of general
principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and
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fair dealing and the possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a proceeding
in equity or at law.
(vi) The Registration Statement has been declared effective
under the 1933 Act and, to their knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(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 and Qualification
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.
(ix) The information in the Prospectus under the caption
"Description of Notes", "Description of Debt Securities", and
information, if any, 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 them 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.
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(2) The opinion of William A. Plourde, Jr., Esq., General Counsel--
Business Law of the Company, to the effect that:
(i) To such counsel's knowledge, the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such qualification
and in which the failure to so qualify and be in good standing would
materially adversely affect its business or financial condition.
(ii) 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, other than those disclosed
therein, and all pending legal or governmental proceedings to which
the Company is a party or to which any of its property is subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(iii) 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.
(iv) 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
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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, result
in any violation of any applicable law, administrative regulation or
administrative or court decree.
(v) 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.
(vi) 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 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.
(3) OPINION OF COUNSEL TO THE AGENTS. The opinion of Brown & Wood,
counsel to the Agents, covering the matters referred to in subparagraph (1)
under the subheadings (i) and (iii) through (vii), inclusive, above.
(4) In giving their opinions required by subsection (a)(1) and
(a)(3) of this Section, O'Melveny & Myers and Brown & Wood shall each
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 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 (to the extent deemed to be incorporated by reference in the
Registration Statement and Prospectus), and 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
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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 financial statements and other financial and
statistical data included or incorporated by reference in such Registration
Statement or Prospectus.
(b) OFFICERS' CERTIFICATE. At the date hereof the Agents shall have
received a certificate of the President or Vice President and the chief
financial or chief accounting officer of the Company, dated as of the date
hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or since
the date of any Terms Agreement, there has not been any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries, considered
as one enterprise, whether or not arising in the ordinary course of business,
(ii) the other representations and warranties of the Company contained in
Section 2 hereof are true and correct with the same force and effect as though
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 Price Waterhouse, 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.
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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 an 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.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
acceptance by it of an offer for the purchase of Notes, and each delivery of
Notes to one or more Agents pursuant to a Terms Agreement, shall be deemed to
be an affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore delivered to
the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of
delivery to the purchaser or its agent, or to the Agent or Agents, of the Note
or Notes relating to such acceptance or sale, as the case may be, as though
made at and as of each such time (and it is understood that such
representations and
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warranties shall relate to the Registration Statement and Prospectus as
amended and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Subject to the provisions
of Section 4(l) hereof, each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of or a change in the
interest rates, maturity or price of Notes or similar changes, and other than
by an amendment or supplement which relates exclusively to an offering of debt
securities under the Registration Statement other than the Notes) or there is
filed with the Commission any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating exclusively to
the issuance of debt securities under the Registration Statement other than
the Notes) or (if required pursuant to the terms of a Terms Agreement) the
Company sells Notes to one or more Agents pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished to the Agents forthwith a
certificate dated the date of filing with the Commission of such supplement or
document, the date of effectiveness of such amendment, or the date of such
sale, as the case may be, in form reasonably satisfactory to the Agents to the
effect that the statements contained in the certificate referred to in Section
5(b) hereof which were last furnished to the Agents are true and correct at
the time of such amendment, supplement, filing or sale, as the case may be, as
though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to such time) or, in lieu of such certificate, a certificate
of the same tenor as the certificate referred to in said Section 5(b),
modified as necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Subject to the
provisions of Section 4(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 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
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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 O'Melveny & Myers and
William A. Plourde, Jr., Esq. General Counsel -- Business Law to the Company,
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 (a)(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(l) 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, Price Waterhouse, 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,
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financial or statistical nature is of such a nature that, in the reasonable
judgment of the Agents, such letter should cover such other information.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify
severally and hold harmless each Agent and each person, if any, who controls
each Agent within the meaning of Section 15 of the 1933 Act 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 thereto), or 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 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 expense whatsoever, as
incurred (including the reasonable fees and disbursements of counsel
chosen by an Agent), 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
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with written information furnished to the Company by the Agents expressly for
use in the Registration Statement (or any amendment thereto), and provided
further, however, that the indemnity agreement contained in this subsection
8(a) shall not inure to the benefit of any Agent with respect to any loss,
liability, claim, damage or expense arising from the sale of Notes by such
Agent to any person if all of the following occur: (x) such Agent has failed
to send or give a copy of the Prospectus (excluding documents incorporated by
reference), as it may then have been amended or supplemented, to that person
at or prior to the time of written confirmation of such sale; (y) the untrue
statement or alleged untrue statement of a material fact in or omission or
alleged omission of a material fact from a previous form of the Prospectus was
corrected in the Prospectus, as then amended or supplemented; and (z) such
Agent shall have been notified as to such amendment or supplement as set forth
herein and the Company shall have delivered copies of the Prospectus, as so
amended or supplement, to such Agent.
(b) INDEMNIFICATION OF COMPANY. Each Agent severally 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 against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment 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 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
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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.
SECTION 9. CONTRIBUTION.
In order to provide for just and equitable contribution in circumstances
in which 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, 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
26
<PAGE>
misrepresentation. For purposes of this Section, each person, if any, who
controls an Agent within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as an Agent, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 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 all
amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The reasonable fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel and of any
Calculation Agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing
fees, and the reasonable fees and disbursements of counsel to the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment 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;
27
<PAGE>
(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 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,
28
<PAGE>
whether or not arising in the ordinary course of business, or (ii) if there
shall have occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Agent or
Agents party to such Terms Agreement (after consultation 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, (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
29
<PAGE>
Sections 4 and 7 hereof shall in any event terminate no later than the date
that is thirty days (nine months with respect to subsections (e) and (j) of
Section 4 hereof) after the time of such termination), and (iii) the covenant
set forth in Section 4(h) hereof, the indemnity and contribution agreements
set forth in Sections 8 and 9 hereof, and the provisions of Sections 10, 11
and 15 hereof shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail
or by telex, by telecopier or by telegram, and any such notice shall be
effective when received at the address specified below.
If to the Company:
Toyota Motor Credit Corporation
19001 S. Western Avenue A105
Torrance, California 90509
Attention: Assistant Treasurer
Telecopy: (213) 618-7804
If to Merrill Lynch:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower, 23rd Floor
World Financial Center
New York, New York 10281-1323
Attention: MTN Products Management
J. Patrick Hannon
Telecopy: (212) 449-2234
If to Lehman Brothers:
Shearson Lehman Brothers Inc.
American Express Tower
World Financial Center
9th Floor
New York, New York 10281-1218
Attention: Medium-Term Note Product
Management
Telecopy: (212) 619-7165
30
<PAGE>
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the parties hereto and respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Notes shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original hereof.
SECTION 17. CAPTIONS.
The captions in this Agreement are for convenience of reference only and
shall not define or limit any of the terms or the provisions hereof.
31
<PAGE>
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.
Very truly yours,
TOYOTA MOTOR CREDIT CORPORATION
By: /S/ WOLFGANG JAHN
---------------------------
Name: Wolfgang Jahn
Title: Vice President
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /S/ C.F. NOVAK
------------------------
Authorized Signatory
SHEARSON LEHMAN BROTHERS INC.
By: /S/ ROBERT R. LIND
--------------------------
Name: Robert R. Lind
Title: Managing Director
32
<PAGE>
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:
A-1
<PAGE>
Day Count Convention:
[ ] Actual/360 for the period from _______
to _______.
[ ] Actual/Actual for the period from _____
____ to _________.
[ ] Other:
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.
A-2
<PAGE>
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:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
<S> <C>
From 9 months to less than 1 year.............. .125%
From 1 year to less than 18 months............. .150%
From 18 months to less than 2 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 years............ .700%
From 20 years to 30 years...................... .750%
<FN>
* More than 30 years
* To be negotiated at time of sale between the related Agent and the
Company.
</TABLE>
<PAGE>
EXHIBIT 1.1(c)
EXECUTION COPY
TOYOTA MOTOR CREDIT CORPORATION
19001 South Western Avenue
Torrance, California 90501
March 9, 1994
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower, 23rd Floor
World Financial Center
New York, New York 10281-1323
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10154
LEHMAN BROTHERS
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10281-1200
Re: Amendment No. 2 to Distribution
Agreement dated October 17, 1991
--------------------------------
Dear Sirs:
Reference is hereby made to the Distribution Agreement, dated October 17,
1991 (the "Distribution Agreement"), as amended by Amendment No. 1 thereto
("Amendment No. 1") dated September 1, 1992, each among Toyota Motor Credit
Corporation, a California corporation (the "Company") and Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") and Lehman Brothers Inc. (formerly
"Shearson Lehman Brothers Inc., and including its affiliate Lehman Special
Securities Inc.) as Agents with respect to the issue and sale by the Company of
its Medium-Term Notes described therein. The Distribution Agreement, as amended
by
<PAGE>
Amendment No. 1 and this Amendment No. 2, herein collectively, the "Program
Agreement." Terms not otherwise defined herein shall have the meanings ascribed
to them in the Distribution Agreement.
1. ADDITIONAL AGENTS. The Company hereby appoints each of Goldman, Sachs
& Co. ("Goldman Sachs") and J.P. Morgan Securities Inc. ("J.P. Morgan") as
Agents pursuant to the terms and conditions of the Program Agreement, and
Goldman Sachs and J.P. Morgan hereby accept their respective appointments
pursuant to such terms and conditions. Such newly appointed Agents are in
addition to Merrill Lynch and Lehman Brothers.
2. ADDITIONAL AUTHORIZED NOTES. Pursuant to the second introductory
paragraph of the Distribution Agreement, the Company hereby delivers to each of
you an original copy of the Officers' Certificate delivered to the Trustee on
the date hereof pursuant to Section 301 of the Indenture authorizing the
issuance of $4,000,000,000 aggregate principal amount of Notes, in addition to
$90,520,000 aggregate principal amount of Notes previously authorized for
issuance but remaining unissued as of the date hereof; provided that, in
calculating the aggregate principal amount of Notes authorized, with respect to
Notes issued at a discount to face, the initial offering price shall be used,
and with respect to Notes issued at a premium to face, the face amount of such
Notes shall be used.
3. OPINIONS OF COUNSEL. Notwithstanding the terms of Section 5(a) of the
Distribution Agreement, the opinion specified in clauses (i) through (viii) and
clause (ix) (insofar as it relates to information in the Prospectus under the
captions "Description of Notes", and "Description of Securities") and clause (x)
of Section 5(a)(1) and the statement specified in Section 5(a)(4) required to be
delivered by O'Melveny & Myers, shall instead be delivered by William A.
Plourde, Jr., Esq., General Counsel of the Company, or such other counsel as
shall be acceptable to the Agents, at such times and to such parties as shall be
specified in the Distribution Agreement.
The opinions specified in clause (ix) (insofar as it relates to
information in the Prospectus under the caption "United States taxation") of
Section 5(a) and in Section 5(a)(2) of the Distribution Agreement shall continue
to be delivered by O'Melveny & Myers and William A. Plourde, Jr., Esq.,
respectively, and the opinion specified in Section 5(a)(3) and the statement
specified in 5(a)(4), shall continue to be delivered by Brown & Wood, or such
other counsel as shall be acceptable to the Agents, at such times and to such
parties as shall be specified in the Distribution Agreement.
Your signature below will signify your acknowledgement as of the date
hereof of the Company's appointment of you as Agents with respect to the above
referenced $4,090,520,000 aggregate
2
<PAGE>
principal amount of Notes (calculated as aforesaid) pursuant to the terms and
conditions of the Program Agreement.
This Amendment No. 2 to the Distribution Agreement may be executed in
several counterparts, each of which shall be deemed an original hereof.
Very truly yours,
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ Wolfgang Jahn
______________________________
Name: Wolfgang Jahn
Title: Group Vice President
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose
_________________________________
Name: Scott G. Primrose
Authorized Signatory
/s/ Goldman, Sachs & Co.
.................................
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
By: /s/ John Kaplan
_________________________________
Name: John Kaplan
Title: Vice President
LEHMAN BROTHERS INC.
By: /s/ Herbert McDade
_________________________________
Name: Herbert McDade
Title: Managing Director
3
<PAGE>
EXHIBIT 4.2(a)
FIXED RATE GLOBAL MEDIUM-TERM NOTE
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
REGISTERED PRINCIPAL OR FACE AMOUNT
No. FX CUSIP No. _______________ $_______________________
TOYOTA MOTOR CREDIT CORPORATION
MEDIUM-TERM NOTE
(Fixed Rate)
_______________________________________________________________________________
* * * [ ] CHECK IF A PRINCIPAL INDEXED NOTE * * *
IF CHECKED, CALCULATION AGENT: __________________
If this is a Principal Indexed Note, references herein to "principal" shall be
deemed to be the face amount hereof, except that the amount payable upon
Maturity of this Note shall be determined in accordance with the formula or
formulas set forth below or in an attached Addendum hereto.
_______________________________________________________________________________
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INTEREST PAYMENT DATES:
<PAGE>
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
TOYOTA MOTOR CREDIT CORPORATION, a California corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of
DOLLARS, or if this is a Principal Indexed Note, the principal amount as
determined in accordance with the terms set forth under "Other Provisions" above
and/or in the Addendum attached hereto, on the Stated Maturity Date specified
above (except to the extent
2
<PAGE>
redeemed or repaid prior to the Stated Maturity Date), and to pay interest on
the principal or face amount as set forth above at the Interest Rate per annum
specified above, until the principal hereof is paid or duly made available for
payment. Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
The Company will pay interest on each Interest Payment Date specified
above, commencing on the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Stated Maturity Date or any
Redemption Date or Optional Repayment Date (if specified as repayable at the
option of the Holder in an attached Addendum) (the date of each such Stated
Maturity Date, Redemption Date and Optional Repayment Date and the date on which
principal or an installment of principal is due and payable by declaration of
acceleration pursuant to the Indenture being referred to hereinafter as a
"Maturity" with respect to principal payable on such date); PROVIDED, HOWEVER,
that if the Original Issue Date is between a Regular Record Date (as defined
below) and the next succeeding Interest Payment Date, interest payments will
commence on the second Interest Payment Date succeeding the Original Issue Date.
Except as provided above, interest payments will be made on the Interest Payment
Dates shown above. Unless otherwise specified above, the "Regular Record Date"
shall be the date 15 calendar days (whether or not a Business Day) prior to the
applicable Interest Payment Date. Interest on this Note will accrue from and
including the most recent Interest Payment Date to which interest has been paid
or duly provided for or, if no interest has been paid, from the Original Issue
Date specified above, to, but excluding such Interest Payment Date. If the
Maturity or an Interest Payment Date falls on a day which is not a Business Day
as defined below, the payment due on such Maturity or Interest Payment Date will
be paid on the next succeeding Business Day with the same force and effect as if
made on such Maturity or Interest Payment Date, as the case may be, and no
interest shall accrue with respect to such payment for the period from and after
such Maturity or Interest Payment Date. The interest so payable and punctually
paid or duly provided for on any Interest Payment Date will as provided in the
Indenture be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such Interest Payment Date. Any such interest which is payable,
but not punctually paid or duly provided for on any Interest Payment Date
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on such Regular Record Date, and may be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Note not less than 10 days prior to such Special Record Date, or may be
paid at any time in
3
<PAGE>
any other lawful manner, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made at the
Office or Agency of the Company maintained by the Company for such purpose, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; PROVIDED, HOWEVER, that
at the option of the Company, payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register; and PROVIDED, FURTHER, that AT THE OPTION OF THE COMPANY, the
Holder of this Note may be entitled to receive payments of principal of and
interest on this Note by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Trustee not
less than 15 days prior to the applicable payment date.
Unless the certificate of authentication hereon has been executed by or on
behalf of Bankers Trust Company, the Trustee for this Note under the Indenture,
or its successor thereunder, by the manual signature of one of its authorized
officers, this Note shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
This Note is one of a duly authorized series of Securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes (the
"Notes"). The Notes are issued and to be issued under an Indenture dated as of
August 1, 1991 as amended and supplemented by the First Supplemental Indenture
dated as of October 1, 1991 (herein called the "Indenture") between the Company,
The Chase Manhattan Bank, N.A. and Bankers Trust Company, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights thereunder of the Company, the Trustee (as defined below)
and the Holders of the Notes and the terms upon which the Notes are to be
authenticated and delivered. Bankers Trust Company shall act as Trustee with
respect to the Notes (herein called the "Trustee", which term includes any
successor Trustee with respect to the Notes, under the Indenture). The terms of
individual Notes may vary with respect to interest rates or interest rate
formulas, issue dates, maturity, redemption, repayment, currency of payment and
otherwise.
Except as otherwise provided in the Indenture, the Notes will be issued in
global form only registered in the name of The Depository Trust Company (the
"Depositary") or its nominee. The Notes will not be issued in definitive form,
except as otherwise provided in the Indenture, and ownership of the Notes shall
be maintained in book entry form by the Depositary for the accounts of
participating organizations of the Depositary.
4
<PAGE>
This Note is not subject to any sinking fund and, unless otherwise provided
above in accordance with the provisions of the following paragraphs, is not
redeemable or repayable prior to the Stated Maturity Date.
If so provided above,this Note may be redeemed by the Company on any date
on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Company at the applicable Redemption Price
(as defined below), together with accrued interest hereon at the applicable rate
payable to the date of redemption (each such date, a "Redemption Date"), on
written notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall initially be
the Initial Redemption Percentage, specified above, of the principal amount of
this Note to be redeemed and shall decline at each anniversary of the Initial
Redemption Date, shown above, by the Annual Redemption Percentage Reduction, if
any, specified above hereof, of the principal amount to be redeemed until the
Redemption Price is 100% of such principal amount.
Unless otherwise specified in an Addendum attached hereto, this Note is not
subject to repayment at the option of the Holder. If this Note shall be
repayable at the option of the Holder as specified in an attached Addendum
hereto, unless otherwise specified in such Addendum, on any Optional Repayment
Date, this Note shall be repayable in whole or in part in increments of $1,000
(provided that any remaining principal hereof shall be at least $1,000) at the
option of the Holder hereof at a repayment price equal to 100% of the principal
amount to be repaid, together with interest thereon payable to the date of
repayment. If specified as repayable at the option of the Holder in such
Addendum, for this Note to be repaid in whole or in part at the option of the
Holder hereof, this Note must be received, with the form entitled "Option to
Elect Repayment" below duly completed, by the Trustee at its Corporate Trust
Office, or such address which the Company shall from time to time notify the
Holders of the Notes, not more than 60 nor less than 30 days prior to the
related Optional Repayment Date. Exercise of such repayment option by the
Holder hereof shall be irrevocable.
5
<PAGE>
Interest payments on this Note shall include interest accrued from, and
including, the Original Issue Date indicated above, or the most recent date to
which interest has been paid or duly provided for, to, but excluding, the
related Interest Payment Date or Maturity, as the case may be. Interest
payments for this Note shall be computed and paid on the basis of a 360-day year
of twelve 30-day months if the Day Count Convention specified above is "30/360"
for the period specified thereunder, on the basis of the actual number of days
in the related month and a 360-day year if the Day Count Convention specified
above is "Actual/360" for the period specified thereunder or on the basis of the
actual number of days in the related year and month if the Day Count Convention
specified above is "Actual/Actual" for the period specified thereunder.
As used herein, "Business Day" means any day other than a Saturday or
Sunday or any other day on which banks in The City of New York are generally
authorized or obligated by law or executive order to close.
Notwithstanding anything to the contrary contained herein or in the
Indenture, for purposes of determining the rights of a Holder of a Note for
which the principal thereof is determined by reference to the price or prices of
specified commodities or stocks, interest rate indices, interest or exchange
rate swap indices, the exchange rate of one or more specified currencies
(including a composite currency such as the European Currency Unit) relative to
an indexed currency or such other price, exchange rate or other financial index
or indices as specified above (a "Principal Indexed Note"), in respect of voting
for or against amendments to the Indenture and modifications and the waiver of
rights thereunder, the principal amount of any such Principal Indexed Note shall
be deemed to be equal to the face amount thereof upon issuance. The method for
determining the amount of principal payable at Maturity on a Principal Indexed
Note will be specified in an attached Addendum.
Any provision contained herein with respect to the calculation of the rate
of interest applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above, and references herein to "as specified above" or similar
language of like import shall also be references to any such Addendum.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the
6
<PAGE>
Holders of the Securities of each series to be affected thereby at any time by
the Company and the Trustee with the consent of the Holders of 66 2/3% in
aggregate principal amount of the Outstanding Securities of each series affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all the Securities
of such series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or by its attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not
7
<PAGE>
this Note be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
8
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[FACSIMILE OF SEAL] TOYOTA MOTOR CREDIT CORPORATION
By: ___________________________
Wolfgang Jahn
Group Vice President
Attest:
By: ___________________________
John McGovern
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY
as Trustee
By: ________________________ Dated: ______________
Authorized Officer
9
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the principal amount hereof together with interest to the
repayment date, to the undersigned, at ___________________________________
________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate Trust
Office, or at such other place or places of which the Company shall from time to
time notify the Holder of this Note, not more than 60 nor less than 30 days
prior to an Optional Repayment Date, if any, shown on the face of this Note,
this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$___________________________ ______________________________
NOTICE: The signature on this
Date ______________________ Option to Elect Repayment must
correspond with the name as written upon
the face of this Note in every
particular, without alteration or
enlargement or any change whatever.
10
<PAGE>
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.) ___________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________________________________________________________
__________________________________ attorney to transfer said Note on the books
of the Company with full power of substitution in the premises.
Dated: __________ ___________________________________________
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within instrument
in every particular, without alteration or enlargement or any change
whatsoever.
11
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--................Custodian..........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
12
<PAGE>
EXHIBIT 4.2(b)
FLOATING RATE GLOBAL MEDIUM-TERM NOTE
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
REGISTERED CUSIP No. ______________ PRINCIPAL OR FACE AMOUNT
No. BFLR___ $_______________________
TOYOTA MOTOR CREDIT CORPORATION
MEDIUM-TERM NOTE
(Floating Rate)
_______________________________________________________________________________
* * * [ ] CHECK IF A PRINCIPAL INDEXED NOTE * * *
If this is a Principal Indexed Note, references herein to "principal" shall be
deemed to be the face amount hereof, except that the amount payable upon
Maturity of this Note shall be determined in accordance with the formula or
formulas set forth below or in an attached Addendum hereto.
_______________________________________________________________________________
INTEREST RATE BASIS: ORIGINAL ISSUE DATE: STATED MATURITY DATE:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD: INITIAL INTEREST RESET DATE: INTEREST PAYMENT DATES:
<PAGE>
SPREAD MULTIPLIER: INTEREST RATE RESET PERIOD: INTEREST RESET DATES:
MAXIMUM INTEREST MINIMUM INTEREST RATE: IF INTEREST RATE BASIS
RATE: IS CMT RATE:
DESIGNATED CMT MATURITY
INDEX: _____ year(s).
DESIGNATED CMT TELERATE
PAGE:
[ ] 7055
[ ] 7052
IF 7052: [ ] WEEK
[ ] MONTH
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT: IF INTEREST RATE BASIS IS LIBOR:
INDEX CURRENCY: ________________
DESIGNATED LIBOR PAGE:
[ ] Reuters Page: _________
[ ] Telerate Page: _________
INTEREST CALCULATION: DAY COUNT CONVENTION
[ ] Regular Floating Rate Note [ ] Actual/360 for the period
[ ] Floating Rate/Fixed Rate from to .
Fixed Rate Commencement Date: [ ] Actual/Actual for the period
Fixed Interest Rate: from to .
[ ] Inverse Floating Rate Note [ ] 30/360 for the period
Fixed Interest Rate: from to .
2
<PAGE>
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
3
<PAGE>
TOYOTA MOTOR CREDIT CORPORATION, a California corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of
DOLLARS, or if this is a Principal Indexed Note, the principal amount as
determined in accordance with the terms set forth under "Other Provisions" above
and/or in the Addendum attached hereto, on the Stated Maturity Date specified
above (except to the extent redeemed or repaid prior to the Stated Maturity
Date), and to pay interest on the principal or face amount hereof as set forth
above, at a rate per annum equal to the Initial Interest Rate specified above
until the Initial Interest Reset Date specified above and thereafter at a rate
per annum determined in accordance with the provisions hereof and any Addendum
relating hereto depending upon the Interest Rate Basis or Bases, if any, and
such other terms specified above, until the principal hereof is paid or duly
made available for payment. Reference herein to "this Note", "hereof", "herein"
and comparable terms shall include an Addendum hereto if an Addendum is
specified above.
The Company will pay interest monthly, quarterly, semi-annually, annually
or such other period as specified above under "Interest Payment Period", on each
Interest Payment Date specified above, commencing on the first Interest Payment
Date specified above next succeeding the Original Issue Date specified above,
and on the Stated Maturity Date or any Redemption Date or Optional Repayment
Date (if specified as repayable at the option of the Holder in an attached
Addendum) (the date of each such Stated Maturity Date, Redemption Date and
Optional Repayment Date and the date on which principal or an installment of
principal is due and payable by declaration of acceleration pursuant to the
Indenture being referred to hereinafter as a "Maturity" with respect to
principal payable on such date); PROVIDED, HOWEVER, that if the Original Issue
Date is between a Regular Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date succeeding the Original Issue Date; and PROVIDED FURTHER, that if
an Interest Payment Date (other than an Interest Payment Date at Maturity) would
fall on a day that is not a Business Day (as defined below), such Interest
Payment Date shall be the following day that is a Business Day, except that in
the case the Interest Rate Basis is LIBOR, as indicated above, if such next
Business Day falls in the next calendar month, such Interest Payment Date shall
be the next preceding day that is a Business Day. Except as provided above,
interest payments will be made on the Interest Payment Dates shown above.
Unless otherwise specified above, the "Regular Record Date" shall be the date 15
calendar days (whether or not a Business Day) prior to the applicable Interest
Payment Date. Interest on this Note will accrue from and including the Original
Issue Date specified above, at the rates determined from time to time as
specified
4
<PAGE>
herein, until the principal hereof has been paid or made available for payment.
If the Maturity falls on a day which is not a Business Day as defined below, the
payment due on such Maturity will be paid on the next succeeding Business Day
with the same force and effect as if made on such Maturity and no interest shall
accrue with respect to such payment for the period from and after such Maturity.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will as provided in the Indenture be paid to the Person in whose
name this Note (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such Interest Payment Date.
Any such interest which is payable, but not punctually paid or duly provided for
on any Interest Payment Date (herein called "Defaulted Interest"), shall
forthwith cease to be payable to the registered Holder on such Regular Record
Date, and may be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the Holder of this Note not less than
10 days prior to such Special Record Date, or may be paid at any time in any
other lawful manner, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made at the
Office or Agency of the Company maintained by the Company for such purpose, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; PROVIDED, HOWEVER, that
at the option of the Company, payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register; and PROVIDED, FURTHER, that AT THE OPTION OF THE COMPANY, the
Holder of this Note may be entitled to receive payments of principal of and
interest on this Note by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Trustee not
less than 15 days prior to the applicable payment date.
Unless the certificate of authentication hereon has been executed by or on
behalf of Bankers Trust Company, the Trustee with respect to the Notes under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized officers, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of Securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes (the
"Notes"). The Notes are issued and to be issued under an Indenture dated as of
August 1, 1991 as amended and supplemented by the First Supplemental Indenture
dated as of October 1, 1991 (herein called the "Indenture") between the Company,
The Chase Manhattan Bank, N.A. and Bankers Trust Company, to which Indenture and
all indentures supplemental
5
<PAGE>
thereto reference is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee (as defined below) and the Holders of the
Notes and the terms upon which the Notes are to be authenticated and delivered.
Bankers Trust Company shall act as Trustee with respect to the Notes (herein
called the "Trustee", which term includes any successor Trustee with respect to
the Notes under the Indenture). The terms of individual Notes may vary with
respect to interest rates or interest rate formulas, issue dates, maturity,
redemption, repayment, currency of payment and otherwise.
Except as otherwise provided in the Indenture, the Notes will be issued in
global form only registered in the name of The Depository Trust Company (the
"Depositary") or its nominee. The Notes will not be issued in definitive form,
except as otherwise provided in the Indenture, and ownership of the Notes shall
be maintained in book entry form by the Depositary for the accounts of
participating organizations of the Depositary.
This Note is not subject to any sinking fund and, unless otherwise provided
above in accordance with the provisions of the following paragraphs, is not
redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any date
on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Company at the applicable Redemption Price
(as defined below) together with accrued interest hereon at the applicable rate
payable to the date of redemption (each such date, a "Redemption Date"), on
written notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall initially be
the Initial Redemption Percentage, specified above, of the principal amount of
this Note to be redeemed and shall decline at each anniversary of the Initial
Redemption Date, shown above, by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof, of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.
Unless otherwise specified in an Addendum attached hereto, this Note is not
subject to repayment at the option of the Holder. If this Note shall be
repayable at the option of the Holder as specified in an attached Addendum
hereto, unless
6
<PAGE>
otherwise specified in such Addendum, on any Optional Repayment Date, this Note
shall be repayable in whole or in part in increments of $1,000 (provided that
any remaining principal hereof shall be at least $1,000) at the option of the
Holder hereof at a repayment price equal to 100% of the principal amount to be
repaid, together with interest thereon payable to the date of repayment. If
specified as repayable at the option of the Holder in such Addendum, for this
Note to be repaid in whole or in part at the option of the Holder hereof, this
Note must be received, with the form entitled "Option to Elect Repayment" below
duly completed, by the Trustee at its Corporate Trust Office, or such address
which the Company shall from time to time notify the Holders of the Notes, not
more than 60 nor less than 30 days prior to the related Optional Repayment Date.
Exercise of such repayment option by the Holder hereof shall be irrevocable.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate Note above,
then, except as described below, this Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis shown above
(i) plus or minus the applicable Spread, if any, and/or (ii) multiplied by
the applicable Spread Multiplier, if any, specified and applied in the
manner described above. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Note is payable shall be reset as of each
Interest Reset Date specified above; PROVIDED, HOWEVER, that the interest
rate in effect for the period from the Original Issue Date to the Initial
Interest Reset Date will be the Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed Rate Note
above, then, except as described below, this Note shall bear interest at
the rate determined by reference to the applicable Interest Rate Basis
shown above (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described above. Commencing on the Initial Interest
Reset Date, the rate at which interest on this Note is payable shall be
reset as of each Interest Reset Date specified above; PROVIDED, HOWEVER,
that (i) the interest rate in effect for the period from the Original Issue
Date to the Initial Interest Reset Date shall be the Initial Interest Rate;
and (ii) unless specified above, the interest rate in effect commencing on,
and including, the Fixed Rate Commencement Date to the Maturity shall be
the Fixed Interest Rate, if such a rate is specified above, or if no such
Fixed Interest Rate is so specified, the interest rate in effect hereon on
the day immediately preceding the Fixed Rate Commencement Date.
7
<PAGE>
3. If this Note is designated as an Inverse Floating Rate Note
above, then, except as described below, this Note will bear interest equal
to the Fixed Interest Rate indicated above minus the rate determined by
reference to the applicable Interest Rate Basis shown above (i) plus or
minus the applicable Spread, if any, and/or (ii) multiplied by the
applicable Spread Multiplier, if any, specified and applied in the manner
described above; PROVIDED, HOWEVER, that the interest rate hereon will not
be less than zero percent. Commencing on the Initial Interest Reset Date,
the rate at which interest on this Note is payable shall be reset as of
each Interest Rate Reset Date specified above; PROVIDED, HOWEVER, that the
interest rate in effect for the period from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate.
4. Notwithstanding the foregoing, if this Note is designated above as
having an Addendum attached, the Note shall bear interest in accordance
with the terms described in such Addendum. If interest on this Note is to
be calculated in accordance with the terms of an attached Addendum, unless
otherwise specified in such Addendum, commencing on the Initial Interest
Reset Date, the rate at which interest on this Note is payable shall be
reset as of each Interest Rate Reset Date specified above; PROVIDED,
HOWEVER, that the interest rate in effect for the period from the original
Issue Date to the Initial Interest Reset Date shall be the Initial Interest
Rate.
Except as provided above, the interest rate in effect on each day shall be
(a) if such day is an Interest Reset Date, the interest rate determined on the
Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined on the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis
shall be the rate determined in accordance with the applicable provision below.
If any Interest Reset Date (which term includes the term Initial Interest Reset
Date unless the context otherwise requires) would otherwise be a day that is not
a Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if an Interest Rate Basis
specified on the face hereof is LIBOR and such next Business Day falls in the
next succeeding calendar month, such Interest Reset Date shall be the next
preceding Business Day.
Unless otherwise specified above, interest payable on this Note on any
Interest Payment Date shall be the amount of interest accrued from and including
the next preceding Interest Payment Date in respect of which interest has been
paid (or from and including the Original Issue Date specified above, if no
interest has been paid), to but excluding the related Interest Payment Date;
PROVIDED, HOWEVER, that the interest payments on Maturity will include interest
accrued to but excluding such Maturity. Unless otherwise specified above, Notes
calculated on an Actual/360 basis and Actual/Actual basis (as specified above),
accrued interest for each Interest Calculation Period will be calculated by
multiplying (i) the face amount hereof, (ii) the applicable interest rate, and
(iii) the actual number of days in the related Interest Calculation Period, and
dividing the resulting product by 360 or 365, as applicable (or, with respect
8
<PAGE>
to an Actual/Actual basis Floating Rate Note, if any portion of the related
Interest Calculation Period falls in a leap year, the product of (i) and (ii)
above will be multiplied by the sum of (X) the actual number of days in that
portion of the related Interest Calculation Period falling in a leap year
divided by 366 and (Y) the actual number of days in that portion of such
Interest Calculation Period falling in a non-leap year divided by 365). For
Notes calculated on a 30/360 basis (as specified above), accrued interest for an
Interest Calculation Period will be computed on the basis of a 360-day year of
twelve 30-day months, irrespective of how many days are actually in such
Interest Calculation Period. Unless otherwise specified above and/or in an
attached Addendum hereto, if this Note accrues interest on a 30/360 basis, if
any Interest Payment Date or the date of Maturity falls on a day that is not a
Business Day, the related payment of principal or interest will be made on the
next succeeding Business Day as if made on the date such payment was due, and no
interest will accrue on the amount so payable for the period from and after such
Interest Payment Date or Maturity, as the case may be. As used herein,
"Interest Calculation Period" means with respect to any period, the period from
and including the most recent Interest Reset Date (or from and including the
original issue date in the case of the first Interest Reset Date) to but
excluding the next succeeding Interest Reset Date for which accrued interest is
being calculated. Unless otherwise specified above interest with respect to
Notes for which the interest rate is calculated with reference to two or more
Interest Rate Bases will be calculated in the same manner as if only one of the
applicable Interest Rate Bases applied.
Unless otherwise specified above, the "Interest Determination Date" with
respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the Federal
Funds Rate, the J.J. Kenny Rate, and the Prime Rate will be the second Business
Day preceding each Interest Reset Date; the "Interest Determination Date" with
respect to LIBOR shall be the second London Business Day (as defined below)
preceding each Interest Reset Date; the "Interest Determination Date" with
respect to the Eleventh District Cost of Funds Rate shall be the last working
day of the month immediately preceding each Interest Reset Date on which the
Federal Home Loan Bank of San Francisco (the "FHLB of San Francisco") publishes
the Index (as defined below); the "Interest Determination Date" with respect to
the Treasury Rate will be the day in the week in which the related Interest
Reset Date falls on which day Treasury bills (as defined below) normally would
be auctioned (Treasury bills are normally sold at auction on Monday of each
week, unless that day is a legal holiday, in which case the auction is normally
held on the following Tuesday, except that such auction may be held on the
preceding Friday); PROVIDED, HOWEVER, that if, as a result of a legal holiday,
an auction is held on the Friday of the week preceding the related Interest
Reset Date, the related Interest Determination Date shall be such preceding
Friday; and PROVIDED, FURTHER, that if an auction shall fall on any Interest
Reset Date, then the Interest Reset Date
9
<PAGE>
shall instead be the first Business Day following such auction. If the interest
rate of this Note is determined with reference to two or more Interest Rate
Bases, the Interest Determination Date pertaining to this Note will be the first
Business Day which is at least two Business Days prior to such Interest Reset
Date on which each Interest Rate Basis shall be determinable. Each Interest
Rate Basis shall be determined and compared on such date, and the applicable
interest rate shall take effect on the related Interest Reset Date.
Unless otherwise specified above, the "Calculation Date" pertaining to any
Interest Determination Date will be the earlier of (i) the tenth calendar day
after such Interest Determination Date or, if such day is not a Business Day,
the next succeeding Business Day, or (ii) the Business Day preceding the
applicable Interest Payment Date or date of Maturity, as the case may be. All
calculations on this Note shall be made by the Calculation Agent specified above
or such successor thereto as is duly appointed by the Company.
All percentages resulting from any calculation on this Note will be rounded
to the nearest one hundred-thousandth of a percentage point, with five one
millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upward).
As used herein, "Business Day" means any day other than a Saturday or
Sunday or any other day on which banks in The City of New York are generally
authorized or obligated by law or executive order to close and, if the
applicable Interest Rate Basis shown above is LIBOR, is also a London Business
Day.
As used herein, "London Business Day" means any day (a) if the Index
Currency specified above is other than the European Currency Unit ("ECU"), on
which dealings in deposits in such Index Currency are transacted in the London
interbank market or (b) if the Index Currency specified above is the ECU, that
is not designated as an ECU Non-Settlement Day by the ECU Banking Association in
Paris or otherwise generally regarded in the ECU interbank market as a day on
which payments on ECUs shall not be made.
DETERMINATION OF CD RATE. If an Interest Rate Basis for this Note is the
CD Rate, as indicated above, the CD Rate shall be determined on the applicable
Interest Determination Date (a "CD Rate Interest Determination Date"), as the
rate on such date for negotiable certificates of deposit having the Index
Maturity specified above as published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest Rates" or
any successor publication ("H.15(519)"), under the heading "CDs (Secondary
Market)", or, if not so published by 3:00 P.M., New York City time, on the
related
10
<PAGE>
Calculation Date, the rate on such CD Rate Interest Determination Date for
negotiable certificates of deposit of the Index Maturity specified above as
published by the Federal Reserve Bank of New York in its statistical release
"Composite 3:30 P.M. Quotations for U.S. Government Securities" or any successor
publication ("Composite Quotations") under the heading "Certificates of
Deposit". If such rate is not yet published in either H.15(519) or the
Composite Quotations by 3:00 P.M., New York City time, on the Calculation Date,
then the CD Rate on such CD Rate Interest Determination Date will be calculated
by the Calculation Agent and will be the arithmetic mean (rounded to the nearest
one hundred-thousandth of a percentage point, with five one millionths of a
percentage point rounded upwards) of the secondary market offered rates as of
10:00 A.M., New York City time, on such CD Rate Interest Determination Date of
three leading non-bank dealers in negotiable U.S. dollar certificates of deposit
in The City of New York selected by the Calculation Agent for negotiable
certificates of deposit of major United States money market banks in the market
for negotiable certificates of deposit with a remaining maturity closest to the
Index Maturity designated above in an amount that is representative for a single
transaction in that market at that time; PROVIDED, HOWEVER, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting as set forth
above, the CD Rate determined on such CD Rate Interest Determination Date shall
be the CD Rate in effect on such CD Rate Interest Determination Date.
CMT RATE NOTES. If an Interest Rate Basis for this Note is the CMT Rate
the CMT Rate shall be determined on the related Interest Determination Date (a
"CMT Rate Interest Determination Date"), as the rate displayed on the Designated
CMT Telerate Page under the caption ". . . Treasury Constant Maturities. . .
Federal Reserve Board Release H.15 . . . Mondays Approximately 3:45 P.M.," under
the column for the Designated CMT Maturity Index for (i) if the Designated CMT
Telerate Page is 7055, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week or the month, as
applicable, ended immediately preceding the week in which the related CMT Rate
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or if not displayed by 3:00 p.m., New York City Time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published, or if not published by 3:00 p.m., New York City
time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States
11
<PAGE>
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in the relevant H.15(519). If such information is not provided by
3:00 p.m., New York City time, on the related Calculation Date, then the CMT
Rate for the CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards) of the secondary market
closing offer side prices as of approximately 3:30 P.M. (New York City time) on
the CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United states government securities dealers
(each, a "Reference Dealer") in The City of New York selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Note") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards) of the secondary market
offer side prices as of approximately 3:30 P.M. (New York City time) on the CMT
Rate Interest Determination Date of three Reference Dealers in The City of
New York (from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean (rounded to the nearest one hundred-thousandth of a percentage
point, with five one millionths of a percentage point rounded upwards) of the
offer prices obtained and neither the highest nor lowest of such quotes will be
eliminated; provided however, that if fewer than three Reference Dealers as
selected as aforesaid by the Calculation Agent are quoting as described herein,
the CMT Rate will be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original maturity as
described in the third preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the CMT Rate
Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated above (or any other page as may replace such page
on that service for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)), for the purpose of displaying Treasury Constant
12
<PAGE>
Maturities as reported in H.15(519). If no such page is specified above, the
Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified above with respect to which the CMT Rate will be calculated. If no
such maturity is specified above, the Designated CMT Maturity Index shall be 2
years.
DETERMINATION OF COMMERCIAL PAPER RATE. If an Interest Rate Basis for this
Note is the Commercial Paper Rate, as indicated above, the Commercial Paper Rate
shall be determined on the applicable Interest Determination Date (a "Commercial
Paper Rate Interest Determination Date"), as the Money Market Yield (as defined
below) on such date of the rate for commercial paper having the Index Maturity
specified above as published in H.15(519), under the heading "Commercial Paper".
In the event such rate is not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the Commercial Paper Rate shall be the Money
Market Yield on such Commercial Paper Rate Interest Determination Date of the
rate for commercial paper having the Index Maturity shown above as published in
Composite Quotations under the heading "Commercial Paper" (with an Index
Maturity of one month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If by 3:00 P.M., New York City
time, on the related Calculation Date such rate is not yet published in either
H.15(519) or Composite Quotations, then the Commercial Paper Rate for such
Commercial Paper Rate Interest Determination Date shall be as calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards) of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper having
the Index Maturity specified above placed for an industrial issuer whose bond
rating is "AA," or the equivalent, from a nationally recognized securities
rating agency; PROVIDED, HOWEVER, that if the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate determined on such Commercial Paper Rate Interest
Determination Date shall be the rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage rounded
upwards to the nearest one hundred-thousandth of a percentage point) calculated
in accordance with the following formula:
Money Market Yield = D x 360 x 100
360-(D x M)
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<PAGE>
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate Basis for this
Note is the Eleventh District Cost of Funds Rate, as indicated above, the
Eleventh District Cost of Funds Rate shall be determined on the applicable
Interest Determination Date (an "Eleventh District Cost of Funds Rate Interest
Determination Date"), and shall be the rate equal to the monthly weighted
average cost of funds for the calendar month preceding such Eleventh District
Cost of Funds Rate Interest Determination Date as set forth under the caption
"11th District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If such
rate does not appear on Telerate Page 7058 on any related Eleventh District Cost
of Funds Rate Interest Determination Date, the Eleventh District Cost of Funds
Rate for such Eleventh District Cost of Funds Rate Interest Determination Date
shall be the monthly weighted average cost of funds paid by member institutions
of the Eleventh Federal Home Loan Bank District that was most recently announced
(the "Index") by the FHLB of San Francisco as such cost of funds for the
calendar month preceding the date of such announcement. If the FHLB of San
Francisco fails to announce such rate for the calendar month next preceding such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate for such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the Eleventh District Cost of Funds
Rate in effect on such Eleventh District Cost of Funds Rate Interest
Determination Date. "Telerate Page 7058" means the display on the Dow Jones
Telerate Service on such page (or such other page as may replace such page on
that service for the purpose of displaying the Eleventh District Cost of Funds
Rate) for the purpose of displaying the monthly average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank District.
DETERMINATION OF FEDERAL FUNDS RATE. If an Interest Rate Basis for this
Note is the Federal Funds Rate, as indicated above, the Federal Funds Rate shall
be determined on the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date"), as the rate on that date for Federal Funds
as published in H.15(519) under the heading "Federal Funds (Effective)" or, if
not so published by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on such Federal Funds Rate Interest Determination Date, as
published in Composite Quotations under the heading "Federal Funds/Effective
Rate." If such rate is not yet published in either H.15(519) or Composite
Quotations by 3:00 P.M., New York City time, on the related Calculation Date,
the Federal Funds Rate for such Federal Funds Rate Interest Determination Date
shall be calculated by the Calculation Agent and shall be the arithmetic mean
(rounded to the nearest one hundred-thousandth of
14
<PAGE>
a percentage point, with five one millionths of a percentage point rounded
upwards) of the rates for the last transaction in overnight United States dollar
Federal funds arranged by three leading brokers of Federal funds transactions in
The City of New York selected by the Calculation Agent prior to 9:00 A.M., New
York City time on such Federal Funds Rate Interest Determination Date; PROVIDED,
HOWEVER, that if the brokers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the Federal Funds Rate determined on
such Federal Funds Rate Interest Determination Date shall be the Federal Funds
Rate in effect on such Federal Funds Rate Interest Determination Date.
J.J. KENNY RATE NOTES. If an Interest Rate Basis for this Note is the J.J.
Kenny Rate the J.J. Kenny Rate shall be determined on the related Interest
Determination Date (a "J.J. Kenny Rate Interest Determination Date"), as the
rate in the high grade weekly index (the "Weekly Index") on such date made
available by Kenny Information Systems ("Kenny") to the Calculation Agent. The
Weekly Index is, and shall be, based upon 30-day yield evaluations at par of
bonds, the interest of which is exempt from federal income taxation under the
Internal Revenue Code of 1986, as amended (the "Code"), of not less than five
high grade component issuers selected by Kenny which shall include, without
limitation, issuers of general obligation bonds. The specific issuers included
among the component issuers may be changed from time to time by Kenny in its
discretion. The bonds on which the Weekly Index is based shall not include any
bonds on which the interest is subject to a minimum tax or similar tax under the
Code, unless all tax-exempt bonds are subject to such tax. In the event Kenny
ceases to make available such Weekly Index by 3:00 P.M., New York City time, on
the related Calculation Date, a successor indexing agent will be selected by the
Calculation Agent, such index to reflect the prevailing rate for bonds rated in
the highest short-term rating category by Moody's Investors Service, Inc. and
Standard & Poor's Corporation in respect of issuers most closely resembling the
high grade component issuers selected by Kenny for its Weekly Index, the
interest on which is (A) variable on a weekly basis, (B) exempt from federal
income taxation under the Code, and (C) not subject to a minimum tax or similar
tax under the Code, unless all tax-exempt bonds are subject to such tax;
provided, however, that if such successor indexing agent as aforesaid is not
available, the rate for any J.J. Kenny Rate Interest Determination Date shall be
67% of the rate determined as if the Treasury Rate option had been originally
selected.
DETERMINATION OF LIBOR. If an Interest Rate Basis for this Note is LIBOR,
as indicated above, LIBOR will be determined on the applicable Interest
Determination Date (a "LIBOR Interest Determination Date"), and will be, either:
(a) if "LIBOR Reuters" is specified above, the arithmetic mean (rounded to the
nearest one hundred-thousandth of a percentage point, with five one millionths
of a percentage point rounded upwards) of the offered rates (unless the
specified Designated LIBOR Page by its terms provides only for a single rate, in
which case such single rate
15
<PAGE>
shall be used) for deposits in the Index Currency having the Index Maturity
designated above, commencing on the second London Business Day immediately
following that LIBOR Interest Determination Date, that appear on the Designated
LIBOR Page specified above as of 11:00 A.M. London time, on that LIBOR Interest
Determination Date, if at least two such offered rates appear (unless, as
aforesaid, only a single rate is required) on such Designated LIBOR Page, or (b)
if "LIBOR Telerate" is specified above, the rate for deposits in the Index
Currency having the Index Maturity designated above commencing on the second
London Business Day immediately following that LIBOR Interest Determination
Date, that appears on the Designated LIBOR Page specified above as of 11:00 A.M.
London time, on that LIBOR Interest Determination Date. If, as described in the
immediately preceding sentence, fewer than two offered rates appear, or no rate
appears, LIBOR in respect of the related LIBOR Interest Determination Date will
be determined as if the parties had specified the rate described in the
immediately succeeding paragraph.
With respect to a LIBOR Interest Determination Date on which fewer than two
offered rates appear, or no rate appears, as the case may be, the Calculation
Agent shall request the principal London offices of each of four major reference
banks in the London interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered quotation for deposits in the
Index Currency for the period of the Index Maturity shown above, commencing on
the second London Business Day immediately following such LIBOR Interest
Determination Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a single transaction in the
Index Currency in such market at such time. If at least two such quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date shall be
the arithmetic mean (rounded to the nearest one hundred-thousandth of a
percentage point, with five one millionths of a percentage point rounded
upwards) of such quotations as determined by the Calculation Agent. If fewer
than two quotations are provided, LIBOR determined on such LIBOR Interest
Determination Date shall be calculated by the Calculation Agent as the
arithmetic mean (rounded to the nearest one hundred-thousandth of a percentage
point, with five one millionths of a percentage point rounded upwards) of the
rates quoted at approximately 11:00 A.M. (or such other time specified above
under "OTHER PROVISIONS") in the applicable Principal Financial Center(s), on
such LIBOR Interest Determination Date by three major banks in such Principal
Financial Center(s) selected by the Calculation Agent for loans in the Index
Currency to leading European banks having the Index Maturity specified above and
in a principal amount that is representative for a single transaction in the
Index Currency in such market at such time; PROVIDED, HOWEVER, that if the banks
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR determined on such LIBOR
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<PAGE>
Interest Determination Date shall be LIBOR in effect on such LIBOR Interest
Determination Date.
"Index Currency" means the currency (including composite currencies)
specified above as the currency for which LIBOR shall be calculated. If no such
currency is specified above, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is designated
above, the display on the Reuters Monitor Money Rates Service on the page
designated above (or such other page as may replace such designated page on that
service for the purpose of displaying London interbank offered rates of major
banks) for the related Index Currency for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency, or (b) if
"LIBOR Telerate" is designated above, the display on the Dow Jones Telerate
Service on the page designated above (or such other page as may replace such
designated page on that service or such other service or services as may be
nominated by the British Bankers' Association for the purpose of displaying
London interbank offered rates for the related Index Currency) for the purpose
of displaying the London interbank rates of major banks for the applicable Index
Currency. If neither LIBOR Reuters nor LIBOR Telerate is specified above, LIBOR
for the applicable Index Currency will be determined as if LIBOR Telerate (and,
in the case U.S. dollars is the Index Currency, page 3750) had been specified.
"Principal Financial Center" will be, unless otherwise specified above, the
following city or cities for the related Index Currency:
Principal
Financial
Index Currency Center(s)
-------------- ---------
Australian Dollar Sydney
Belgian Franc Brussels
Canadian Dollar Toronto
Danish Krone Copenhagen
Deutsche Mark Frankfurt
Dutch Guilder Amsterdam
Finnish Markka Helsinki
French Franc Paris
Hong Kong Dollar Hong Kong
Italian Lira Milan
Luxembourg Franc Brussels and
Luxembourg
New Zealand Dollar Wellington and
Auckland
Norwegian Krone Oslo
Spanish Peseta Madrid
Sterling London
Swedish Krona Stockholm
17
<PAGE>
Swiss Franc Zurich
U.S. Dollar New York
Yen Tokyo
DETERMINATION OF PRIME RATE. If an Interest Rate Basis for this Note is
the Prime Rate, as indicated above, the Prime Rate shall be determined on the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan." If such rate is not published prior to 3:00 P.M.,
New York City time, on the related Calculation Date, then the Prime Rate shall
be the arithmetic mean (rounded to the nearest one hundred-thousandth of a
percentage point, with five one millionths of a percentage point rounded
upwards) of the rates of interest publicly announced by each bank that appears
on the Reuters Screen NYMF Page as such bank's prime rate or base lending rate
as in effect for that Prime Rate Interest Determination Date. If fewer than
four such rates but more than one such rate appear on the Reuters Screen NYMF
Page for such Prime Rate Interest Determination Date, the Prime Rate shall be
the arithmetic mean (rounded to the nearest one hundred-thousandth of a
percentage point, with five one millionths of a percentage point rounded
upwards) of the prime rates quoted on the basis of the actual number of days in
the year divided by a 360-day year as of the close of business on such Prime
Rate Interest Determination Date by four major money center banks in The City of
New York selected by the Calculation Agent. If fewer than two such rates appear
on the Reuters Screen NYMF Page, the Prime Rate will be determined by the
Calculation Agent on the basis of the rates furnished in The City of New York by
three substitute banks or trust companies organized and doing business under the
laws of the United States, or any state thereof, having total equity capital of
at least $500 million and being subject to supervision or examination by Federal
or state authority, selected by the Calculation Agent to provide such rate or
rates; provided, however, that if the banks or trust companies selected as
aforesaid are not quoting as mentioned in this sentence, the Prime Rate for such
Prime Rate Interest Determination Date will be the Prime Rate in effect on such
Prime Rate Interest Determination Date.
"Reuters Screen NYMF Page" means the display designated as page "NYMF" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
NYMF page on that service for the purpose of displaying prime rates or base
lending rates of major United States banks).
DETERMINATION OF TREASURY RATE. If an Interest Rate Basis for this Note is
the Treasury Rate, as specified above, the Treasury Rate shall be determined on
the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate applicable to the most recent auction of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified above, as such rate is published in H.15(519) under the heading "U.S.
Government Securities -- Treasury Bills -- auction average (investment)" or, if
not so published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate (expressed as
18
<PAGE>
a bond equivalent yield on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily yield basis) as otherwise announced by the
United States Department of the Treasury. In the event that the results of the
auction of Treasury bills having the Index Maturity specified above are not
reported as provided by 3:00 P.M., New York City time, on such Calculation Date,
or if no such auction is held in a particular week, then the Treasury Rate
hereon shall be the rate published in H.15(519) under the heading "U.S.
Government Securities--Treasury Bills--Secondary Market" (expressed as a bond
equivalent yield on the basis of a 365 or 366 day year, as applicable, on a
daily yield basis), or if not published by 3:00 P.M. New York City time on the
related Calculation Date, the Treasury Rate will be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent yield on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean (rounded to the nearest one
hundred-thousandth of a percentage point, with five one millionths of a
percentage point rounded upwards) of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date of three leading primary United States government securities
dealers as selected by the Calculation Agent for the issue of Treasury bills
with a remaining Maturity closest to the Index maturity specified above;
PROVIDED, HOWEVER, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate will be
the Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding anything to the contrary contained herein or in the
Indenture, for purposes of determining the rights of a Holder of a Note for
which the principal thereof is determined by reference to the price or prices of
specified commodities or stocks, interest rate indices, interest or exchange
rate swap indices, the exchange rate of one or more specified currencies
(including a composite currency such as the European Currency Unit) relative to
an indexed currency or such other price, exchange rate or other financial index
or indices as specified above (a "Principal Indexed Note"), in respect of voting
for or against amendments to the Indenture and modifications and the waiver of
rights thereunder, the principal amount of any such Principal Indexed Note shall
be deemed to be equal to the face amount thereof upon issuance. The method for
determining the amount of principal payable at Maturity on a Principal Indexed
Note will be specified in an attached Addendum.
Any provision contained herein with respect to the determination of an
Interest Rate Basis, the specification of Interest Rate Basis, calculation of
the Interest Rate applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above, and references herein to "as specified above" or similar
language of like import shall also be references to any such Addendum.
19
<PAGE>
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no event be higher
than the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
At the request of the Holder hereof, the Calculation Agent shall provide to
the Holder hereof the interest rate hereon then in effect and, if determined,
the interest rate which shall become effective as of the next Interest Reset
Date.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected thereby at any time by the Company and the Trustee with the consent of
the Holders of 66 2/3% in aggregate principal amount of the Outstanding
Securities of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all the Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or by its attorney duly authorized in writing, and thereupon
one or
20
<PAGE>
more new Notes of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
21
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[FACSIMILE OF SEAL] TOYOTA MOTOR CREDIT CORPORATION
By: ___________________________
Wolfgang Jahn
Group Vice President
Attest:
By: ___________________________
John McGovern
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY
as Trustee
By: Dated:
Authorized Officer
22
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the principal amount hereof together with interest to the
repayment date, to the undersigned, at ________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate Trust
Office, or at such other place or places of which the Company shall from time to
time notify the Holder of this Note, not more than 60 nor less than 30 days
prior to an Optional Repayment Date, if any, shown on the face of this Note,
this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$___________________________ ______________________________
NOTICE: The signature on this
Date ______________________ Option to Elect Repayment must
correspond with the name as written upon the
face of this Note in every particular,
without alteration or enlargement or any
change whatever.
23
<PAGE>
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.) ___________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
_________________________________ attorney to transfer said Note on the books of
the Company with full power of substitution in the premises.
Dated: __________ ____________________________________________
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within instrument
in every particular, without alteration or enlargement or any change
whatsoever.
24
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--................Custodian..........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
