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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 Exchange Act of 1934
Date of Report (Date of Earliest Event Reported):
September 3, 1998
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 No.)
Incorporation)
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, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
1.1 First Amended and Restated Distribution Agreement dated September
3, 1998 among Toyota Motor Credit Corporation, Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman,
Sachs & Co., Lehman Brothers Inc., J.P. Morgan Securities Inc.,
Morgan Stanley & Co. Incorporated and Salomon Smith Barney Inc.
4.2(a) Form of Fixed Rate Global Medium-Term Note.
4.2(b) Form of Floating Rate Global Medium-Term Note.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
TOYOTA MOTOR CREDIT CORPORATION
(Registrant)
Date: September 3, 1998 By: /s/ George E. Borst
-------------------------------------------
George E. Borst
Senior Vice President and General Manager
(principal executive officer)
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TOYOTA MOTOR CREDIT CORPORATION
Medium-Term Notes Due From 9 Months or More
From Date of Issue
FIRST AMENDED AND RESTATED DISTRIBUTION AGREEMENT
September 3, 1998
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
LEHMAN BROTHERS INC.
American Express Tower
World Financial Center
New York, New York 10285
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10154
MORGAN STANLEY DEAN WITTER
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
SALOMON SMITH BARNEY
Salomon Smith Barney Inc.
Seven World Trade Center, 32nd Floor
New York, New York 10048
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Ladies and Gentlemen:
Toyota Motor Credit Corporation, a California corporation (the "Company")
previously entered into a Distribution Agreement, dated October 17, 1991 (the
"Original Agreement"), which was amended by Amendment No. 1 thereto dated
September 1, 1992 ("Amendment No. 1") and Amendment No. 2 thereto dated March 9,
1994 ("Amendment No. 2," the Original Agreement, as amended, is referred to as
the "First Distribution Agreement"). Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and Lehman Brothers Inc.
("Lehman") were parties to the Original Agreement, Amendment No. 1 and Amendment
No. 2; Goldman, Sachs & Co. ("Goldman") and J.P. Morgan Securities Inc. ("J.P.
Morgan") became parties to the First Distribution Agreement pursuant to
Amendment No. 2. The parties to the First Distribution Agreement now desire to
amend and restate the First Distribution Agreement in its entirety to, among
other things, incorporate the changes made in Amendment No. 1 and Amendment No.
2, add Agents with respect to the issue and sale of the Company's Medium-Term
Notes, authorize additional Medium-Term Notes, and make certain other changes.
Accordingly, the First Distribution Agreement is hereby amended and restated in
its entirety as follows. (The First Distribution Agreement, as hereby amended
and restated, shall be referred to hereafter as the "Agreement".)
The Company confirms its agreement with Merrill Lynch, Lehman, Goldman
and J.P. Morgan and enters into an agreement with Morgan Stanley & Co.
Incorporated ("Morgan Stanley") and Salomon Smith Barney Inc. ("SSB")
(collectively, the "Agents") with respect to the issue and sale by the Company
of its Medium-Term Notes described herein (the "Notes"). The Notes are to be
issued pursuant to an indenture (as the same may be amended or restated from
time to time, the "Indenture") dated as of August 1, 1991, as amended by the
First Supplemental Indenture, dated as of October 1, 1991 among the Company, The
Chase Manhattan Bank and Bankers Trust Company. Bankers Trust Company will act
as trustee with respect to the Notes (the "Trustee").
As of the date hereof, the Company has authorized the issuance and
sale by the Company directly or through the Agents pursuant to the terms of this
Agreement of up to $9,000,000,000 (or its equivalent based on the applicable
exchange rate at the time of issuance, in such foreign currencies or units of
two or more currencies as the Company shall designate at the time of issuance)
aggregate principal amount of Notes, of which approximately $6,968,605,000
aggregate principal amount of Notes have previously been issued and
$2,031,395,000 remain available for issuance as of the date hereof; provided
that, in calculating the aggregate principal amount of Notes authorized, with
respect to Notes issued at a discount to face, the initial offering price shall
be used, and with respect to Notes issued at a premium to face, the face amount
of such Notes shall be used. It is understood, however, that the Company may
from time to time, pursuant to an Officer's Certificate delivered to the
Trustee pursuant to Section 301 of the Indenture (with an original copy thereof
delivered to the Agents), reduce the authorized aggregate initial offering price
of the Notes (but not below the aggregate initial offering price of Notes
previously issued under the Indenture) or authorize the issuance of additional
Notes and that such additional Notes may be distributed directly by the Company
or through or to the Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
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This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed to
by the Company and the related Agent or Agents) to one or more Agents as
principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-60913) for the
registration of debt securities, including the Notes, under the Securities Act
of 1933, as amended (the "1933 Act") and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the Commission and the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit) and
the prospectus constituting a part thereof, and any prospectus supplements
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934 (the "1934 Act") or
the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Agents by the Company for use in connection
with the offering of the Notes which is not required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations, the term "Prospectus" shall
refer to such revised prospectus from and after the time it is first provided to
the Agents for such use; provided that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such filing,
all references to the "Registration Statement" shall also be deemed to include
the Rule 462(b) Registration Statement. For purposes of this Agreement, all
references to the Registration Statement, Prospectus or preliminary prospectus
or to any amendment or supplement thereto shall be deemed to include any copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("EDGAR").
SECTION 1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT OF AGENTS. Subject to the terms and conditions
stated herein, the Company hereby appoints the Agents, except as otherwise
provided in this Section 1(a), as the exclusive agents for the purpose of
soliciting purchases of the Notes from the Company by others and agrees that,
except as otherwise contemplated herein, whenever the Company determines to sell
Notes directly to one or more Agents as principal for resale to others, it will
enter into a Terms Agreement (as hereafter defined) relating to each such sale
in accordance with the provisions of Section 3(b) hereof if requested by such
Agent. The Company agrees that, except as otherwise provided in this Section
1(a), during the period the Agents are acting as the Company's agents hereunder,
the Company will not engage any other party to assist in the placement of the
Notes (other than any person or entity which, by executing a counterpart of this
Agreement, becomes an Agent hereunder). Notwithstanding the foregoing, the
Company reserves the right to (i) appoint additional agents for the purpose of
assisting in the placement of the Notes during the term of this Agreement under
the terms of an agreement substantially identical to this Agreement (provided
that the commission to be paid to such additional agents in
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connection with the sale of any Note shall be the applicable commission
determined pursuant to Section 3(a) hereof), and (ii) sell Notes to one or more
underwriters in a discrete underwritten transaction or transactions so long as
such underwriter or underwriters shall execute an agreement substantially
identical to this Agreement relating to such underwritten transaction or
transactions, provided that no such agreement will appoint any such underwriter
an agent under this Agreement except as relates to the related transaction or
transactions. As used herein, the term "Agent", in addition to Merrill Lynch,
Lehman, Goldman, J.P. Morgan, Morgan Stanley and SSB, refers to each person or
entity which, at any particular time, is an agent or underwriter, as the case
may be, for the Company hereunder as evidenced by its execution of a counterpart
of this Agreement.
(b) REASONABLE EFFORTS SOLICITATIONS; RIGHT TO REJECT OFFERS. Upon
receipt of instructions from the Company, the Agents will use their reasonable
efforts to solicit purchases of such principal amount of Notes as the Company
and the Agents shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the initial offering
price of Notes registered pursuant to the Registration Statement. The Agents
will have no responsibility for maintaining records with respect to the
aggregate initial offering price of Notes sold, or of otherwise monitoring the
availability of Notes for sale under the Registration Statement. Each Agent
will communicate to the Company, orally or in writing, each offer to purchase
Notes, other than those offers rejected by such Agent. Each Agent shall have
the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of the Agent's agreement contained herein. The Company may
accept or reject any proposed purchase of the Notes, in whole or in part.
(c) SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPALS. In
soliciting purchases of the Notes on behalf of the Company, unless otherwise
specified pursuant to the terms hereof, each Agent shall act solely as agent for
the Company and not as principal. Each Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company. No
Agent shall have any liability to the Company in the event any such purchase is
not consummated for any reason. No Agent shall have any obligation to purchase
Notes from the Company as principal, but may agree from time to time to purchase
Notes as principal. Any such purchase of Notes by an Agent as principal shall
be made pursuant to a Terms Agreement in accordance with Section 3(b) hereof if
requested by such Agent. If the Company shall default on its obligation to
deliver Notes to a purchaser whose offer has been solicited by such Agent on any
agency basis and accepted by the Company due to its refusal to perform or
because of a breach of representation or warranty contained herein, the Company
shall (i) hold such Agent harmless against any loss, claim or damage arising
from or as a result of such default by the Company and (ii) pay to such Agent
any commission to which it would otherwise be entitled absent such default.
(d) RELIANCE. The Company and the Agents agree that any Notes the
placement of which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, in reliance on the
representations, warranties, covenants and
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agreements of the Company contained herein and on the terms and conditions and
in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Agent as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether through the Agents as agents or to one or more
Agents as principal), as of the date of each delivery of Notes (whether through
the Agents as agents or to one or more Agents as principal) (the date of each
such delivery to one or more Agents as principal being hereafter referred to as
a "Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of or a change in, the
interest rates, maturity, price or other terms of Notes or similar changes) or
there is filed with the Commission any document incorporated by reference into
the Prospectus (other than any Current Report on Form 8-K relating exclusively
to the issuance of debt securities under the Registration Statement other than
the Notes) (each of the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) REGISTRATION STATEMENT AND PROSPECTUS. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in
all material respects with the applicable requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission promulgated thereunder and no stop order
suspending the effectiveness Statement (including any Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional
information has been complied with; and the Indenture has been duly
qualified under the 1939 Act. The Registration Statement (including
any Rule 462(b) Registration Statement) at the time it became
effective did not, and at each time thereafter at which any amendment
to the Registration Statement (including any Rule 462(b) Registration
Statement) becomes effective or any Annual Report on Form 10-K is
filed by the Company with the Commission and as of the applicable
Representation Date, will not, considering the Registration Statement
and all Incorporated Documents (as defined in Section 5(a)(4))
considered as a whole, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus, as of the date hereof does not, and as of the applicable
Representation Date will not, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Agents expressly for use in
the Registration Statement or Prospectus or to those parts of the
Registration
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Statement which constitute the Statements of Eligibility under the
1939 Act on Form T-1. Each Prospectus delivered to the applicable
agent for use in connection with the offering of the Notes is
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were filed with the
Commission, complied in all material respects with the requirements of
the 1934 Act and the rules and regulations promulgated thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in or incorporated by reference in the Prospectus, did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(iii) ACCOUNTANTS. The accountants who certified the financial
statements included or incorporated by reference in the Prospectus are
independent public accountants within the meaning of the 1933 Act and
the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements and any
supporting schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated financial position
of the Company and its consolidated subsidiaries as of the dates
indicated and the consolidated results of their operations for the
periods specified; and, except as stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis; and any supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein.
(v) DUE INCORPORATION; AUTHORIZATION AND VALIDITY OF THIS
AGREEMENT, THE INDENTURE AND THE NOTES. The Company (A) has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of California with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus, (B) has the requisite
corporate power and authority to execute and deliver this Agreement,
any Terms Agreement, the Indenture and the Notes and to perform its
obligations hereunder and thereunder, (C) has duly authorized,
executed and delivered this Agreement and any Terms Agreement and each
of this Agreement and such Terms Agreement constitutes the valid and
binding agreement of the Company, and (D) is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such qualification
and in which the failure to do so would materially adversely affect
the business or financial condition of the Company.
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(vi) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise Stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
(B) there have been no transactions entered into by the Company or any
of its subsidiaries, other than those in the ordinary course of
business (which includes, but is not limited to, Euromarket, Euro
Asian or global financing and domestic private placement and public
financing), which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) since the date of
the most recent audited financial statements of the Company, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock except as otherwise
disclosed in the documentation relating to a particular issuance of
Notes, including the applicable pricing supplement.
(vii) SIGNIFICANT SUBSIDIARIES. Each "significant subsidiary", if
any, of the Company (as such term is defined in Rule 1-02 of
Regulation S-X under the 1933 Act) (each a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly organized and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not materially affect the business or financial
condition of the Company; except as otherwise disclosed in the
Prospectus, all of the issued and outstanding capital stock of each
such Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of preemptive or similar rights of any securityholder of
such Subsidiary.
(viii) THE INDENTURE. The Indenture has been duly and validly
authorized, executed and delivered by the Company and assuming it has
been duly and validly authorized, executed and delivered by the
Trustee, constitutes a legally valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as may be limited by (1) bankruptcy, insolvency reorganization,
moratorium or similar laws affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) or the
application of general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a proceeding
in equity or at law, (2) requirements that a claim with respect to any
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Notes payable in foreign or composite currency (or a foreign or
composite currency judgement in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (3) governmental authority to
limit, delay or prohibit the making of payments outside the United
States.
(ix) THE NOTES. The Notes have been duly and validly authorized by
the Company for issuance, offer and sale pursuant to this Agreement
and, when completed as contemplated by the Procedures (hereinafter
defined), executed, authenticated and delivered pursuant to the
provisions of the Indenture and this Agreement against payment of the
consideration set forth in the Prospectus or pursuant to any Terms
Agreement, will constitute legally valid and binding obligations of
the Company enforceable against the Company in accordance with their
terms, except as may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally (including, without limitation, fraudulent conveyance laws)
or by the application of general principles of equity, including
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether considered in
a proceeding in equity or at law, (2) requirements that a claim with
respect to any Notes payable in foreign or composite currency (or a
foreign or composite currency judgement in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (3) governmental authority to
limit, delay or prohibit the making of payments outside the United
States and will be entitled to the benefits of the Indenture; and the
Notes and the Indenture conform in all material respects to all
statements relating thereto contained in the Registration Statement.
(x) NO DEFAULTS; COMPLIANCE WITH LAWS; REGULATORY APPROVALS.
Neither the Company nor any of its Subsidiaries is in violation of its
charter or bylaws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any Subsidiaries is a party or by
which it may be bound, or to which any of the property or assets of
the Company or any of its Subsidiaries is subject, which violation or
default would materially adversely affect the business or financial
condition of the Company and its Subsidiaries considered as one
enterprise; and the execution, delivery and performance of this
Agreement, any Terms Agreement and the Indenture and the consummation
of the transactions contemplated herein and therein will not conflict
with, or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries pursuant
to, any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its
Subsidiaries is a party or by which it may be bound, or to which any
of the property or assets of the Company or any of its Subsidiaries is
subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or any of its
Subsidiaries or, to the best knowledge of the
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Company or any of its Subsidiaries, any law, administrative regulation
or administrative or court decree, and no consent, approval,
authorization, order or decree of any court or governmental agency or
body of the United States is required for the consummation by the
Company of the transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such as may be required under the
1933 Act or the 1933 Act Regulations or the 1939 Act or the 1939 Act
Regulations or as may be required by state securities or Blue Sky
laws.
(xi) LEGAL PROCEEDINGS; CONTRACTS. Except as set forth in the
Registration Statement, there is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened, against
the Company or any of its subsidiaries which is required to be
disclosed in the Registration Statement or which might in the opinion
of the Company result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise, or which might materially and adversely affect the
properties or assets thereof or which might materially and adversely
affect the consummation of this Agreement or any Terms Agreement; all
pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to its business, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company or
any of its subsidiaries which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xii) LICENSES. The Company owns or possesses or has obtained all
material governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to lease or own, as the case may
be, and to operate its properties and to carry on its business as
presently conducted where its ownership or lease of substantial
properties or the conduct of its business requires such ownership or
possession or the obtaining of such governmental licenses, permits,
consents, orders, approvals and other authorizations and where the
failure to do so would materially adversely affect the business or
financial condition of the Company and its subsidiaries considered as
one enterprise.
(xiii) INVESTMENT COMPANY ACT. The Company is not, and upon
issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended (the "1940 Act").
(xiv) COMMODITY EXCHANGE ACT. The Notes, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the
rules and regulations of the
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Commodity Futures Trading Commission under the Commodity Exchange Act
(the "Commodity Exchange Act Regulation").
(xv) RATING OF THE NOTES. The Company's long term debt rating is
"Aa1" by Moody's Investors Service, Inc. and "AAA" by Standard &
Poor's Ratings Services.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
director or officer of the Company and delivered to the Agents or to counsel to
the Agents in connection with an offering of Notes or the sale of Notes to one
or more of the Agents as principal shall be deemed a representation and warranty
by the Company to the Agents as to the matters covered thereby on the date of
such certificate and at each Representation Date subsequent thereto.
SECTION 3. SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPALS.
(a) SOLICITATIONS AS AGENTS. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, the Agents agree, when acting as agents of the Company, to use their
reasonable efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agents will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount or otherwise as agreed to by the Company and the Agents, equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by such Agent as set forth in Schedule A
hereto; provided, however, that the Company shall only be obligated to pay one
such fee with respect to any particular Note so sold.
The purchase price, interest rate, maturity date and other terms of
the Notes shall be agreed upon by the Company and the Agents and set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance by
the Company of an offer for the purchase of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the Notes will be issued in
denominations of $1,000 and integral multiples thereof. All Notes sold through
the Agents as agents will be sold at 100% of their principal amount unless
otherwise agreed to by the Company and the Agents.
(b) PURCHASES AS PRINCIPALS. Each sale of Notes to one or more
Agents as principal shall be made in accordance with the terms contained herein
and, if requested by such Agent, pursuant to a separate agreement which will
provide for the sale of such Notes to, and the purchase and reoffering thereof
by, such Agent or Agents. Each such separate agreement (which may be an oral
agreement) between one or more Agents and the Company, is herein referred to as
a "Terms Agreement". Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to include any Terms
Agreement between the Company and one or more Agents. Each such Terms
Agreement, whether oral or in writing, shall be with
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respect to such information (as applicable) as is specified in Exhibit A hereto.
An Agent's commitment to purchase Notes as principal pursuant to any Terms
Agreement or otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by each Agent
pursuant thereto, the price to be paid to the Company for such Notes (which, if
not so specified in a Terms Agreement, shall be at a discount equivalent to the
applicable commission set forth in Schedule A hereto), the time and place of
delivery of and payment for such Notes, any provisions relating to rights of,
and default by, purchasers acting together with the Agents in the reoffering of
the Notes, and such other provisions (including further terms of the Notes) as
may be mutually agreed upon. The Agents may utilize a selling or dealer group
in connection with the resale of the Notes purchased. Such Terms Agreement
shall also specify whether or not any of the officer's certificate, opinions of
counsel or comfort letter specified in Sections 7(b), 7(c) and 7(d) hereof shall
be required to be delivered by the Company on the related Settlement Date.
(c) ADMINISTRATIVE PROCEDURES. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time by the
Agents and the Company (the "Procedures"). Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
(d) DELIVERY OF CLOSING DOCUMENTS. The documents required to be
delivered by Section 5 hereof shall be delivered at the office of O'Melveny &
Myers LLP, 400 South Hope Street, Los Angeles, California 90071 on the date
hereof, or at such other time or place as the Agents and the Company may agree.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with the Agents as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will promptly notify (i)
the Agents of the effectiveness of any amendment to the Registration Statement,
(ii) the related Agent or Agents of the transmittal to the Commission for filing
of any supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus (other than any
Current Report on Form 8-K relating exclusively to an offering of debt
securities under the Registration Statement other than the Notes), (iii) the
Agents of the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus, (iv) the Agents of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or for additional information, (v) the Agents of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose; and (vi) any change in the rating assigned by any nationally recognized
statistical rating organization to any debt securities (including the Notes) of
the Company, or the public announcement by any nationally recognized statistical
rating organization that it has under surveillance or review, with possible
negative implications, its
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rating of any such debt securities, or the withdrawal by any nationally
recognized statistical rating organization of its rating of any such debt
securities since the date of this Agreement. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. Except as otherwise
provided in subsection (1) of this Section, the Company will give the Agents
notice of its intention to file or prepare any additional registration statement
with respect to the registration of additional Notes, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus (other
than an amendment or supplement providing solely for the establishment of or
change in, the interest rates, maturity, price or other terms of Notes or other
similar changes or an amendment or supplement which relates exclusively to an
offering of debt securities under the Registration Statement other than the
Notes) whether by the filing of documents pursuant to the 1934 Act (other than
any Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement other than the Notes), the 1933 Act
or otherwise, and will furnish the Agents with copies of any such amendment or
supplement or other documents proposed to be filed or prepared a reasonable time
in advance of such proposed filing or preparation, as the case may be, and will
not file any such amendment or supplement in a form to which you or your counsel
shall reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) (other than an amendment or supplement
which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) as the related Agents shall
reasonably request so long as the Agent is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes. The
Registration Statement and the Prospectus and any amendments or supplements
thereto furnished to the Agents will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare,
with respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the related Agent or Agents and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the Commission on the fifth business day after the date on which
such Pricing Supplement is first used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as
otherwise provided in subsection (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
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if it shall be necessary, in the reasonable opinion of either such counsel, to
amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
immediate notice shall be given, and confirmed in writing, to the Agents to
cease the solicitation of offers to purchase the Notes in the Agents' capacity
as agents and to cease sales of any Notes the Agents may then own as principal
pursuant to a Terms Agreement, and the Company will promptly prepare and file
with the Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except
as otherwise provided in subsection (1) of this Section, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall furnish such information to
counsel for the Agents, and shall cause the Registration Statement and the
Prospectus to be amended or supplemented, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, to include or incorporate
by reference financial information with respect thereto and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanation as shall be necessary for an
understanding thereof or as shall be required by the 1933 Act or the 1933 Act
Regulations.
(g) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except
as otherwise provided in subsection (1) of this Section, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) EARNINGS STATEMENTS. The Company, by applying the provisions
of Rule 158 under the 1933 Act, will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) covering each twelve month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(i) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such qualification
in effect for as long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so
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qualified. The Company will file such statements and reports as may be required
by the laws of each jurisdiction in which the Notes have been qualified as above
provided. The Company will promptly advise the Agents of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(j) 1934 ACT FILINGS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the 1934 Act. Such documents will comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations and to the extent such documents are incorporated by reference in
the Prospectus, when read together with the other information in or incorporated
by reference into the Prospectus, will not contain any untrue statement of a
material fact or omit to state a material fact required to by stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(k) STAND-OFF AGREEMENT. If required by any Terms Agreement,
between the date of any Terms Agreement and the Settlement Date with respect to
such Terms Agreement, the Company will not, without the prior written consent of
each Agent party to such Terms Agreement, directly or indirectly, sell, offer to
sell, contract, to sell or otherwise dispose of, or announce the offering of,
any debt securities of the Company denominated in the same currency as the Notes
to be purchased pursuant to such Terms Agreement, or any security exchangeable
into such debt securities (other than (i) the Notes that are to be sold pursuant
to such Terms Agreement (ii) securities sold in any Euro Asian or Euromarket
financing, or (iii) commercial paper in the ordinary course of business).
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (a), (b), (c), (e), (f),
(g) or (j) of this Section or the provisions of Section 7 hereof during any
period from the time (i) the Agents shall have received written notification
from the Company to suspend solicitation of purchases of the Notes in their
capacity as agents and (ii) the earlier of the date on which no Agent shall then
hold any Notes as principal purchased pursuant to the Terms Agreement and the
date which is thirty days (nine months with respect to subsections (e) and (j)
of this Section) from the date on which the Agents shall have received written
notice from the Company to suspend solicitation of purchases of the Notes, to
the time the Company shall determine that solicitation of purchases of the Notes
should be resumed or shall subsequently enter into a new Terms Agreement with
the Agents.
(m) USE OF PROCEEDS. The net proceeds from the sale of Notes will
be used by the Company as described in the Prospectus.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to solicit offers to purchase the Notes
as agents of the Company, the obligations of any purchasers of the Notes sold
through the Agents as agents, and any obligation of the Agents to purchase Notes
as principals pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties on the part of the Company herein
contained and to the accuracy of the statements of the Company's officers
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made in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all its covenants and agreements
herein contained and to the following additional conditions precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents and their counsel:
(1) OPINION OF COMPANY COUNSEL. The opinion of the General Counsel
for the Company to the effect that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
California.
(ii) The Company has corporate power and corporate authority
to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and in each document filed
pursuant to the 1934 Act and incorporated by reference into the
Prospectus.
(iii) This Agreement and any applicable Terms Agreement have
each been duly authorized by all necessary corporate action on the
part of the Company, and have each been duly executed and delivered by
the Company.
(iv) The Indenture has been duly authorized by all necessary
corporate action on the part of the Company and has been duly executed
and delivered by the Company and the Indenture has been qualified
under the 1939 Act. If California law were to apply, the Indenture
would constitute a legally valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) or by the application of general
principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law,
(2) requirements that a claim with respect to any Notes payable in
foreign or composite currency (or a foreign or composite currency
judgement in respect of such claim) be converted into U.S. dollars at
a rate of exchange prevailing on a date determined pursuant to
applicable law, and (3) governmental authority to limit, delay or
prohibit the making of payments outside the United States.
(v) The Notes (in the form of specimens certified by the
Company's Secretary and examined by such counsel) are in forms
permitted by the Indenture, and have been duly authorized by all
necessary corporate action on the part of the Company for issuance,
offer and sale as contemplated by this Agreement. If California
law were to apply, the Notes when completed as contemplated by the
Procedures, executed and authenticated as specified in the
Indenture and delivered
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against payment of the purchase price therefor pursuant to this
Agreement as provided in the Prospectus and any Terms Agreement, will
constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as may be limited by (1) bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) or by the
application of general principles of equity including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a proceeding
in equity or at law, (2) requirements that a claim with respect to any
Notes payable in foreign or composite currency (or a foreign or
composite currency judgement in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (3) governmental authority to
limit, delay or prohibit the making of payments outside the United
States, and the Notes will be entitled to the benefit of the
Indenture.
(vi) The Registration Statement has been declared effective
under the 1933 Act and, to his knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or threatened by the
Commission.
(vii) At the time the Registration Statement became
effective, the Registration Statement (other than the financial
statements and other financial and statistical data included or
incorporated by reference therein and the Statements of Eligibility on
Form T-1 filed as Exhibits thereto, as to which no opinion need be
rendered) appeared on its face to comply as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the 1939 Act Regulations.
(viii) Each document filed pursuant to the 1934 Act (other
than the financial statements and other financial and statistical data
included therein, as to which no opinion need be rendered) and
incorporated by reference in the Prospectus when filed, appeared on
its face to comply as to form in all material respects with the 1934
Act and the 1934 Act Regulations thereunder in effect at the date of
their filing.
(ix) The information in the Prospectus under the caption
"Description of Notes", and "Description of Debt Securities", to the
extent that it constitutes matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, has been reviewed by
him and is correct in all material respects.
(x) No authorization, approval, consent or order of any
court or governmental authority or agency is required in connection
with the sale of the Notes, except such as may be required under the
1933 Act or the 1933 Act Regulations or the 1939 Act or the 1939 Act
Regulations or state securities laws.
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(xi) To such counsel's knowledge, the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification and in which the failure to so qualify and be in good
standing would materially adversely affect its business or financial
condition.
(xii) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required to
be disclosed in the Registration Statement or in each document filed
pursuant to the 1934 Act and incorporated by reference in the
Prospectus, other than those disclosed therein, and all pending legal
or governmental proceedings to which the Company or any of its
Subsidiaries is a party or to which any of their property is subject
which are not described in the Registration Statement or in each
document filed pursuant to the 1934 Act and incorporated by reference
in the Prospectus, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material.
(xiii) To such counsel's knowledge, no default exists in the
due performance or observance by the Company of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument described or
referred to in the Registration Statement or filed as an exhibit
thereto or incorporated by reference therein, which default would have
a material adverse effect on the financial condition, earnings,
business affairs, business prospects, properties or results of
operations of the Company and its subsidiaries considered as one
enterprise.
(xiv) The execution and delivery of this Agreement, any Terms
Agreement, the Indenture, the Notes and the consummation of the
transactions contemplated herein and therein will not (A) conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument known to such counsel to which the Company
or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company
or any of its subsidiaries is subject, (B) result in any violation of
the provisions of the charter or bylaws of the Company, or (C) to such
counsel's knowledge, results in any violation of any applicable law,
administrative regulation or administrative or court decree.
(xv) The shares of issued and outstanding Common Stock of
the Company have been duly authorized and validly issued and are fully
paid and non-assessable.
(xvi) To such counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be
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described or referred to in the Registration Statement or in each
document filed, or to be filed or incorporated by reference as
exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, and the
descriptions thereof are correct in all material respects.
(2) TAX OPINION. The opinion of O'Melveny & Myers LLP, as
special tax counsel to the Company, to the effect that the information
in the Prospectus under the caption "United States Taxation" (or
similar caption), to the extent that it constitutes matters of law,
summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by it and is correct in all material
respects.
(3) OPINION OF COUNSEL TO THE AGENTS. The opinion of
O'Melveny & Myers LLP, counsel to the Agents, covering the matters
referred to in subparagraph (1) under the subheadings (i), (iii)
through (vii), inclusive, of this Section 5(a) and Section 2(a)(xiii),
except that such counsel shall give the opinion in Section 5(a)(iv)
and (v) applying New York law to the Indenture and to the Notes.
(4) In giving their opinions required by subsection (a)(1)
and (a)(3) of this Section, each counsel shall additionally state that
they do not believe that the Registration Statement, at the time it
became effective, and if an amendment to the Registration Statement or
an Annual Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement (an "Incorporated Document") and prior to the date of such
statement, then at the time such amendment became effective or at the
time of the most recent such filing of an Incorporated Document (to
the extent deemed to be incorporated by reference in the Registration
Statement and Prospectus), and, considering the Registration Statement
and Incorporated Document as a whole, at the date hereof, or (if such
opinion is being delivered in connection with a Terms Agreement
pursuant to Section 7(c) hereof) at the date of any Terms Agreement
and at the Settlement Date with respect thereto, as the case may be,
contains or contained an untrue statement of a material fact or omits
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, not misleading or
that the Prospectus, as amended or supplemented at the date hereof, or
(if such opinion is being delivered in connection with a Terms
Agreement pursuant to Section 7(c) hereof) at the date of any Terms
Agreement and at the Settlement Date with respect thereto, as the case
may be, contains or contained an untrue statement of a material fact
or omits or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. Such counsel may state that
they express no view as to the Statements of Eligibility on Form T-1,
financial statements and other financial and statistical data included
or incorporated by reference in such Registration Statement or
Prospectus.
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(b) OFFICER'S CERTIFICATE. At the date hereof the Agents shall
have received a certificate of the President or Vice President and the chief
financial or chief accounting officer of the Company, dated as of the date
hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or since
the date of any Terms Agreement, there has not been any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) the
other representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as through expressly
made at and as of the date of such certificate, (iii) the Company has performed
or complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and, to their knowledge, no proceedings for that purpose have been
initiated or threatened by the Commission.
(c) COMFORT LETTER. On the date hereof, the Agents shall have
received a letter from PricewaterhouseCoopers LLP, dated as of the date hereof
and in form and substance previously agreed to by the Company and the Agents.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement
Date with respect to any Terms Agreement, counsel to the Agents shall have been
furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be satisfactory in form and substance to the
Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agents, any Terms Agreement) may be terminated by the Agents by
notice to the Company at any time and any such termination shall be without
liability of any party to any other party, except that the covenant regarding
provision of any earnings statement set forth in Section 4(h) hereof, the
provisions concerning payment of expenses under Section 10 hereof, the indemnity
and contribution agreements set forth in Sections 8 and 9 hereof, the provisions
concerning the representations, warranties and agreements to survive delivery
set forth in Section 11 hereof and the provisions set forth under "Parties" of
Section 15 hereof shall remain in effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE AGENTS.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
the Note to the Company, and, if the Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to the Agent. If such
failure occurred for any reason other than default by the Agent in the
performance of its
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obligations hereunder, the Company will reimburse such Agent on an equitable
basis for its reasonable loss of the use of the funds for the period such funds
were credited to the Company's account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
acceptance by it of an offer for the purchase of Notes, and each delivery of
Notes to one or more Agents pursuant to a Terms Agreement, shall be deemed to be
an affirmation that the representations and warranties of the Company contained
in this Agreement and in any certificate theretofore delivered to the Agents
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or its agent,
or to the Agent or Agents, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Subject to the provisions
of Section 4(l) hereof, each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of the terms of Notes or a
change in the interest rates, maturity or price of Notes or similar changes, and
other than by an amendment or supplement which relates exclusively to an
offering of debt securities under the Registration Statement other than the
Notes) or there is filed with the Commission any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K
relating exclusively to the issuance of debt securities under the Registration
Statement other than the Notes) or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to one or more Agents pursuant to a Terms
Agreement, the Company shall furnish or cause to be furnished to the Agents
forthwith a certificate dated the date of filing with the Commission of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form reasonably satisfactory to the Agents
to the effect that the statements contained in the certificate referred to in
Section 5(b) hereof which were last furnished to the Agents are true and correct
at the time of such amendment, supplement, filing or sale, as the case may be,
as though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Subject to the
provisions of Section 4(1) hereof, each time that the Registration Statement or
the Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of the terms of Notes or a
change in the interest rates, maturity or price of the Notes or similar changes
or solely for the inclusion of additional financial information, and other than
by an amendment or supplement which relates exclusively to an offering of debt
securities
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under the Registration Statement other than the Notes) or there is filed with
the Commission any document incorporated by reference into the Prospectus (other
than any Current Report on Form 8-K or Quarterly Report on Form 10-Q, unless the
Agents shall reasonably request based on disclosure included or omitted from
such Report) or (if required pursuant to the terms of a Terms Agreement) the
Company sells Notes to one or more Agents pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to the Agents and to
counsel to the Agents a written opinion of each of the counsel designated in
Section 5(a)(1) and (2), or other counsel satisfactory to the Agents dated the
date of filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form reasonably satisfactory to the Agents, of substantially the same tenor
as the opinions referred to in Sections 5(a)(1) and (2) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinions; or, in lieu of such
opinions, counsel last furnishing such opinion to the Agents shall furnish the
Agents with a letter substantially to the effect that the Agents may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Subject to the
provisions of Section 4(1) hereof, each time that the Registration Statement or
the Prospectus shall be amended or supplemented to include additional financial
information or there is filed with the Commission any document incorporated by
reference into the Prospectus which contains additional financial information or
(if required pursuant to the terms of a Terms Agreement) the Company sells Notes
to one or more Agents pursuant to a Terms Agreement, the Company shall cause
Price Waterhouse, or other independent certified public accountants reasonably
satisfactory to the Agents, forthwith to furnish the Agents with a letter, dated
the date of filing with the Commission of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form reasonably satisfactory to the Agents, of substantially the same
tenor as the letter referred to in Section 5(c) hereof but modified to relate to
the Registration Statement and Prospectus, as amended and supplemented to the
date of such letter, and with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, PricewaterhouseCoopers
LLP, or other independent certified public accountants reasonably satisfactory
to the Agents, may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical nature is of such a
nature that, in the reasonable judgment of the Agents, such letter should cover
such other information.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify
severally and hold harmless each Agent and each person, if any, who controls
each Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
21
<PAGE>
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment or supplement thereto), the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage, or and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all reasonable expenses whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
an Agent to the extent authorized in Section 8(c)), reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement or Prospectus (or any
amendments or supplements thereto), and provided further, however, that the
indemnity agreement contained in this subsection 8(a) shall not inure to the
benefit of any Agent with respect to any loss, liability, claim, damage or
expense arising from the sale of Notes by such Agent to any person if all of the
following occur: (x) such Agent has failed to send or give a copy of the
Prospectus (excluding documents incorporated by reference), as it may then have
been amended or supplemented, to that person at or prior to the time of written
confirmation of such sale; (y) the untrue statement or alleged untrue statement
of a material fact in or omission or alleged omission of a material fact from a
previous form of the Prospectus was corrected in the Prospectus, as then amended
or supplemented; and (z) such Agent shall have been notified as to such
amendment or supplement as set forth herein and the Company shall have delivered
copies of the Prospectus, as so amended or supplement, to such Agent.
(b) INDEMNIFICATION OF COMPANY. Each Agent, severally and not
jointly, agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss,
22
<PAGE>
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment or supplement thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use in the Registration Statement (or any amendment or supplement
thereto) or the Prospectus (or any amendment or supplement thereto).
(c) GENERAL. Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party of such commencement shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may assume the defense of the indemnified
party by retaining counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
In no event shall the indemnifying parties be liable for the fees and expenses
of more than one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
(d) FOREIGN CURRENCY JUDGMENTS. The Company agrees to indemnify
the Agents against any loss incurred by the Agents as a result of any judgment
or order being given or made for the amount due under this Agreement and such
judgment or order being paid in a currency (a "Judgment Currency") other than
U.S. dollars as a result of any variation between (i) the rate of exchange at
which U.S. dollars are converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the rate of exchange at which the applicable
Agent is able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by such Agent. The foregoing indemnity shall constitute a
separate and independent obligation of the Company and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs of exchange payable
in connection with the purchase of, or conversion into, the relevant currency.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or Section 9 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent does not contain a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any indemnified party (unless such
statement is agreed to by the indemnified party in writing);
23
<PAGE>
provided, however, that in the event such settlement, compromise or consent by
the indemnifying party does not include an unconditional release of each
indemnified party from all liability arising out of any litigation,
investigation, proceeding or claim, the provisions of this section with respect
to indemnification shall continue and survive.
SECTION 9. CONTRIBUTION.
If the indemnity agreement provided for in Section 8 hereof is for any
reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent pursuant to this Agreement to the date of such liability bears to the
total sales price from the sale of Notes sold to or through such Agent to the
date of such liability to which such losses, liabilities, claims, damages or
expenses relate and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
If, however, the allocation provided in the previous paragraph is not
permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect, not only the relative benefits received by the Company
on the one hand, and the applicable Agent(s), on the other hand, in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses but also the relative fault of the Company, on the
one hand, and the applicable Agent(s), on the other hand in connection with the
offering of the Notes that were the subject of the claim for indemnification.
The relative benefits received by the Company on the one hand and the Agent(s)
on the other shall be deemed to be in the same respective proportions as the
total proceeds from the sale of such Notes (before deducting expenses) received
by the Company bears to the total discount or commission received by the
applicable Agent(s) in respect thereof. The relative fault of the Company, on
the one hand, and the applicable Agent(s), on the other hand, shall be
determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
applicable Agent(s) and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the applicable Agent(s) were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency
24
<PAGE>
or body, commenced or threatened, or any claim whatsoever based upon any
applicable untrue or alleged untrue statement or omission or alleged omission
(covered by Section 8(a) hereof).
Notwithstanding the provisions of this Section 9, (i) no Agent shall
be required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. In addition, in connection with an offering of Notes
purchased from the Company by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Company.
For purposes of this Section 9, each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as such Agent, and each director
of the Company, each officer of the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and
the Prospectus, and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry
notes;
(d) The reasonable fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel and of any
Calculation Agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including
filing fees, and the reasonable fees and disbursements of counsel to
the Agents in connection therewith and in connection with the
preparation of any Blue Sky Survey;
25
<PAGE>
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement, and any
amendments thereto, and of the Prospectus, and any amendments or
supplements thereto;
(h) The preparation, printing, reproducing and delivery to the
Agents of copies of the Indenture and all supplements and amendments
thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of such expense by the Company;
(l) The cost of preparing, and providing any CUSIP or other
identification numbers for, the Notes; and
(m) The fees and expenses of any Depository (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties, indemnities and agreements contained
in this Agreement or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of the Agents, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
Terms Agreement) may be terminated for any reason, at any time by either the
Company or the Agents on the giving of 30 days' written notice of such
termination to the other party hereto; provided, however, that the termination
of this Agreement by an Agent shall terminate this Agreement only between such
Agent and the Company and the Company's notice of termination as to any one
Agent shall terminate this Agreement only between itself and such Agent.
(b) TERMINATION OF A TERMS AGREEMENT. The Agent or Agents party to
a Terms Agreement may terminate any Terms Agreement, immediately upon notice to
the Company, at any time prior to the Settlement Date relating thereto (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there shall have occurred any outbreak
or escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
reasonable judgment of the Agent or Agents party to such Terms Agreement (after
consultation
26
<PAGE>
with the Company), impracticable to market the Notes subject to such Terms
Agreement or enforce contracts for the sale of such Notes, or (iii) if trading
in any securities of the Company has been suspended by the Commission or a
national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium shall have been declared by federal, California or New York
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes subject to such Terms Agreement are denominated or
payable, or (iv) if the rating assigned by any nationally recognized securities
rating agency to any debt securities of the Company as of the date of any Terms
Agreement shall have been lowered since that date or if any such rating agency
shall have publicly announced since that date that it has placed any debt
securities of the Company on what is commonly termed a "watch list" for possible
downgrading, or (v) if there shall have come to the Agent's or Agents' attention
any facts that would cause such Agent or Agents to believe that the Prospectus,
at the time it was required to be delivered to a purchaser of Notes subject to
such Terms Agreement, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time of such
delivery, not misleading.
(c) GENERAL. In the event of any such termination, no party will
have any liability to any other party hereto, except that (i) each Agent shall
be entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof to the extent permitted by Section 1(c), (ii) if at the time
of termination (a) the Agents shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (b) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or its agent of the Note or Notes relating thereto has not occurred,
the obligations set forth in Section 5 hereof and the covenants set forth in
Sections 4 and 7 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be (provided, however, that, except as provided in
clause (iii) below, the Company's obligations pursuant to Sections 4 and 7
hereof shall in any event terminate no later than the date that is thirty days
(nine months with respect to subsections (e) and (j) of Section 4 hereof) after
the time of such termination), and (iii) the covenant set forth in Section 4(h)
hereof, the indemnity and contribution agreements set forth in Sections 8 and 9
hereof, and the provisions of Sections 10, 11 and 15 hereof shall remain in
effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, by telecopier or by telegram, and any such notice shall be effective
when received at the address specified below.
If to the Company:
Toyota Motor Credit Corporation
27
<PAGE>
19001 South 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:
Lehman Brothers Inc.
3 World Financial Center
12th Floor
New York, New York 10285
Attention: Medium-Term Note Product
Management
Telecopy: (212) 528-1718
If to Goldman:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department/Credit Control-Medium Term Notes
Telecopy: 212-346-2793
If to J.P. Morgan:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: Transaction Execution Group, 13th Floor
Telecopy: 212-648-5151
If to Morgan Stanley:
28
<PAGE>
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telecopy: 212-761-0780
With a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 34th Floor
New York, New York 10036
Attention: Peter Cooper, Investment Banking Information Center
Telecopy: 212-761-0260
If to SSB:
Salomon Smith Barney Inc.
Seven World Trade Center, 32nd Floor
New York, New York 10048
Attention: Medium Term Notes
Telecopy: 212-283-2274
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be
a successor by reason merely of such purchase.
SECTION 16. COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original hereof.
SECTION 17. CAPTIONS.
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms or the provisions hereof.
29
<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.
30
<PAGE>
Very truly yours,
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ George E. Borst
---------------------------------------
Name: George E. Borst
Title: Senior Vice President
and General Manager
31
<PAGE>
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott Primrose
--------------------------------
Authorized Signatory
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
--------------------------------
Authorized Signatory
J.P. MORGAN SECURITIES INC.
By: /s/ David Olsen
--------------------------------
Authorized Signatory
LEHMAN BROTHERS INC.
By: /s/ Herbert McDade
--------------------------------
Authorized Signatory
32
<PAGE>
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
--------------------------------
Authorized Signatory
SALOMON SMITH BARNEY INC.
By: /s/ Martha Bailey
--------------------------------
Authorized Signatory
33
<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:
Day Count Convention:
[ ] Actual/360 for the period from ______ to ______.
[ ] Actual/Actual for the period from ______ to ______.
[ ] Other:
34
<PAGE>
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.
35
<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:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 year .175%
From 2 years to less than 3 year .200%
From 3 years to less than 4 year .275%
From 4 years to less than 5 year .325%
From 5 years to less than 6 year .375%
From 6 years to less than 7 year .425%
From 7 years to less than 10 year .500%
From 10 years to less than 15 year .625%
From 15 years to less than 20 year .700%
From 20 years to 30 years .750%
*more than 30 years
*To be negotiated at time of sale between the related Agent and the Company
36
<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:
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 .
1
<PAGE>
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
2
<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 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
3
<PAGE>
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 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.
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.
4
<PAGE>
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.
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.
5
<PAGE>
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 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
6
<PAGE>
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 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.
7
<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.
TOYOTA MOTOR CREDIT CORPORATION
By:
------------------------------
George E. Borst
Senior Vice President
And General Manager
Attest:
By:
----------------------------
Robert Pitts
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
8
<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 Option
Date 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.
9
<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.
10
<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.
11
<PAGE>
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 (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.
<TABLE>
<S> <C> <C>
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:
SPREAD MULTIPLIER: INTEREST RATE RESET PERIOD: INTEREST RESET DATES:
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: IF INTEREST RATE BASIS IS CMT RATE:
DESIGNATED CMT MATURITY INDEX:
____________ year(s).
<PAGE>
DESIGNATED CMT TELERATE PAGE:
[ ] 7055
[ ] 7052
IF 7052: [ ] WEEK
[ ] MONTH
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT DATE(S):
PERCENTAGE: PERCENTAGE REDUCTION:
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
from to
[ ] Floating Rate/Fixed Rate [ ] Actual/Actual for the period
from to
Fixed Rate Commencement Date:
Fixed Interest Rate: [ ] 30/360 for the period
[ ] Inverse Floating Rate Note from to
Fixed Interest Rate:
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
</TABLE>
2
<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 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
3
<PAGE>
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 thereto reference is hereby made for a statement of
the respective rights thereunder for 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 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 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
5
<PAGE>
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 the
day immediately preceding the Fixed Rate Commencement Date.
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
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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 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 such 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, 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
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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 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 a day on which dealings in the
Index Currency are transacted in the London interbank market.
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 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 daily 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 related
8
<PAGE>
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 nonbank 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 denominations of $5,000,000 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 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
9
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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 Markets
Limited (or any successor 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 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 by the Board of Governors of the Federal Reserve
System H.15 (519), under the heading "Commercial Paper - Nonfinancial". 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
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Composite Quotations under the heading "Commercial Paper-Nonfinancial" (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 a nonfinancial issuer whose bond
rating is "AA," or the equivalent, from a nationally recognized securities
rating organization; 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)
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
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Determination Date. "Telerate Page 7058" means the display on the Dow Jones
Markets Limited (or any successor 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 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.
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 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, as applicable, 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.
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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, on the applicable
Designated LIBOR Page, as specified in the immediately preceding paragraph, 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 such 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 such 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 such
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 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 Markets
Limited (or any successor 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, if U.S. dollars is the Index Currency,
page 3750) had been specified.
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"Principal Financial Center" means (i) the capital city of the country
issuing the Specified Currency, (except that with respect to ECU, the Principal
Financial Center will be Luxembourg and with respect to Euro, the Principal
Financial Center will be London), or (ii) the capital city of the country to
which the Index Currency, if applicable, relates (or, in the case of ECU,
Luxembourg, OR Euro, London), except in the case of clause (i) or (ii) above,
with respect to U.S. dollars, Deutsche marks, Canadian dollars, Australian
dollars, Italian lire, Swiss francs and Dutch guilders, the "Principal Financial
Center" shall be the City of New York, Frankfurt, Toronto, Sydney, Milan (solely
in the case of clause (i) above), Zurich and Amsterdam, respectively.
"Specified Currency" means the currency or composite currency in which a
particular Note is denominated (or, if such currency or composite currency is no
longer legal tender for the payment of public and private debts, such other
currency or composite currency of the relevant country which is then legal
tender for the payment of such debts).
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 USPRIME1 Page (as hereinafter defined) 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 quotations are so provided, 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 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, if any, that have provided such quotations
and by a reasonable number of 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 USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME1 page on that service or any successor 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
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bills") having the Index Maturity specified above, as such rate is published in
H.15(519) under the heading "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 a bond equivalent yield on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily 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 the related Calculation Date, or if no such auction is held in a
particular week, then 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 (which may include
one or more of the agents for distribution of the Notes or their affiliates)
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 or
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.
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.
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<PAGE>
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 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
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<PAGE>
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.
17
<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.
TOYOTA MOTOR CREDIT CORPORATION
By:
-----------------------------------
George E. Borst
Senior Vice President
and General Manager
Attest:
By:
----------------------------
Robert Pitts
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
By: Dated:
---------------------------- -------------------
Authorized Officer
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<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 and
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 Option to Elect
Date: 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.
19
<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.
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<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.
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