EXECUTION COPY
$300,000,000
TOYOTA MOTOR CREDIT CORPORATION
(a California corporation)
5.50% Notes due 2008
UNDERWRITING AGREEMENT
December 9, 1998
BEAR, XXXXXXX & CO. INC.
ARTEMIS CAPITAL GROUP, INC.
XXXXXXXX & PARTNERS, X.X.
XXXXXXX & CO., INC.
XXXXXXXX CAPITAL PARTNERS, L.P.
c/o BEAR, XXXXXXX & CO. INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the several Underwriters named herein
Ladies and Gentlemen:
Toyota Motor Credit Corporation, a California corporation (the "Company"),
confirms its agreement with Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"),
Artemis Capital Group, Inc. Xxxxxxxx & Partners, L.P., Xxxxxxx & Co., Inc.,
Xxxxxxxx Capital Partners, L.P. (collectively, the "Underwriters," which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for which Bear Xxxxxxx is acting as representative (in
such capacity, the "Representative"), with respect to the sale by the Company
and the purchase by the Underwriters, acting severally and not jointly, of
the respective principal amounts set forth in Schedule A attached hereto of
$300,000,000 aggregate principal amount of the Company's 5.50% Notes due 2008
(the "Securities"). The Company is a wholly owned subsidiary of Toyota Motor
Sales, U.S.A., Inc. ("TMS"), which is a wholly owned subsidiary of Toyota
Motor Corporation. The Securities are to be issued pursuant to an Indenture
dated as of August 1, 1991, as amended by the First Supplemental Indenture,
dated as of October 1, 1991 (the "Indenture") among the Company, The Chase
Manhattan Bank, as trustee (the "Trustee") and Bankers Trust Company.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (No. 333-60913) covering
registration of debt securities, including the Securities, under the
Securities Act of 1933, as amended (the "1933 Act"), which registration
statement has been declared effective by the Commission and copies of which
have heretofore been delivered to you. The Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
Registration Statement, in the form
in which it was declared effective, including any amendments or supplements
thereto in the form such amendments or supplements became effective, and any
documents incorporated by reference therein through the date hereof, and at
the Closing Time (as defined in Section 2(b)), is hereinafter referred to as
the "Registration Statement." The Company proposes to file with the
Commission pursuant to paragraph (b) of Rule 424 ("Rule 424(b)") of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") a prospectus supplement (the "Prospectus Supplement"), dated
the date hereof, and a prospectus (the "Base Prospectus"), dated September 3,
1998, each relating to the Securities and the distribution thereof and has
previously advised you of all further information (financial and other) with
respect to the Company set forth therein. The Base Prospectus, as
supplemented by the Prospectus Supplement, together in the form in which they
are filed with the Commission pursuant to Rule 424(b) and including all
documents incorporated or deemed to be incorporated by reference therein, are
hereinafter referred to as the "Prospectus," except that if any revised
prospectus shall be provided to the Underwriters by the Company for use in
connection with the offering of the Securities which differs from the
Prospectus filed with the Commission pursuant to Rule 424(b) (whether or not
such revised prospectus is required to be filed by the Company pursuant to
Rule 424(b)), the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Underwriters for such
use. As used herein, the term "Prospectus Supplement" shall refer to the
Prospectus Supplement dated December 9, 1998 used with respect to the
Securities. Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include any Rule 462(b) Registration Statement. For purposes of this
Agreement, all references to the Registration Statement, the Prospectus or
any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934 (the
"1934 Act") which is incorporated by reference in the Registration Statement
or the Prospectus, as the case may be.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after
this Agreement has been executed and delivered.
1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Underwriter as of the
date hereof that:
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(i) The Company meets the requirements for use of Form S-3
under the 1933 Act. At the time the Registration Statement became
effective, the Registration Statement complied and at the Closing
Time, the Registration Statement will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act, and the rules and regulations of the Commission
promulgated thereunder (the "1939 Act Regulations") and no stop order
suspending the effectiveness of the Registration Statement (including
any Rule 462(b) Registration Statement) has been issued under the 1933
Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with. The Registration
Statement (including any Rule 462(b) Registration Statement) at the
time it became effective, did not, and each time thereafter at which
any amendment to the Registration Statement (including any Rule 462(b)
Registration Statement) becomes effective and as of the Closing Time,
will not, considering the Registration Statement and all Incorporated
Documents (as defined in Section 5(b)(3)) considered as a whole,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as of the date
hereof does not, and at the Closing Time, will not, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided
however, that the representations and warranties in this subsection
shall not apply to that part of the Registration Statement which shall
constitute the Statements of Eligibility under the 1939 Act on Form
T-1 of the Trustee or Bankers Trust Company, as the case may be, or
apply to statements or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representative expressly for use in the Registration Statement or
Prospectus. Each Prospectus delivered to the Underwriters for use in
connection with this offering will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(ii) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iii) The financial statements and any supporting schedules of
the Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the
consolidated results of their operations for the periods specified;
and, except as stated therein, said financial statements have been
prepared in conformity with generally accepted accounting principles
in the United States
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applied on a consistent basis; and any supporting schedules included
or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein.
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business (which includes, but is not
limited to, Euromarket, Euro Asian or global financings and domestic
private placement and public financing), which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) since the date of the most recent audited
financial statements of the Company, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock except as otherwise disclosed in the
documentation relating to the Securities.
(v) The Company (A) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of California with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, (B) has the requisite corporate power and authority to
execute and deliver this Agreement, the Indenture and the Securities
and to perform its obligations hereunder and thereunder, (C) has duly
authorized, executed and delivered this Agreement and this Agreement
constitutes the valid and binding agreement of the Company, and (D) is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification and in which the failure to do so would materially
adversely affect the business or financial condition of the Company.
(vi) Each "significant subsidiary", if any, of the Company (as
such term is defined in Rule 1-02 of Regulation S-X under the 1933
Act) (each a "Subsidiary" and, collectively, the "Subsidiaries") has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
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
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stock of each such Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim
or equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of preemptive or similar rights of
any securityholder of such Subsidiary.
(vii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and assuming it has been duly
and validly authorized, executed and delivered by the Trustee,
constitutes a legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) and by the
application of general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a proceeding
in equity or at law.
(viii) The Securities have been duly and validly authorized by
the Company for issuance, offer and sale pursuant to this Agreement
and, when executed, authenticated and delivered pursuant to the
provisions of the Indenture and this Agreement against payment of the
consideration set forth herein and in the Prospectus, will constitute
legally valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by the application of
general principles of equity, including without limitation, the
concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or
at law; and the Securities will be entitled to the benefits of the
Indenture; and the Securities and the Indenture conform in all
material respects to all statements relating thereto contained in the
Registration Statement and the Prospectus.
(ix) Neither the Company nor any of its Subsidiaries is in
violation of its charter or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its
Subsidiaries is a party or by which it may be bound, or to which any
of the property or assets of the Company or any of its Subsidiaries is
subject, which violation or default would materially adversely affect
the business or financial condition of the Company and its
Subsidiaries considered as one enterprise; and the execution, delivery
and performance of this Agreement and the Indenture and the
consummation of the transactions contemplated herein and
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therein will not conflict with, or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
Subsidiaries pursuant to, any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company
or any of its Subsidiaries is a party or by which it may be bound, or
to which any of the property or assets of the Company or any of its
Subsidiaries is subject, nor will such action result in any violation
of the provisions of the charter or bylaws of the Company or any of
its Subsidiaries or, to the best knowledge of the Company and any of
its Subsidiaries, any law, administrative regulation or administrative
or court decree, and no consent, approval, authorization, order or
decree of any court or governmental agency or body of the United
States is required for the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture, except
such as may be required under the 1933 Act or the 1933 Act Regulations
or the 1939 Act or the 1939 Act Regulations or as may be required by
state securities or Blue Sky laws.
(x) Except as set forth in the Registration Statement, there
is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against the Company or any
of its subsidiaries which is required to be disclosed in the
Registration Statement or which might in the opinion of the Company
result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, or
which might materially and adversely affect the properties or assets
thereof or which might materially and adversely affect the
consummation of this Agreement; all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party
or of which any of their respective property or assets is the subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to its business, are,
considered in the aggregate, not material; and there are no contracts
or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
(xi) The Company owns or possesses or has obtained all
material governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to lease or own, as the case may
be, and to operate its properties and to carry on its business as
presently conducted where its ownership or lease of substantial
properties or the conduct of its business requires such ownership or
possession or the obtaining of such governmental licenses, permits,
consents, orders, approvals and other authorizations and where the
failure to do so would materially adversely affect the business or
financial condition of the Company and its subsidiaries considered as
one enterprise.
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(xii) The documents incorporated by reference in the
Prospectus, at the time they were filed with the Commission, complied
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission promulgated thereunder (the
"1934 Act Regulations"), and, when read together with the other
information in or incorporated by reference in the Prospectus, did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(xiii) The Company is not, and upon issuance and sale of the
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xiv) The Securities, upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange Act,
as amended, and the rules and regulations of the Commodity Futures
Trading Commission under the Commodity Exchange Act.
(b) Any certificate delivered pursuant to this Agreement or the
transactions contemplated hereby and signed by any director or officer of
the Company and delivered to the Representative or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company
to each Underwriter as to the matter covered thereby on the date of such
certificate.
2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the
Company, at the price set forth in Schedule B, the aggregate amount of
Securities set forth in Schedule A opposite the name of such Underwriter,
plus any additional principal amount of Securities which such Underwriter
may become obligated to purchase pursuant to the provisions of Section 10
hereof.
(b) Payment of the purchase price for, and delivery of the
certificates for, the Securities shall be made at the offices of O'Melveny
& Xxxxx LLP, 000 Xxxxx Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 or at
such other place as shall be agreed upon by the Representative and the
Company, at 8:00 a.m., Los Angeles time, on December 14, 1998 (unless
postponed in accordance with Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery
being herein called "Closing Time").
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(c) Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to the Representative for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them.
Certificates for the Securities shall be in such denominations ($1,000 or
integral multiples thereof) and registered in such names as the
Underwriters may request in writing at least two business days before
Closing Time. It is understood that each Underwriter has authorized the
Representative, for their respective accounts, to accept delivery of,
receipt for, and make payment of the purchase price for, the Securities it
has agreed to purchase. The Representative, individually and not as
representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by
any Underwriter whose funds have not been received by Closing Time, but
such payment shall not relieve such Underwriter from its obligations
hereunder. The certificates for the Securities will be made available for
examination and packaging by the Representative not later than 10:00 a.m.
on the last business day prior to Closing Time at the offices of The Chase
Manhattan Bank.
3. COVENANTS OF THE COMPANY. The Company covenants with each Underwriter
as follows:
(a) The Company, subject to Section 3(b),will comply with the
requirements of Rule 424(b), as applicable, and will promptly notify the
Underwriters and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective or any
supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any Prospectus, or of the
suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation of any proceedings for any of such
purposes; and (v) any change in the rating assigned by any nationally
recognized statistical rating organization to any debt securities
(including the Securities) of the Company, or the public announcement by
any nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of
any such debt securities, or the withdrawal by any nationally recognized
statistical rating organization of its rating of any such debt securities
since the date of this Agreement. The Company will make every reasonable
effort to prevent the issuance of any such stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) The Company will give the Underwriters notice of its intention to
file or prepare any additional registration statement with respect to the
registration of additional Securities, any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment,
supplement or revision to either the prospectus included in
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the Registration Statement at the time it became effective or to the
Prospectus (other than an amendment or supplement providing solely for the
establishment of or change in, the interest rates, maturities, price or
other terms of Securities or similar changes or an amendment or supplement
which relates exclusively to an offering of debt securities under the
Registration Statement other than the Securities), whether by the filing of
documents pursuant to the 1934 Act (other than any Current Report on Form
8-K relating exclusively to the issuance of debt securities under the
Registration Statement other then the Securities), the 1933 Act, or
otherwise and will furnish the Underwriters with copies of any such
amendment or supplement or other documents proposed to be filed or prepared
a reasonable time in advance of such proposed filing or preparation, as the
case may be, and will not file any such amendment or supplement or use any
such prospectus to which the Underwriters or counsel for the Underwriters
shall reasonably object.
(c) The Company has delivered or will deliver to the Underwriters as
many conformed copies of the Registration Statement (as originally filed)
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) as the Underwriters may reasonably
request. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) The Company has delivered and will deliver to each Underwriter,
from time to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act or
the respective applicable rules and regulations of the Commission
thereunder. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters shall be identical to the electronically
transmitted copies of thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(e) If any event shall occur as a result of which it is necessary, in
the reasonable opinion of counsel for the Underwriters or counsel for the
Company, to amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
required to be delivered to a purchaser, or if it shall be necessary in the
reasonable opinion of either such counsel, to amend or supplement the
Registration Statement or Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or
otherwise so as may be necessary to correct such untrue statement or
omission, and the Company will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
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(f) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States
as the Underwriters may designate; provided, however, that the Company
shall not be obligated to file any general consent to service of process or
to qualify as a foreign corporation in any jurisdiction in which it is not
so qualified. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualifications
in effect for a period of not less than one year from the effective date of
this Agreement. The Company will promptly advise the Underwriters of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Securities for sale in any state or
jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(g) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve month
period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in said Rule 158)
of the Registration Statement.
(h) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(i) Immediately following the execution of this Agreement, the
Company will prepare, and file or transmit for filing with the Commission
in accordance with Rule 424(b), copies of a Prospectus containing the terms
of the Securities and such other information as the Underwriters and the
Company deem appropriate.
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15
of the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(k) From the date of this Agreement until Closing Time, the Company
will not, without the prior written consent of the Underwriters, directly
or indirectly, sell, offer to sell, contract to sell, or otherwise dispose
of, or announce the offering of, any debt securities denominated in United
States dollars, or any security exchangeable into such debt securities,
which have similar terms as the Securities.
4. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (a) the
preparing, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (b) the printing and delivery of this Agreement, the Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (c) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, (d)
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the fees and disbursements of the Company's counsel and accountants, (e) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof (not to exceed $5,000), including filing
fees and the fee and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (f) the printing and delivery to the
Underwriters of the Prospectus and any amendments or supplements thereto, (g)
the preparation, printing and delivery to the Underwriters of copies of the
Blue Sky Survey and any supplement thereto, (h) fees and expenses of the
Trustee, including fees and disbursements of counsel for the Trustee in
connection with the Securities, and (h) any fees of Xxxxx'x Investors
Service, Inc. and Standard & Poor's Ratings Group.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall, as
previously agreed, reimburse the Underwriters for their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the Company contained in Section 1 hereof or in certificates of
any officer of Company delivered pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at Closing Time no stop
order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of the Underwriters. A prospectus shall have been filed with
the Commission in accordance with Rule 424(b).
(b) At Closing Time, the Underwriters shall have received:
(1) The opinion, dated as of Closing Time, of Xxxx Xxxxx,
Esq., General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of California.
(ii) The Company has corporate power and corporate
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and in
each document filed pursuant to the 1934 Act and incorporated by
reference into the Prospectus.
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(iii) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company, and has
been duly executed and delivered by the Company.
(iv) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company and has
been duly executed and delivered by the Company and the Indenture
has been qualified under the 1939 Act. If California law were to
apply, the Indenture would constitute a legally valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by the application of
general principles of equity including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a
proceeding in equity or at law.
(v) The Securities (in the form of specimen certified
by the Company's Secretary and examined by such counsel) are in a
form permitted by the Indenture, and have been duly authorized by
all necessary corporate action on the part of the Company for
issuance, offer and sale to the Underwriters as contemplated by
this Agreement and as provided for in the Prospectus. If
California law were to apply, the Securities when executed and
authenticated as specified in the Indenture and delivered against
payment of the purchase price therefor pursuant to this
Agreement, would constitute legally valid and binding obligations
of the Company, enforceable against the Company in accordance
with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by the application of general
principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in
equity or at law; and the Securities will be entitled to the
benefits of the Indenture.
(vi) To such counsel's knowledge, the Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which its ownership or
lease of substantial properties or the conduct of its business
requires such qualification and in which the failure to so
qualify and be in good standing would materially adversely affect
its business or financial condition.
12
(vii) The Registration Statement has been declared
effective under the 1933 Act and, to his knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission.
(viii) At the time the Registration Statement became
effective, the Registration Statement (other than the financial
statements and supporting schedules and other financial,
statistical and accounting data included or incorporated by
reference and the Statements of Eligibility on Form T-1 filed as
exhibits therein, as to which no opinion need be rendered)
appeared on its face to comply as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the 1939 Act Regulations.
(ix) The information in the Prospectus under the
captions "Description of the Notes" and "Description of Debt
Securities" to the extent that it constitutes matters of law,
summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by him and is correct in all
material respects.
(x) No authorization, approval, consent or order of
any court or governmental authority or agency is required in
connection with the sale of the Securities to the Underwriters,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or state
securities laws.
(xi) Each document filed pursuant to the 1934 Act
(other than the financial statements and supporting schedules and
other financial, statistical and accounting data included
therein, as to which no opinion need be rendered) and
incorporated by reference in the Prospectus when filed, appeared
on its face to comply as to form in all material respects with
the 1934 Act and the 1934 Act Regulations thereunder in effect at
the date of their filing.
(xii) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required
to be disclosed in the Registration Statement or in each document
filed pursuant to the 1934 Act and incorporated by reference in
the Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or to which any of their
property is subject which are not described in the Registration
Statement or in each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus, including ordinary
routine litigation incidental to the business, are, considered in
the aggregate, not material.
13
(xiii) To such counsel's knowledge, no default exists in
the due performance or observance by the Company of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument described or referred to in the Registration
Statement or filed as an exhibit thereto or incorporated by
reference therein, which default would have a material adverse
effect on the financial condition, earnings, business affairs,
business prospects, properties or results of operations of the
Company and its subsidiaries considered as one enterprise.
(xiv) The execution and delivery of this Agreement, the
Indenture, the Securities and the consummation of the
transactions contemplated herein and therein will not (A)
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument known
to such counsel to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, (B) result in any violation of the
provisions of the charter or bylaws of the Company, or (C) to
such counsel's knowledge, result in any violation of any
applicable law, administrative regulation or administrative or
court decree.
(xv) The shares of issued and outstanding Common Stock
of the Company have been duly authorized and validly issued and
are fully paid and non-assessable.
(xvi) To such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in
the Registration Statement or in each document filed pursuant to
the 1934 Act and incorporated by reference in the Prospectus, or
to be filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto, and the
descriptions thereof are correct in all material respects.
Additionally such counsel shall state that he does not believe that the
Registration Statement and each document filed pursuant to the 1934 Act and
incorporated by reference therein (each, an "Incorporated Document")
considered as a whole as of the time the Registration Statement became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, not misleading, or that the Prospectus and the
Incorporated Documents, considered as a whole, as of the date of the
Prospectus Supplement and at the Closing Time, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading. Such
14
counsel may state that he expresses no view as to the Statements of
Eligibility on Form T-1, financial statements and supporting schedules and
other financial, statistical and accounting data included or incorporated by
reference in such Registration Statement or Prospectus.
(2) The opinion, dated as of Closing Time, of O'Melveny & Xxxxx LLP,
counsel for the Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of California.
(ii) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company, and has
been duly executed and delivered by the Company.
(iii) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company and has
been duly executed and delivered by the Company and the Indenture
has been qualified by the 1939 Act. Assuming the due
authorization, execution and delivery thereof by the Trustee, the
Indenture constitutes a legally valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally (including, without limitation, fraudulent
conveyance laws) and by the application of general principles of
equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at
law.
(iv) The Securities (in the form of specimen certified
by the Company's Secretary and examined by such counsel) are in a
form permitted by the Indenture, have been duly authorized by all
necessary corporate action on the part of the Company for
issuance, offer and sale to the Underwriters as contemplated by
this Agreement and as provided for in the Prospectus, when
executed and authenticated as specified in the Indenture and
delivered against payment of the purchase price therefor pursuant
to this Agreement and as provided for in the Prospectus, will
constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally (including, without limitation, fraudulent
conveyance laws) and by the application of general principles of
equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether
15
considered in a proceeding in equity or at law; and the
Securities will be entitled to the benefits of the Indenture.
(v) The Registration Statement has been declared
effective under the 1933 Act and, to their knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(vi) At the Closing Time, the Registration Statement
(other than the financial statements and supporting schedules and
other financial and statistical data included therein, as to
which no opinion need be rendered) appeared on its face to comply
as to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the
1939 Act Regulations.
(vii) The Company is not an "investment company" as such
term is defined in the 1940 Act.
Additionally, such counsel shall state that subject to the foregoing
and relying as to their determination of materiality to an extent upon
opinions of officers and other representatives of the Company, no facts
have come to their attention that has caused them to believe that the
Registration Statement and the Incorporated Documents, considered as a
whole as of the time the Registration Statement became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein,
not misleading, or that the Prospectus and the Incorporated Documents,
considered as whole, as of the date of the Prospectus Supplement and at the
Closing Time, contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Such counsel may state that they make no statement as to Statements of
Eligibility on Form T-1, the financial statements and supporting schedules
and other financial, statistical and accounting data contained or
incorporated by reference therein.
(c) At Closing Time there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Registration
Statement or the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Underwriters
shall have received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly made at and
as of Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to
16
be performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and to their knowledge, no proceedings for that purpose have been initiated
or threatened by the Commission.
(d) At the time of execution of this Agreement, the Underwriters shall
have received from PricewaterhouseCoopers LLP a letter dated such date, in form
and substance satisfactory to the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain other information contained in the Registration Statement and the
Prospectus.
(e) At Closing Time, the Underwriters shall have received from
PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the date referred to shall be a date
not more than three business days prior to Closing Time.
(f) At Closing Time, the Company's long term debt shall be rated at least
Aa1 by Moody's Investor's Service, Inc. ("Moody's") and AAA by Standard & Poor's
Ratings Group, a division of XxXxxx-Xxxx, Inc. ("Standard & Poor's") and from
and including the date of this Agreement to and including the Closing Time,
there shall not have occurred a downgrading in the ratings assigned to the
Company's long term debt by any "nationally recognized statistical rating
agency", as that term is defined by the Commission for the purposes of Rule
436(g)(2) under the 1933 Act and during such period no such organization shall
have publicly announced that it has under surveillance or review its ratings of
the long term debt of the Company; provided however, that prior to the date of
this Agreement, Standard & Poor's placed the AAA rating of the Company on
"CreditWatch" with negative implications, and Moody's changed the long term
rating outlook for non-Yen denominated borrowings of the Company from stable to
negative.
(g) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(h) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
17
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all reasonable expenses whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by the
Representative to the extent authorized in Section 6(c)) reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto), or the Prospectus (or any amendments or
supplements thereto), and provided further, however, that the indemnity
agreement contained in this Section 6(a) shall not inure to the benefit of any
Underwriter with respect to any loss, liability, claim, damage or expense
arising from the sale of Securities by such Underwriter to any person if all of
the following occur: (x) such Underwriter has failed to send or give a copy of
the Prospectus (excluding documents incorporated by reference therein), as it
may then have been amended or supplemented, to that person at or prior to the
time of written confirmation of such
18
sale to the extent necessary in accordance with applicable law; (y) the
untrue statement or alleged untrue statement of a material fact in or
omission or alleged omission of a material fact from a previous form of
Prospectus was corrected in the Prospectus, as then amended or supplemented;
and (z) such Underwriter shall have been notified as to such amendment or
supplement as set forth herein and the Company shall have delivered copies of
the Prospectus, as so amended or supplemented, to such Underwriter.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions made in the
Registration Statement (or any amendment or supplement thereto), or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment or supplement thereto) or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt written notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party of such commencement shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may assume the defense of the indemnified
party by retaining counsel reasonably satisfactory to the indemnified party
to represent the indemnified party and any others the indemnifying party
may designate in such proceeding and shall pay the fees and expenses of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and disbursements of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In no event
shall the indemnifying parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) for all indemnified parties
in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
19
under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent does not contain a statement as to or an admission of
fault, culpability, or a failure to act by or on behalf of any indemnified
party (unless such statement is agreed to by the indemnified party in
writing); provided, however, that in the event such settlement, compromise or
consent by the indemnifying party does not include an unconditional release
of each indemnified party from all liability arising out of any litigation,
investigation, proceeding or claim, the provisions of this section with
respect to indemnification shall continue and survive.
7. Contribution.
If the indemnification provided for in Section 6 hereof is for any
reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters, as
incurred, in such proportions that each Underwriter is responsible for that
portion represented by the percentage that the total commissions and
underwriting discounts received by such Underwriter pursuant to this
Agreement to the date of such liability bears to the initial public offering
price of the Securities sold to or through such Underwriter to the date of
such liability to which such losses, liabilities, claims, damages or expenses
relate and the Company is responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
If, however, the allocation provided in the previous paragraph is not
permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect, not only the relative benefits received by the
Company on the one hand, and the applicable Underwriter(s), on the other
hand, in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses but also the relative fault
of the Company, on the one hand, and the applicable Underwriters, on the
other hand in connection with the offering of the Notes that were the subject
of the claim for indemnification. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to
be in the same respective proportions as the total proceeds (net of the total
discounts or commissions) from the sale of the Securities (before deducting
expenses) received by the Company bears to the total discount or commission
received by the applicable Underwriters in respect thereof. The relative
fault of the Company, on the one hand, and the applicable Underwriters, on
the other hand, shall be determined by reference to, among other things,
whether any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied
by the Company or by the applicable Underwriter(s) and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
20
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into
account of the equitable considerations referred to above in Section 6. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission covered by
Section 6(a) hereof.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
principal amount of Securities set forth opposite their respective names in
Schedule A hereto and not joint.
8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties, indemnities and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
9. TERMINATION OF AGREEMENT
(a) The Underwriters may terminate this Agreement, immediately upon
notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the execution of this Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there shall have occurred any
outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to
make it, in the reasonable judgment of the Underwriters (after consultation
with the Company), impracticable to market the Securities or enforce
contracts for the
21
sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended by the Commission or a national securities
exchange, or if trading generally on either the American Stock Exchange
or the New York Stock Exchange has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of
the Commission or any other governmental authority, or if a banking
moratorium has been declared by federal, California or New York
authorities, or (iv) if the rating assigned by either Standard & Poor's or
Xxxxx'x Investors Service, Inc. to any debt securities of the Company shall
have been lowered or if either such rating agency shall have, subsequent to
the date of this Agreement, publicly announced that it has placed any debt
securities of the Company on what is commonly termed a "watch list" for
possible downgrading.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party
except as provided in Section 4 hereof.
10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail at Closing Time to purchase the Securities which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Underwriters shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Underwriters shall not have completed such arrangements
within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Underwriters or the Company shall have the
right to postpone Closing Time for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements.
11. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters at 245
00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Capital Markets; and
notices to the Company shall be directed to it at 00000 Xxxxx Xxxxxxx Xxxxxx
X000, Xxxxxxxx, Xxxxxxxxxx 00000, attention of Corporate Treasury Manager.
12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and
7 hereof and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof
are intended to be for the sole and exclusive benefit of the Underwriters and
the Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any underwriter shall be deemed to be a successor by reason merely of
such purchase.
13. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original hereof.
14. CAPTIONS. The captions in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
15. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except where otherwise
provided, specified times of day refer to New York City time.
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ XXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
General Manager
24
CONFIRMED AND ACCEPTED,
as of the date first above written:
BEAR, XXXXXXX & CO. INC.
Acting severally on behalf of itself and the several
underwriters named in Schedule A hereto
By: /s/ XXXXXXX X. X'XXXXX
----------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Senior Managing Director
25
SCHEDULE A
PRINCIPAL AMOUNT OF
NAME OF UNDERWRITER SECURITIES
-------------------------------------------- -------------------
Bear, Xxxxxxx & Co. Inc. $ 60,000,000
Artemis Capital Group, Inc. $ 60,000,000
Xxxxxxxx & Partners, L.P. $ 60,000,000
Xxxxxxx & Co., Inc. $ 60,000,000
Xxxxxxxx Capital Partners, L.P. $ 60,000,000
-------------
-------------
Total $ 300,000,000
A-1
SCHEDULE B
1. The initial public offering price of the Securities shall be
99.802% of the principal amount thereof.
2. The purchase price to be paid by the Underwriters for the
Securities shall be 99.202% of the principal amount thereof.
3. The interest rate on the Securities shall be 5.50% per annum.
B-1
