$400,000,000
TOYOTA MOTOR CREDIT CORPORATION
(a California corporation)
5 1/2% Notes due September 17, 2001
PURCHASE AGREEMENT
September 11, 1998
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXX BROTHERS INC.
XXXXXXX XXXXX BARNEY INC.
x/x XXXXXXX XXXXX & XX.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
as Representative of the Underwriters
Ladies and Gentlemen:
Toyota Motor Credit Corporation, a California corporation (the
"Company"), confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, ("Xxxxxxx Xxxxx"), Xxxxxxx, Xxxxx & Co.,
Xxxxxx Brothers Inc. and Xxxxxxx Xxxxx Xxxxxx Inc. (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for which Xxxxxxx Xxxxx is acting
as 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 $400,000,000
aggregate principal amount of the Company's 5 1/2% Notes due September 17,
2001 (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.
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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 the Prospectus Supplement dated September
11, 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.
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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:
(i) The Company meets the requirements for use of Form S-3 under
the 1933 Act. At the time the Registration Statement became effective,
the Registration Statement complied and at the Closing Time, the
Registration Statement will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act, and the rules and regulations of the Commission promulgated
thereunder (the "1939 Act Regulations") and no stop order suspending the
effectiveness of the Registration Statement (including any Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information has
been complied with. The Registration Statement (including any Rule
462(b) Registration Statement) at the time it became effective, did not,
and each time thereafter at which any amendment to the Registration
Statement (including any Rule 462(b) Registration Statement) becomes
effective and as of the Closing Time, will not, considering the
Registration Statement and all Incorporated Documents (as defined in
Section 5(b)(3)) considered as a whole, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, as of the date hereof does not, and at the Closing Time,
will not, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided however, that the representations and warranties in
this subsection shall not apply to that part of the Registration
Statement which shall constitute the Statements of Eligibility under the
1939 Act on Form T-1 of the Trustee or apply to statements or omissions
from the Registration Statement or Prospectus made in reliance upon and
in conformity with information furnished to the Company in writing by
any Underwriter through Xxxxxxx Xxxxx 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
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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.
(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
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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.
(vii) The Indenture has been duly and validly authorized, executed
and delivered by the Company and assuming it has been duly and validly
authorized, executed and delivered by the Trustee, constitutes a legally
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by the application of general principles
of equity, including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or at law.
(viii) The Securities have been duly and validly authorized by
the Company for issuance, offer and sale pursuant to this Agreement and,
when executed, authenticated and delivered pursuant to the provisions of
the Indenture and this Agreement against payment of the consideration
set forth herein and in the Prospectus, will constitute legally valid
and binding obligations of the Company enforceable against the Company
in accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without limitation, fraudulent
conveyance laws) and by the application of general principles of equity,
including without limitation, the concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or at law; and the
Securities will be entitled to the benefits of the Indenture; and the
Securities and the Indenture conform in all material respects to all
statements relating thereto contained in the Registration Statement and
the Prospectus.
(ix) Neither the Company nor any of its Subsidiaries is in
violation of its charter or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its Subsidiaries is a
party or by which it may be bound, or to which any of the property or
assets of the Company or any of its Subsidiaries is subject, which
violation or default would materially adversely affect the business or
financial condition of the Company and its Subsidiaries considered as
one enterprise; and the execution, delivery and performance of this
Agreement and the Indenture and the consummation of the transactions
contemplated herein and therein will not conflict with, or constitute a
breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any of its Subsidiaries pursuant to, any material
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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 xstate securities or Blue Sky laws.
(x) Except as set forth in the Registration Statement, there is
no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company, threatened, against the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement or which might in the opinion of the Company result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, or which might materially
and adversely affect the properties or assets thereof or which might
materially and adversely affect the consummation of this Agreement; all
pending legal or governmental proceedings to which the Company or any of
its subsidiaries is a party or of which any of their respective property
or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to its
business, are, considered in the aggregate, not material; and there are
no contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration Statement
by the 1933 Act or by the 1933 Act Regulations which have not been so
filed.
(xi) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently
conducted where its ownership or lease of substantial properties or the
conduct of its business requires such ownership or possession or the
obtaining of such governmental licenses, permits, consents, orders,
approvals and other authorizations and where the failure to do so would
materially adversely affect the business or financial condition of the
Company and its subsidiaries considered as one enterprise.
(xii) The documents incorporated by reference in the
Prospectus, at the time they were filed with the Commission, complied in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission promulgated thereunder (the
"1934 Act Regulations"), and, when read together with the other
information in or incorporated by reference in the Prospectus, did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated
6
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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx and the Company, at 7:00
a.m., Los Angeles time, on September 16, 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 Xxxxxxx Xxxxx and the Company
(such time and date of payment and delivery being herein called "Closing
Time").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx, 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. Xxxxxxx
Xxxxx, individually
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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 Xxxxxxx Xxxxx 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 promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(b) The Company will give the Underwriters notice of its
intention to file or prepare any additional registration statement with
respect to the registration of additional Securities, any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus
(other than an amendment or supplement providing solely for the
establishment of or change in, the interest rates, maturities, price or
other terms of Securities or similar changes or an amendment or supplement
which relates exclusively to an offering of debt securities under the
Registration Statement other than the Securities), whether by the filing of
documents pursuant to the 1934 Act (other than any Current Report on Form
8-K relating
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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 maybe necessary to correct such untrue statement or
omission, and the Company will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Underwriters may designate; provided, however, that
the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in
which it is
9
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) 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
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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.
(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.
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(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.
(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.
12
(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 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.
(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
13
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 counsel may state that they express 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.
14
(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, when executed
and authenticated as specified in the Indenture and delivered
against payment of the purchase price therefor pursuant to
this Agreement and as provided for in the Prospectus, will
constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by the
application of general principles of equity including,
without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability
of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law; and
the Securities will be entitled to the benefits of the
Indenture.
15
(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 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.
16
(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. and AAA by Standard &
Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc. and since the date of
this Agreement, 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 no such organization
shall have publicly announced that it has under surveillance or review its
ratings of the long term debt of the Company.
(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.
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
17
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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto), or the Prospectus (or any
amendments or supplements thereto), and provided further, however, that the
indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any Underwriter with respect to any loss, liability, claim, damage
or expense arising from the sale of Securities by such Underwriter to any
person if all of the following occur: (x) such Underwriter has failed to
send or give a copy of the Prospectus (excluding documents incorporated by
reference therein), as it may then have been amended or supplemented, to that
person at or prior to the time of written confirmation of such sale to the
extent necessary in accordance with applicable law; (y) the untrue statement
or alleged untrue statement of a material fact in or omission or alleged
omission of a material fact from a previous form of Prospectus was corrected
in the Prospectus, as then amended or supplemented; and (z) such Underwriter
shall have been notified as to such amendment or supplement as set forth
herein and the Company shall have delivered copies of the Prospectus, as so
amended or supplemented, to such Underwriter.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any and all loss, liability, claim, damage and expense
18
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 Xxxxxxx
Xxxxx 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 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
19
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.
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
20
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
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 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
21
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 North Tower, World Financial Center, New York,
New York 10281-1307, attention Capital Markets Desk; 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.
22
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
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXX BROTHERS INC.
XXXXXXX XXXXX BARNEY INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
For themselves and as Representative of the
Underwriters named in Schedule A hereto.
24
SCHEDULE A
Principal Amount
Name of Underwriter of Securities
------------------- ----------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $256,000,000
Xxxxxxx, Sachs & Co. $ 48,000,000
Xxxxxx Brothers Inc. $ 48,000,000
Xxxxxxx Xxxxx Barney Inc. $ 48,000,000
------------
------------
Total $400,000,000
------------
------------
A-1
SCHEDULE B
1. The initial public offering price of the Securities shall be 100%
of the principal amount thereof, plus accrued interest, if any, from the date
of issuance.
2. The purchase price to be paid by the Underwriters for the
Securities shall be 99.65% of the principal amount thereof.
3. The interest rate on the Securities shall be 5 1/2% per annum.
B-1
