FIFTH AMENDED AND RESTATED AGENCY AGREEMENT
BY AND AMONG
TOYOTA MOTOR CREDIT CORPORATION
AS ISSUER
-AND-
JPMORGAN CHASE BANK, N.A.
AS AGENT
-AND-
J.P. MORGAN BANK LUXEMBOURG S.A.
AS
PAYING AGENT
DATED AS OF SEPTEMBER 30, 2005
IN RESPECT OF A
U.S.$20,000,000,000
EURO MEDIUM-TERM NOTE PROGRAM
<PAGE>
TABLE OF CONTENTS
PAGE
1.
DEFINITIONS AND
INTERPRETATIONS......................................2
2.
APPOINTMENT OF AGENT AND PAYING
AGENTS...............................7
3.
ISSUE OF TEMPORARY GLOBAL
NOTES......................................8
4.
ISSUE OF PERMANENT GLOBAL
NOTES......................................9
5.
ISSUE OF DEFINITIVE
NOTES...........................................10
6.
EXCHANGES...........................................................11
7.
TERMS OF
ISSUE......................................................11
8.
PAYMENTS............................................................13
9.
DETERMINATIONS AND NOTIFICATIONS IN RESPECT OF
NOTES................15
10. NOTICE OF
ANY WITHHOLDING OR DEDUCTION..............................16
11. DUTIES OF
THE AGENT IN CONNECTION WITH EARLY REDEMPTION.............17
12.
PUBLICATION OF
NOTICES..............................................17
13.
CANCELLATION, RESALE
AND REISSUANCE OF NOTES, RECEIPTS,
COUPONS AND
TALONS.................................................17
14. ISSUE OF
REPLACEMENT NOTES, RECEIPTS, COUPONS AND TALONS............19
15. COPIES OF
THIS AGREEMENT AND EACH FINAL TERMS AVAILABLE FOR
INSPECTION..........................................................20
16.
COMMISSIONS AND
EXPENSES............................................20
17.
INDEMNITY...........................................................21
18. REPAYMENT
BY THE AGENT..............................................21
19. CONDITIONS
OF APPOINTMENT...........................................21
20.
COMMUNICATION BETWEEN THE
PARTIES...................................23
21. CHANGES IN
AGENT AND PAYING AGENTS..................................23
22. MERGER AND
CONSOLIDATION............................................25
23.
NOTIFICATIONS.......................................................25
24. CHANGE OF
SPECIFIED OFFICE..........................................26
25.
NOTICES.............................................................26
26. TAXES AND
STAMP DUTIES..............................................26
27. CURRENCY
INDEMNITY..................................................26
28.
AMENDMENTS: MEETINGS
OF HOLDERS....................................27
29. CALCULATION AGENCY
AGREEMENT........................................29
30.
REDENOMINATION AND
EXCHANGE.........................................29
31.
DESCRIPTIVE
HEADINGS................................................32
32. GOVERNING
LAW.......................................................32
33.
COUNTERPARTS........................................................32
<PAGE>
APPENDICES
Page
APPENDIX A
Terms and Conditions of the
Notes...........................................A-1
APPENDIX B
Forms of Global and Definitive Notes,
Coupons, Receipts
and
Talons..................................................................B-1
Appendix B-1--Form of Temporary Global
Notes..............................-1--1
Schedule One--Part I--Interest
Payments.........................B-1--6
Schedule One--Part II--Installment
Payments.....................B-1--7
Schedule Two--Schedule of Exchanges for Notes
Represented by a Permanent Global Note or Definitive Notes,
or Redemptions or Purchases and
Cancellations.....................1--8
Schedule Three--Form of Certificate to be Presented
by Appropriate Clearing
System....................................1--9
Certificate "A"--Form of Certificate to be Presented
to Appropriate Clearing
System.....................................-11
Appendix B-2--Form of Permanent Global
Note...............................-2--1
Schedule One--Part I--Interest
Payments.........................B-2--6
Schedule One--Part II--Installment
Payments.....................B-2--7
Schedule Two--Schedule of Exchanges of a Temporary
Global Note and for Definitive Notes, or Redemptions or
Purchases and
Cancellations.......................................2--9
Appendix B-3--Definitive
Note.............................................-3--1
Appendix B-4--Form of
Coupon..............................................-4--1
Appendix B-5--Form of
Receipt.............................................-5--1
Appendix B-6--Form of
Talon...............................................-6--1
APPENDIX C
Form of Calculation Agency
Agreement........................................C-1
APPENDIX D
Form of Operating & Administrative
Procedures Memorandum....................D-1
Annex A--Settlement
Procedures.....................................D-3
Annex B to
Appendix D--Form of Final Terms.........................D-6
Annex C--Form Letter from Lead
Manager/Dealer.....................D-20
Annex D--Trading Desk
Information.................................D-21
APPENDIX E
Form of the
Notes..........................................................E-1
<PAGE>
FIFTH AMENDED AND RESTATED AGENCY AGREEMENT
in respect of a
EURO MEDIUM-TERM NOTE PROGRAM
WHEREAS, the Company has entered into the
Fifth Amended and Restated Program
Agreement dated September 30, 2005 (the
"Program Agreement") with Merrill Lynch
International, BNP Paribas, Credit Suisse
First Boston (Europe) Limited,
Dresdner Bank Aktiengesellschaft, J.P.
Morgan Securities Ltd., Morgan Stanley &
Co. International Limited, Nomura
International plc, and UBS Limited (the
"Dealers") pursuant to which the Company
may issue notes (the "Notes") in an
aggregate principal amount of up to
U.S.$20,000,000,000 (or its equivalent in
other currencies or currency units)
outstanding at any time;
WHEREAS, the Company entered into an Agency
Agreement dated October 30, 1992
with JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank), as
agent (the "Agent") and J.P. Morgan Bank
Luxembourg S.A. (formerly known as
Chase Manhattan Bank Luxembourg S A.), as
paying agent (the "Paying Agent") in
connection with the issuance of Notes under
the Program Agreement (the "Original
Agreement"), which Original Agreement was
amended by Amendment No. 1 dated July
26, 1993;
WHEREAS, the Company entered into an
Amended and Restated Agency Agreement dated
July 28, 1994 with the Agent and the Paying
Agent, as amended by Amendment No. 1
dated as of July 27, 1995 and Amendment No.
2 dated July 19, 1996 (the "First
Amended and Restated Agency
Agreement");
WHEREAS, the Company entered into a Second
Amended and Restated Agency Agreement
dated July 24, 1997 with the Agent and the
Paying Agent, as amended by Amendment
No. 1 dated July 24, 1998, Amendment No. 2 dated July 23, 1999,
and Amendment
No. 3 dated July 28, 2000 (as amended,
the "Second
Amended and Restated
Agency
Agreement");
WHEREAS, the Company entered into a Third
Amended and Restated Agency Agreement
dated October 4, 2000 with the Agent and the
Paying Agent, as amended by
Amendment No. 1 dated October 3, 2001 (as amended, the "Third Amended and
Restated Agency Agreement"); and
WHEREAS, the Company entered into a Fourth
Amended and Restated Agency Agreement
dated October 1, 2002 with the Agent and the
Paying Agent, as amended by
Amendment No. 1 dated September 30, 2003
and Amendment No. 2 dated September 29,
2004 (as amended, the "Fourth Amended and
Restated Agency Agreement"); and
WHEREAS, as permitted by Clause 28 of the
Fourth Amended and
Restated Agency
Agreement, the parties desire to amend and restate in its
entirety the
Fourth
Amended and Restated Agency Agreement.
NOW, THEREFORE, BE IT RESOLVED that the Fourth Amended and Restated Agency
Agreement is hereby amended and restated in
its entirety to read as follows:
THIS FIFTH AMENDED AND RESTATED AGENCY
AGREEMENT (the "Agreement") is made as of
September 30, 2005 BY AND AMONG:
(1) Toyota
Motor Credit
Corporation of Torrance, California, U.S.A. (the
"Company");
(2) JPMorgan
Chase Bank, N.A. of Trinity Tower, 9 Thomas More Street,
London E1W 1YT (the "Agent", which expression shall include any
successor agent appointed in accordance with Clause 21); and
(3) J.P.
Morgan Bank Luxembourg S.A. of 6 route de Treves, L-2633
Senningerberg (Municipality of Niederanven), Luxembourg (together
with
the Agent, the "Paying Agents", which expression shall include
any
additional or successor paying agent appointed in accordance
with
Clause 21 and "Paying Agent" shall mean any of the Paying
Agents).
1.
Definitions and Interpretations
(1) The
following expressions shall have the following meanings:
"Agreement Date" means, with respect to any Note, the date on
which
agreement is reached for the issuance of such Note as contemplated
in
Clause 2 of the Program Agreement, which in the case of Notes
issued on
a syndicated basis shall be the date the applicable Syndicate
Purchase
Agreement, the form of which is attached as Appendix F to the
Program
Agreement, is signed by all parties;
"Arranger" means Merrill Lynch International, and any company
appointed
to the position of arranger for the Program, and references in
this
Agreement to the Arranger shall be references to all of them;
"BALO" means the Bulletin des Annonces Legales Obligatoires;
"Base
Prospectus" means, as of any Agreement Date, any base
prospectus,
including the Offering Circular and the documents specifically
referred
to therein as constituting a base prospectus but excluding any
documents incorporated by reference that are not expressly stated
as
being incorporated by reference into such base prospectus, with
regard
to the issue by the Company of Notes (other than unlisted
Notes)
approved under the Prospectus Rules by the Financial Services
Authority
in accordance with the provisions of section 87A of the FSMA
(including
any supplementary prospectus published in accordance with the
provisions of this Agreement or otherwise);
"Clearstream" and "Clearstream, Luxembourg" means Clearstream
Banking,
societe anonyme;
"Conditions" means, in respect of any Series of Notes, the terms
and
conditions of the Notes of such Series, such terms and conditions
being
in the form or substantially in the form set out in Appendix A
hereto
or in such other form, having regard to the terms of the
relevant
Series, as may be agreed between the Company, the Agent and the
relevant Purchaser or Purchasers as from time to time;
"Coupon" has the meaning ascribed thereto in the Conditions;
"Dealer" means each of Merrill Lynch International, BNP Paribas,
Credit Suisse First Boston (Europe) Limited, Dresdner Bank
Aktiengesellschaft,
J.P. Morgan Securities
Ltd., Morgan Stanley &
Co. International
Limited, Nomura International plc, and
UBS
Limited, and any other
entities appointed as dealers from time to
time pursuant to the Program Agreement;
"Definitive Note" means a Note in definitive form substantially in
the
form set out in Appendix B-3 hereto (or in such other form as may
be
agreed between the Company, the Agent and the relevant Purchaser
or
Purchasers) issued or to be issued by the Company pursuant to
this
Agreement in exchange for the whole or part of a Temporary Global
or a
Permanent Global Note;
"Dual Currency Notes" means Notes in respect of which principal
and/or
interest is payable in one or more Specified Currencies other than
the
Specified Currency in which they are denominated;
"Established Rate" means the rate for the conversion of the
Specified
Currency (including compliance with rules relating to roundings
in
accordance with applicable European Community regulations) into
euro
established by the Council of the European Union pursuant to
Article
109l(4) of the Treaty;
"Euro", "euro" and "(euro)" mean the currency introduced at the
start
of the third stage of European economic and monetary union pursuant
to
the Treaty;
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear system;
"Final Terms" means the Final Terms issued in relation to each
Series
of Notes (substantially in the form of Annex B to the
Procedures
Memorandum) as a supplement to the Offering Circular and giving
details
of that Tranche;
"FSMA" means the Financial Services and Markets Act 2000 of the
United
Kingdom, as amended;
"Global Note" means a Temporary Global Note or a Permanent Global
Note;
"ISDA Definitions" means the 2000 ISDA Definitions published by
the
International Swaps and Derivatives Association, Inc., as
amended,
supplemented or updated from time to time;
"Issue Date" means, in respect of any Note, the date of issue
and
purchase of such Note pursuant to Clause 2 of the Program
Agreement,
being in the case of any Note in the form of a Definitive Note,
the
same date as the date of issue of the Global Note which
initially
represented such Note;
"Listing Agent" means, in relation to any Notes which are, or are
to
be, listed on a Stock Exchange other than the London Stock
Exchange,
such listing agent as the Company may from time to time appoint
for
purposes of liaising with such Stock Exchange or other relevant
authority;
"Listing Rules" means:
(a)
in the case of Notes which are, or are to be,
admitted to the Official List, the listing rules made
under section 73A of the FSMA; and
(b)
in the case of Notes which are, or are to be, listed
on a Stock Exchange other than the London Stock
Exchange, the listing rules and regulations for the
time being in force for such Stock Exchange;
"London Stock Exchange" means the London Stock Exchange plc or
such
other body to which its functions have be transferred;
"Member State" means a member state of the European Union;
"Note" means any note issued or to be issued by the Company
pursuant to
the Program Agreement, which Note may be represented by a Global
Note
or a Definitive Note;
"Noteholders" means
the several persons who are for the time being
holders of outstanding Notes save that for so long as any of the
Notes
are represented by a Global Note, each person who is for the time
being
shown in the records of Euroclear, Clearstream, or such other
applicable clearing agency as the holder of a particular
principal
amount of such Notes (other than a clearing agency (including
Clearstream and Euroclear) that is itself an account holder of
Clearstream, Euroclear or any other applicable clearing agency for
a
Series of Notes) (in which regard any certificate or other
document
issued by Euroclear, Clearstream or such other applicable
clearing
agency as to the nominal amount of such Notes standing to the
account
of any person shall be conclusive and binding for all purposes save
in
the case of manifest error) shall be treated by the Company, the
Agent
and any other Paying Agent as a holder of such nominal amount of
such
Notes for all purposes other than for the payment of principal
(including premium (if any)) or interest on such Notes, the right
to
which shall be vested, as against the Company, the Agent and any
other
Paying Agent, solely in the bearer of the Global Note in
accordance
with and subject to its terms (and the expressions
"Noteholder",
"holder of Notes" and related expressions shall be construed
accordingly);
"Offering Circular" means the Offering Circular relating to the
Program
which, excluding all documents incorporated by reference that are
not
expressly stated as being incorporated by reference into the
Base
Prospectus, will constitute a base prospectus for the purposes
of
Article 5.4 of the Prospectus Directive, as revised,
supplemented,
amended or updated from time to time, including in relation to
each
Tranche of Notes, the Final Terms relating to such Tranche, and
such
other documents as are from time to time incorporated therein
by
reference;
"Official List" has
the meaning
ascribed thereto in section 103 of
the FSMA;
"Outstanding" means, in relation to the Notes, all the Notes
issued
other than (a) those which have been redeemed in full in
accordance
with this Agreement or the Conditions, (b) those in respect of
which
the date for redemption in accordance with the Conditions has
occurred
and the redemption moneys therefor (including all interest (if
any)
accrued thereon to the date for such redemption and any interest
(if
any) payable under the Conditions after such date) have been duly
paid
to the Agent as provided herein (and, where appropriate, notice
has
been given to the Noteholders in accordance with Condition 16)
and
remain available for payment against presentation of Notes, (c)
those
which have become void under Condition 15, (d) those which have
been
purchased or otherwise acquired and cancelled as provided in
Condition
5 and those which have been purchased or otherwise acquired and
are
being held by the Company for subsequent resale or reissuance
as
provided in Condition 5 during the time so held, (e) those
mutilated or
defaced Notes which have been surrendered in exchange for
replacement
Notes pursuant to Condition 14, (f) (for the purposes only of
determining how many Notes are outstanding and without prejudice
to
their status for any other purpose) those Notes alleged to have
been
lost, stolen or destroyed and in respect of which replacement
Notes
have been issued pursuant to Condition 14 and (g) Temporary
Global
Notes to the extent that they shall have been duly exchanged in
whole
for Permanent Global Notes or Definitive Notes and Permanent
Global
Notes to the extent that they shall have been duly exchanged in
whole
for Definitive Notes, in each case pursuant to their respective
provisions;
"Permanent Global Note" means a Global Note substantially in the
form
set out in Appendix B-2 hereto (or in such other form as may be
agreed
between the Company, the Agent and the relevant Purchaser or
Purchasers) comprising Notes issued or to be issued by the Company
in
exchange for the whole or part of a Temporary Global Note issued
in
respect of the Notes of the same Series;
"Procedures Memorandum" means the Operating &
Administrative
Procedures Memorandum attached as Appendix D to this Agreement
as
amended or varied from time to time by agreement between the
parties
hereto with written approval of the Agent.
"Program" means the
Euro Medium-Term
Note Program
established by
the Program Agreement;
"Program Agreement" means the Fifth Amended and Restated
Program
Agreement dated September 30, 2005 between the Company and the
Dealers
concerning the purchase of Notes to be issued by the Company
and
includes any subsequent amendment or supplement thereto;
"Prospectus Directive" means Directive 2003/71/EC;
"Prospectus Rules"
means (i) in the case of Notes
which are, or
are to be, admitted to
the Official
List and admitted to trading
on the London Stock
Exchange, the
prospectus
rules made
under the
FSMA; and (ii) in the
case of Notes which are, or are to be, listed on
a Stock Exchange other
than the London Stock Exchange, the legal
provisions and/or the rules and regulations relating to prospectuses
for the time being in force for that Stock Exchange;
"Purchaser" means a Dealer or any third party other than a dealer
(as
defined in Section 2(12) of the United States Securities Act of
1933,
as amended), who agrees to purchase Notes pursuant to the
Program
Agreement and references to a relevant Purchaser or Purchasers mean
in
relation to any Note, the Purchaser or Purchasers to whom the
Company
has agreed to issue and sell such Note;
"Receipt" has
the meaning ascribed thereto in the Conditions;
"Redenomination Date" means in the case of interest bearing Notes,
any
date for payment of interest under the Notes or in the case of
Zero
Coupon Notes, any date, in each case specified by the Company in
the
notice given to Noteholders pursuant to Clause 30 and which falls
on or
after the start of the third stage of European economic and
monetary
union pursuant to the Treaty, or if the country of the
Specified
Currency is not one of the countries then participating in such
third
stage, which falls on or after such later date as it does so
participate and which falls before the date on which the
Specified
Currency ceases
to be a sub-division of the Euro;
"Series" means all
Notes which are
denominated in the
same currency
and which have the same Maturity Date, Interest Basis,
Redemption/Payment
Basis and interest
payment dates (if any)
(all as indicated in the applicable Final Terms)and the terms of
which
(except for the Issue Date or Interest Commencement Date(as the case
may be) and/or the Issue Price (all as indicated as aforesaid))
are
otherwise identical
(including
whether or not the
Notes are listed);
and the expressions "Notes of the relevant Series" and "holders
of
Notes of the relevant Series" and related expressions shall be
construed accordingly;
"Specified Currency" means the currency (which expression shall
include
euro and other currency units) in which Notes are denominated and,
in
the case of Dual Currency Notes, the currency or currencies in
which
payment in respect of the Notes is to be made;
"Stock Exchange" means the Official List, the London Stock Exchange
or
any other or further stock exchange(s) or relevant authority on
which
any Notes may from time to time be listed or admitted to trading;
and
references in this Agreement to the "relevant Stock Exchange"
shall, in
relation to any Notes, be references to the Stock Exchange on
which
such Notes are from time to time, or are intended to be, listed
or
admitted to trading;
"Talon" has the meaning ascribed thereto in the Conditions;
"TARGET system" means the Trans-European Automated Real-time Gross
Settlement Express Transfer System;
"Temporary Global Note" means a Global Note substantially in the
form
set out in Appendix B-1 hereto (or in such other form as may be
agreed
between the Company, the Agent and the relevant Purchaser or
Purchasers) comprising Notes issued or to be issued by the
Company
pursuant to the Program Agreement and issued in respect of the
Notes of
the same Series;
"Tranche" means all Notes of the same Series with the same Issue
Date
and Interest Commencement Date;
"Treaty"
means the Treaty establishing the European Community, as
amended by the Treaty on Economic Union;
"UK Listing Authority" means the name by which the Financial
Services
Authority is known being the body appointed under FSMA as
"competent
authority" to decide on the admission of securities to the
Official
List; and
"U.S.$" and "U.S.
dollar" mean the
lawful currency
for the time
being of the United States.
(2)
Terms and expressions (including the definitions of
currencies or composite currencies) defined in the
Conditions or Appendices or used in the applicable
Final Terms shall have the same meanings in this
Agreement, except where the context requires
otherwise.
(3)
Any references to Notes shall, unless the context
otherwise requires, include any Temporary Global
Notes, Permanent Global Notes and Definitive Notes.
(4)
As used herein, in relation to any Notes which are to
have a "listing" or to be "listed" on the London
Stock Exchange, "listing" or "listed" shall be
construed to mean that such Notes have been admitted
to the Official List and admitted to trading on the
London Stock Exchange.
2.
Appointment of Agent and Paying Agents
(1)
The Agent is hereby appointed as agent of the
Company, to act as issuing and principal paying
agent, upon the terms and subject to the conditions
set out below, for the purposes of, inter alia:
(a)
completing, authenticating and issuing Notes;
(b)
exchanging Temporary Global Notes for Permanent
Global Notes or Definitive Notes and in the case
where Temporary Global Notes are initially exchanged
for Permanent Global Notes, exchanging Permanent
Global Notes for Definitive Notes in accordance with
the terms of such Global Notes;
(c)
paying sums due on Global Notes and Definitive Notes,
Receipts and Coupons;
(d)
determining the interest and/or other amounts payable
in respect of the Notes in accordance with the
Conditions;
(e)
arranging on behalf of the Company for notices to be
communicated to the Noteholders and the relevant
Stock Exchanges;
(f)
ensuring that all necessary action is taken to comply
with the periodic reporting and notification
requirements of the Ministry of Finance of Japan
(including any monthly reports or such other reports
as may be required) and other applicable Japanese
authorities, or any other competent authority of any
relevant currency with respect to the Notes to be
issued under the Program;
(g)
receiving notice from Euroclear, Clearstream and/or
such other applicable clearing agency relating to the
certificates of non-U.S. beneficial ownership of the
Notes;
(h)
upon certification by the participating Dealer or
Dealers to the Agent that the distribution with
respect to a particular Tranche of Notes has been
completed, determining and certifying to Clearstream,
Euroclear or such other applicable clearing agency
the applicable Exchange Date;
(i)
performing all other obligations and duties imposed
upon it by the Conditions and this Agreement.
(j)
Any of the duties and obligations of the Agent in its
capacity of issuing and principal paying agent set
forth in Subclauses (a), (b), (c), (d), (e), (f),
(g), (h) and (i) may, with the consent of the
Company, be delegated by the Agent with respect to a
particular Series of Notes to a third party, provided
such third party's performance is subject to the
overall supervision and control of the Agent.
(2)
Each Paying Agent is hereby appointed as paying agent
of the Company, upon the terms and subject to the
conditions set out below, for the purposes of paying
sums due on Notes, Receipts and Coupons.
3. Issue of
Temporary Global Notes
(1)
Subject to Subclause 3(2), following receipt of the
applicable Final Terms signed by the Company with
respect of an issue of Notes in accordance with the
provisions of the Procedures Memorandum set out in
Appendix D hereto (as from time to time varied, with
the prior approval of the Agent, by the Company and
the relevant Purchaser or Purchasers of the Notes of
such issue), the Agent will take the steps required
of the Agent in the Procedures Memorandum. For this
purpose the Agent is authorized on behalf of the
Company:
(a)
to prepare a Temporary Global Note or Temporary
Global Notes containing the relevant Conditions and
to complete, in accordance with such Final Terms, the
necessary details on such Temporary Global Note(s);
(b)
to authenticate such Temporary Global Note(s); and
(c)
to deliver
such Temporary Global Note(s)
(i) to the specified
common depositary
of
Euroclear, Clearstream
and/or such other
applicable clearing
agency as is specified
in the
related Final Terms
against receipt from such
common depositary of
confirmation
that such common
depositary is holding the Temporary Global Note(s)
in safe custody for the account of Euroclear,
Clearstream or such other applicable clearing agency
and to instruct Euroclear,Clearstream and/or such
other applicable clearing agency (as the case may be)
to credit the Notes represented by such Temporary
Global Notes(s), unless otherwise agreed in writing
between the Agent and the Company, to the Agent's
distribution account (or in the case of a syndicated
bond issue, the lead manager's account),
or (ii) as otherwise agreed in writing between the
Company and the Agent.
(2)
The Agent shall only be required to perform its
obligations under
Subclause
3(1)
if it holds a master
Temporary Global
Note duly
executed by a person or persons authorized to
execute the same on behalf of the Company, which may
be used by the Agent for the purpose of preparing
Temporary Global
Note(s) in accordance
with
Subclause 3(1)(a).
(3)
The Agent shall provide Euroclear, Clearstream
and/or such other applicable clearing agency with the
notifications,
instructions or other information to
be given by the Agent
to Euroclear,
Clearstream
and/or such
other applicable clearing agency.
(4)
Any of the duties and
obligations of the
Agent set
forth in this Clause 3
may, with the consent of the
Company, be delegated
by the Agent with respect to
a particular
Series of Notes to a
third party,
provided such third
party's performance is
subject
to the overall supervision and control of the Agent.
4.
Issue of Permanent Global Notes
(1)
Subject to Subclause
4(2), upon the
occurrence of
any event which pursuant to the terms of a Temporary
Global Note requires the issue of a Permanent Global
Note, the Agent shall issue a Permanent Global Note
in accordance with the terms of the Temporary Global
Note. For this purpose the Agent is authorized on
behalf of the Company:
(a)
to prepare a Permanent Global Note containing the
relevant Conditions and to complete, in accordance
with the terms of the
Temporary Global Note,
the necessary details
on such Permanent Global
Note and attach a copy of the applicable Final
Terms to such Permanent Global Note;
(b)
to
authenticate such Permanent Global Note; and
(c) (i)
where the Temporary Global Note is being held by a
common depositary as
aforesaid, to
deliver such
Permanent Global
Note to the
specified common
depositary that is
holding the Temporary Global
Note for the time being on behalf of Euroclear,
Clearstream and/or such other applicable clearing
agency as is specified in the related Final Terms
in exchange for such
Temporary Global Note
or, in
the case of a partial
exchange, after
noting the
details of such exchange in the appropriate
spaces on both the
Temporary Global Note
and the
Permanent Global
Note, and in either case
against receipt
from the common
depositary of confirmation that such common
depositary is holding the Permanent
Global Note in safe
custody for the account of
Euroclear, Clearstream
and/or such other
applicable clearing
agency (as the case
may be);
or (ii) where the Temporary Global Note is not
being held by a common
depositary, as
otherwise
agreed in writing between the Company and the Agent.
(2)
The Agent shall only be required to perform its
obligations under Subclause 4(l) if it holds a master
Permanent Global Note duly executed by a person or
persons authorized to execute the same on behalf of
the Company, which may be used by the Agent for the
purpose of preparing Permanent Global Notes(s) in
accordance with Subclause 4(1)(a).
(3)
The Agent shall provide Euroclear, Clearstream or
such other applicable clearing agency with the
notifications, instructions or other information to
be given by the Agent to Euroclear, Clearstream or
such other applicable clearing agency.
(4)
Any of the duties and obligations of the Agent set
forth in this Clause 4 may, with the consent of the
Company, be delegated by the Agent with respect to a
particular Series of Notes to a third party, provided
such third party's performance is subject to the
overall supervision and control of the Agent.
5.
Issue of Definitive Notes
(1)
Upon notice from Euroclear, Clearstream or such
applicable clearing agency pursuant to the terms of a
Temporary Global Note or Permanent Global Note, as
the case may be, requiring the issue of one or more
Definitive Note(s), the Agent shall deliver the
relevant Definitive Note(s) in accordance with the
terms of the relevant Global Note. For this purpose,
the Agent is hereby authorized on behalf of the
Company:
(a)
to authenticate or arrange for authentication on its
behalf (if so instructed by the Company) of such
Definitive Note(s); and
(b)
to deliver
such Definitive Note(s) to or to the
order of Euroclear,Clearstream and/or such
other
applicable clearing
agency as is specified in the
related Final Terms either in exchange for such
Global Note or, in the case of a partial exchange,
on entering details of any partial exchange of the
Global Note in the relevant space in Schedule Two of
such Global Note;
provided that the Agent shall
only permit a partial
exchange of Notes
represented
by a Permanent Global Note for Definitive Notes if
the Notes which continue to be represented
by such Permanent Global Note are regarded as
fungible by Euroclear, Clearstream and/or such other
applicable clearing agency with the Definitive Notes
issued in partial exchange therefor.
The Agent shall notify the Company forthwith upon
receipt of a request for issue of Definitive Note(s)
in accordance with the provisions of a Global Note
(and the aggregate principal amount of such Temporary
Global Note or Permanent Global Note,as the case may
be, to be exchanged in connection therewith).
(2)
The Company undertakes to deliver to the Agent,
pursuant to a request for the issue of Definitive
Notes under the terms of the relevant Global Note,
sufficient numbers of executed Definitive Notes to
enable the Agent to comply with its
obligations under this Clause 5.
(3)
Any of the duties and obligations of the Agent set
forth in this Clause 5 may, with the consent of the
Company, be delegated by the Agent with respect to a
particular Series of Notes to a third party, provided
such third party's performance is subject to the
overall supervision and control of the Agent.
6.
Exchanges
Upon any exchange of all or a portion of an interest
in a Temporary Global Note for an interest in a
Permanent Global
Note or for Definitive Notes or upon
any exchange of all or a portion of an interest in a
Permanent Global Note for Definitive Notes, the
Global Note shall be endorsed to reflect the
reduction of its principal amount by the aggregate
principal amount so exchanged. Until exchanged in
full, the holder of an interest in any Global Note
shall in all respects be entitled to the same
benefits as the holder of Notes,Receipts and Coupons
authenticated and delivered hereunder, subject as
set out in
the Conditions. The Agent is hereby
authorized on behalf of the Company (a) to endorse or
to arrange for the endorsement of the relevant Global
Note to reflect the reduction in the principal amount
represented thereby by the amount so exchanged and,
if appropriate, to endorse the Permanent Global Note
to reflect any increase in the principal amount
represented thereby, and in either case, to sign in
the relevant space on the relevant Global Note
recording such exchange or increase; and (b) in the
case of a total exchange, to cancel or arrange for
the cancellation of the relevant Global Note. Any of
the duties and obligations of the Agent set forth in
this Clause 6
may,with the consent of the Company,
be delegated by the Agent with respect to a
particular Series of Notes to a third party,
provided such third party's performance is subject to
the overall supervision and control of the Agent.
7.
Terms of Issue
(1)
The Agent shall cause all Temporary Global Notes,
Permanent Global Notes and Definitive Notes delivered
to and held by it under this Agreement to be
maintained in safe custody and shall ensure that such
Notes are issued only in accordance with the
provisions of this Agreement and the relevant Global
Note and Conditions.
(2)
Subject to the procedures set out in the Procedures
Memorandum, for the purposes of Subclause (1) the
Agent is entitled to treat a telephone, telex or
facsimile communication from a person purporting to
be (and who the Agent, after making reasonable
investigation, believes in good faith to be) the
authorized representative of the Company named in the
list referred to in, or notified pursuant to,
Subclause 19(7) as sufficient instructions and
authority of the Company for the Agent to act in
accordance with Subclause 7(1).
(3)
In the event that a person who has signed on behalf
of the Company a
master Temporary
Global Note, a
master Permanent
Global Note or
Definitive Notes
not yet issued but held by the Agent in accordance
with Subclause 5(1) ceases to be authorized as
described in Subclause
19(7), the Agent shall
(unless the Company gives notice to the Agent that
Notes signed by that
person do not
constitute
valid and binding
obligations of the
Company or
otherwise until
replacements have been
provided
to the Agent) continue
to have authority to
issue
any such Notes, and
the Company
hereby warrants
to the Agent that such Notes shall, unless notified
as aforesaid, be valid
and binding
obligations of
the Company. Promptly upon such person ceasing to be
authorized, the
Company shall provide the Agent with
replacement master
Temporary Global Notes, master
Permanent Global Notes
and Definitive
Notes and
the Agent shall cancel
and destroy the master
Temporary Global
Notes, master
Permanent Global
Notes and Definitive Notes held by it which are
signed by such person
and shall provide to the
Company a confirmation of destruction in respect
thereof specifying the Notes so cancelled and
destroyed.
(4)
Unless otherwise agreed in writing between the
Company and the Agent, each Note credited to the
Agent's distribution account with Euroclear,
Clearstream or such other applicable clearing agency
following the delivery of a Temporary Global Note or
Permanent Global Note to a common depositary pursuant
to Subclause 3(1)(c) or Subclause 4(l)(c),
respectively, shall be held to the order of the
Company. The Agent shall procure that the principal
amount of Notes which the relevant Purchaser has
agreed to purchase is:
(a)
debited from the Agent's distribution account; and
(b)
credited to the securities account of such Purchaser
with Euroclear, Clearstream or such other clearing
agency (as specified in the Letter from Lead
Manager/Dealer as provided for in Annex C to the
Procedures Memorandum set forth in Appendix D to this
Agreement), in each case only upon receipt by the
Agent on behalf of the Company of the purchase price
due from the relevant Purchaser in respect of such
Notes.
(5)
Unless otherwise
agreed in writing between the
Company and the Agent, if on the relevant Issue Date
a Purchaser does not
pay the full purchase
price
due from it in respect of any Note (the "Defaulted
Note") and,
as a result,
the Defaulted
Note
remains in the Agent's
distribution account
with
Euroclear, Clearstream or other applicable clearing
agency after such Issue Date, the Agent will continue
to hold the Defaulted Note to the order of the
Company. The Agent
shall notify the Company
forthwith of the
failure of the
Purchaser to pay
the full purchase
price due from it in respect
of any Defaulted Note and, subsequently, shall
notify the Company forthwith upon receipt from the
Purchaser of the full purchase price in respect of
such Defaulted Note.
(6)
Unless otherwise agreed in writing between the
Company and the Agent, if the Agent pays an amount
(the "Advance") to the
Company on the basis that a
payment(the "Payment")
will be received
from a
Purchaser and if the
Payment is not received by the
Agent on the date the Agent pays the Company, the
Agent shall notify the Company by telex or facsimile
that the Payment has not been received and the
Company shall repay to
the Agent the Advance and
shall pay interest on
the Advance (or the
unreimbursed portion
thereof) from (and including)
the date such Advance is made to (but excluding)
the earlier of repayment of the Advance and receipt
by the Agent of the
Payment (at a rate
quoted at
that time by the Agent as its cost of funding the
Advance).
(7)
In the event of an issue of Notes, the Agent will
promptly, and in any event prior to the Issue Date in
respect of such issue, send the Final Terms to the
Company, relevant Stock Exchange and the relevant
Dealers.
8.
Payments
(1)
The Agent shall advise
the Company,
no later than
ten Business
Days (as defined
below) immediately
preceding the date on which any payment is to be made
to the Agent pursuant to this Subclause 8(1), of the
payment amount, value
date and payment instructions
and the Company shall on each date on which any
payment in respect of any Notes becomes due,
transfer to an account
specified by the Agent not
later than the Payment
Time such amount in the
relevant currency as
shall be sufficient
for the
purposes of such payment in funds settled through
such payment
system as the Agent
and the Company
may agree. As used in
this Subclause 8(1),
the
term "Payment
Time" means 2:00 p.m. local time
in the principal
financial center of
the country of
the currency in which the payment falls is to be made
(which in the case of payment of euro is London).
(2)
The Agent shall advise the Company, no later
than ten Business
Days immediately
preceding the
date on which any
payment is to be made to the Agent
pursuant to
Subclause 8(l), of the payment
amount, value date and
payment instructions and the
Company shall ensure that, no later than the third
Business Day
immediately preceding
the date on
which any payment is
to be made to the Agent
pursuant to Subclause
8(1), the Agent shall
receive
a confirmation from
the Company
that payment
will be made. For the
purposes of this Clause 8,
"Business Day" means (unless otherwise stated in
the applicable Final Terms) a day which is:
(a)
a day (other than a Saturday or a Sunday) on which
commercial banks and foreign exchange markets settle
payments and are open for general business (including
dealings in foreign exchange and foreign currency
deposits) in London;
(b)
either (i) in relation to a payment to be made in a
Specified Currency other than euro, a day on which
commercial banks and foreign exchange markets settle
payments and are open for general business (including
dealings in foreign exchange and foreign currency
deposits) in the principal financial center of the
country of the relevant Specified Currency (if other
than London), or (ii) in relation to a payment to be
made in euro, a day on which the TARGET system is
open; and
(c)
a day (other than a Saturday or Sunday) on which
banks are open for business in the relevant place of
business of the Agent.
Unless otherwise provided in the applicable Final
Terms, the principal financial center of any country
for any Series of Notes for the purposes of this
Subclause 8(2) shall be as provided in the ISDA
Definitions on the Issue Date of such Series of Notes
(except in the case of New Zealand and Australia,
where the principal financial center will be as
specified in the applicable Final Terms).
(3)
Subject to the Agent being satisfied in its sole
discretion that
payment will be duly made as
provided in
Subclause 8(1), the Agent or the
relevant Paying Agent
shall pay or cause to
be
paid all amounts
due in respect of the
Notes on
behalf of the Company in the manner provided in the
Conditions. If any
payment provided for
in
Subclause 8(1) is made late but otherwise in
accordance with the
provisions of this
Agreement,
the Agent and each Paying Agent shall nevertheless
make payments
in respect of the Notes as
aforesaid following
receipt by it of such payment.
(4)
If for any reason the Agent considers in its sole
discretion that the amounts to be received by the
Agent pursuant to Subclause 8(1) will be, or the
amounts actually received by it pursuant thereto are,
insufficient to satisfy all claims in respect of all
payments then falling due in respect of the Notes,
the Agent shall then forthwith notify the Company of
such insufficiency and, until such time as the Agent
has received the full amount of all such payments,
neither the Agent nor any Paying Agent shall be
obliged to pay any such claims.
(5)
Without prejudice to Subclauses 8(3) and 8(4), if the
Agent pays any amounts to the holders of Notes,
Receipts or Coupons or
to any Paying Agent at
a
time when it has not
received payment in
full in
respect of the
relevant Notes in
accordance with
Subclause 8(1) (the
excess of the
amounts so paid
over the amounts so received being the "Shortfall"),
the Company shall, in
addition to paying amounts due
under Subclause 8(1), pay to the Agent on demand
interest (at a rate which represents the Agent's
actual overnight
cost of funding the Shortfall)
on the Shortfall (or
the unreimbursed
portion
thereof) until the
receipt in full by the
Agent of
the Shortfall.
The Agent shall notify the
Company by
tested telex or facsimile as soon as
practicable, it being understood that the Company
shall have the right to make such payment
subsequently with good
value as of such Business
Day.
(6)
The Agent shall on demand promptly reimburse each
Paying Agent for payments in respect of Notes
properly made by such Paying Agent in accordance with
this Agreement and the Conditions unless the Agent
has notified the Paying Agent, prior to the opening
of business in the location of the office of the
Paying Agent through which payment in respect of the
Notes can be made on the due date of a payment in
respect of the Notes, that the Agent does not expect
to receive sufficient funds to make payment of all
amounts falling due in respect of such Notes.
9.
Determinations and Notifications in Respect of Notes
(1)
The Agent shall make all such determinations and
calculations
(howsoever described) as it is required
to do under the
Conditions, all
subject to and in
accordance with the Conditions provided that certain
calculations with respect to any Series of Notes
may be made by an
agent (the
"Calculation
Agent")
appointed by the Company and acceptable to the
Agent. The Agent may
decline to act in the capacity
described above in relation to a particular Series of
Notes if (i) the Agent does not have the capacity to
determine the rate of interest or redemption amount
or any other calculation to be made in relation to
such Series of Notes and (ii) such decision to
decline is notified
to the Issuer by the
Agent as
soon as reasonably
practicable after receipt by the
Agent of the terms of such Series of Notes and, in
any event, prior to
the issue of such Series of
Notes.
(2)
The Agent shall not be responsible to the Company or
to any third party (except in the event of
negligence, willful default or bad faith) as a result
of the Agent having acted on any quotation given by
any Reference Bank which subsequently may be found to
be incorrect.
(3)
The Agent shall promptly notify the Company, the
other Paying Agents and (in respect of a Series of
Notes listed on a
Stock Exchange)
the relevant
Stock Exchange of, inter alia, each Rate of
Interest, Interest
Amount and Interest
Payment
Date and all other
amounts, rates and
dates which
it is obliged
to determine or
calculate under
the
Conditions as soon as
practicable after
the
determination thereof (and in any event no later than
the tenth Business Day (as defined in Clause 8)
immediately preceding
the date on which any payment
is to be made to the Agent pursuant to Subclause
8(1)) and of any subsequent amendment thereto
pursuant to the Conditions.
(4)
The Agent shall use its best efforts to cause each
Rate of Interest, Interest Amount and Interest
Payment Date and all other amounts, rates and dates
which it is obliged to determine or calculate under
the Conditions (or which is provided to the Agent by
any other Calculation Agent appointed by the Company
as provided in Subclause 9(1)) to be published as
required in accordance with the Conditions as soon as
possible after their determination or calculation.
(5)
If the Agent does not at any material time for any
reason determine and/or calculate and/or publish the
Rate of Interest, Interest Amount and/or Interest
Payment Date in respect of any Interest Period or any
other amount, rate or date as provided in this Clause
9, it shall forthwith notify the Company and the
other Paying Agents of such fact.
(6)
The Agent shall provide to the Dealer or Dealers with
respect to any Series of Notes certification as to
the completion of distribution of such Series of
Notes.
(7)
For purposes of monitoring the aggregate principal
amount of Notes issued under the Program, the Agent
shall determine the U.S. dollar equivalent of the
principal amount of each issue of Notes denominated
in another currency, each issue of Dual Currency
Notes and each issue of Index Linked Notes as
follows:
(a)
the U.S. dollar equivalent of Notes denominated in a
currency other than U.S. dollars shall be determined
by the Agent as of 2:30 p.m. London time on the Issue
Date for such Notes by reference to the spot rate
displayed on a page on the Reuters Monitor Money
Rates Service or the Dow Jones Markets Limited or
such other service as is agreed between the Agent and
the Company from time to time;
(b)
the U.S. dollar equivalent of Dual Currency Notes and
Index Linked Notes shall be determined in the manner
specified above by reference to the original
principal amount of such Notes;
(c)
the U.S. dollar equivalent of Zero Coupon Notes and
other Notes issued at a discount shall be calculated
in the manner specified above by reference to the net
proceeds received by the Company for the relevant
issue; and
(d)
the U.S. dollar equivalent of Partly Paid Notes shall
be the principal amount regardless of the amount paid
up on such Notes.
The Agent shall promptly notify the Company of each
determination made as aforesaid.
10. Notice of
Any Withholding or Deduction
If the Company is, in respect of any payments, compelled to
withhold or deduct any amount for or on account of taxes,
duties, assessments or governmental charges as specifically
contemplated under the Conditions, the Company shall give
notice thereof to the Agent as soon as it becomes aware of the
requirement to make such withholding or deduction and shall
give to the Agent such information as it shall require to
enable it to comply with such requirement.
11.
Duties of the Agent in Connection with Early Redemption
(1)
If the Company decides to redeem any Notes for the time being
outstanding prior to their Maturity Date in accordance with
the Conditions, the Company shall give notice of such decision
to the Agent not less than 5 days before the relevant
redemption date or such shorter period that is acceptable to
the Agent and is set forth in the applicable Final Terms.
(2)
If only some of the Notes of like tenor and of the same Series
are to be redeemed on such date the Agent shall make the
required drawing in accordance with the Conditions.
(3)
The Agent shall publish the notice required in connection with
any
such redemption and shall at the same time also publish a
separate list of serial numbers of any Notes previously drawn
and not presented for redemption. Such notice shall specify
the date fixed for redemption, the redemption amount, the
manner in which redemption will be effected and, in the case
of a partial redemption, the serial numbers of the Notes to be
redeemed. Such notice will be published in accordance with the
Conditions.
12.
Publication of Notices
On behalf of and at the request and expense of the Company, the
Agen shall cause to be published all notices required to be
given by the Company in accordance with the Conditions.
Forthwith upon the receipt by the Agent of a demand or notice
from any Noteholder in accordance with the Conditions, the
Agent shall forward a copy thereof to the Company.
13.
Cancellation, Resale and Reissuance of Notes,
Receipts, Coupons and Talons
(1)
All Notes which are purchased or otherwise acquired
pursuant to the
Conditions by the Company, together (in the
case of Definitive
Notes) with all unmatured Receipts,
Coupons or Talons (if any) attached thereto or purchased
therewith, may, at the
option of the Company, either be (i)
resold or reissued, or held by the Company for subsequent
resale or reissuance, or (ii) cancelled in which event such
Notes, Receipts
and Coupons may not be resold or
reissued.
Where any Notes, Receipts, Coupons or Talons are purchased and
cancelled, resold or reissued, or held by the Company for
subsequent resale or
reissuance,
as aforesaid,
the Company
shall procure that all
relevant details are promptly given
to the Agent and that all Notes, Receipts, Coupons or Talons
so cancelled are delivered to the Agent.
(2)
A certificate stating:
(a)
the aggregate principal amount of Notes which have
been redeemed and the aggregate amount paid in
respect thereof;
(b)
the number of Notes cancelled together (in the case
of Definitive Notes) with details of all unmatured
Receipts, Coupons or Talons (if any) attached thereto
or delivered therewith;
(c)
the aggregate amount paid in respect of interest on
the Notes;
(d)
the total number by maturity date of Receipts,
Coupons and Talons so cancelled; and
(e)
(in the case of Definitive Notes) the serial numbers
of such Notes,
shall be given to the Company by the Agent as soon as
reasonably practicable and in any event within 30 days after
the date of such repayment or, as the case may be, payment or
exchange.
(3)
Subject to being duly notified in due time, the Agent shall
give a certificate to the Company, within three months of the
date of
purchase and cancellation or purchase and subsequent
resale or reissuance of Notes as aforesaid, stating:
(a)
the principal amount of Notes so purchased and cancelled,
resold or reissued;
(b)
the serial numbers of such Notes; and
(c)
the total number by maturity date of the Receipts, Coupons and
Talons (if any) appertaining thereto and surrendered therewith
or attached thereto.
(4)
The Agent shall destroy all cancelled Notes, Receipts, Coupons
and Talons (unless otherwise instructed by the Company) and,
forthwith upon destruction, furnish the Company with a
certificate of the serial numbers of the Notes and the number
by maturity date of Receipts, Coupons and Talons so destroyed.
(5)
Without prejudice
to the obligations of the Agent
pursuant to Subclause 13(2), the Agent shall keep a full
and
complete record of all Notes, Receipts, Coupons and Talons
(other than serial
numbers of Coupons,
except those which
have been replaced
pursuant to
Condition 14) and of all
replacement
Notes,Receipts,
Coupons or Talons
issued in
substitution for
mutilated,
defaced, destroyed,
lost or
stolen Notes, Receipts, Coupons or Talons and of all
Notes,
Receipts, Coupons or
Talons which have been resold or
reissued. The Agent shall at all reasonable times make such
record available to the Company and any person authorized by
the Company for inspection and for the taking of copies
thereof or extracts therefrom.
(6)
All records and certificates made or given pursuant to this
Clause 13 and Clause 14 shall make a distinction between
Notes,
Receipts, Coupons and Talons of each Series.
14.
Issue of Replacement Notes, Receipts, Coupons and Talons
(1)
The Company will cause a sufficient quantity of additional
forms of Notes, Receipts, Coupons and Talons to be available,
upon request, to the Agent at its specified office for the
purpose of issuing replacement Notes, Receipts, Coupons and
Talons as provided below.
(2)
The Agent will, subject to and in accordance with the
Conditions and the following provisions of this Clause 14,
cause to be delivered any replacement Notes, Receipts, Coupons
and Talons which the Company may determine to issue in place
of Notes, Receipts, Coupons and Talons which have been lost,
stolen, mutilated, defaced or destroyed.
(3)
In the case of a mutilated or defaced Note, the Agent shall
ensure that (unless otherwise covered by such indemnity as the
Company may require) any replacement Note will only have
attached to it Receipts, Coupons and Talons corresponding to
those (if any) attached to the mutilated or defaced Note which
is presented for replacement.
(4)
The Agent shall not issue any replacement Note, Receipt,
Coupon or Talon unless and until the applicant therefor shall
have:
(a)
paid such costs as may be incurred in connection therewith;
(b)
furnished it with such evidence (including evidence as to the
serial number of such Note, Receipt, Coupon or Talon) and
indemnity or other security (which may include a bank
guarantee and/or security) or otherwise as the Company and the
Agent may reasonably require; and
(c)
in the case of any mutilated or defaced Note, Receipt, Coupon
or Talon, surrendered the same to the Agent.
(5)
The Agent shall cancel any mutilated or defaced Notes,
Receipts, Coupons and Talons in respect of which replacement
Notes, Receipts, Coupons and Talons have been issued pursuant
to this Clause 14 and shall furnish the Company with a
certificate stating the serial numbers of the Notes, Receipts,
Coupons and Talons so cancelled and, unless otherwise
instructed by the Company in writing, shall destroy such
cancelled Notes, Receipts, Coupons and Talons and furnish the
Company with a destruction certificate containing the
information specified in Subclause 13(3).
(6)
The Agent shall, on issuing any replacement Note, Receipt,
Coupon or Talon, forthwith inform the Company and the
Paying
Agents of the serial number of such replacement Note,
Receipt, Coupon or
Talon issued and (if known) of the serial
number of the Note, Receipt, Coupon or Talon in place of
which such replacement Note, Receipt, Coupon or Talon has
been issued. Whenever
replacement Receipts, Coupons or Talons
are issued pursuant to
the provisions of this
Clause 14, the
Agent shall also
notify the Paying
Agents of the
maturity
dates of the lost, stolen, mutilated, defaced or destroyed
Receipts, Coupons or
Talons and of the replacement Receipts,
Coupons or Talons issued.
(7)
The Agent shall keep a full and complete record of all
replacement Notes, Receipts, Coupons and Talons issued and
shall make such record available all at reasonable times to
the Company and any persons authorized by the Company for
inspection and for the taking of copies thereof or extracts
therefrom.
(8)
Whenever any Note, Receipt, Coupon or Talon for which a
replacement Note, Receipt, Coupon or Talon has been issued and
in respect of which the serial number is known is presented to
the Agent or any of the Paying Agents for payment, the Agent
or, as the case may be, the relevant Paying Agent shall
immediately send notice thereof to the Company and the Agent.
(9)
Notwithstanding any of the foregoing in this Clause 14, no
issue of replacement Notes, Receipts, Coupons and Talons shall
be made or delivered in the United States.
15. Copies of
this Agreement and Each Final Terms Available for
Inspection
The Agent and the Paying Agents shall, for as long as any Note
remains outstanding, hold copies of this Agreement, each Final
Terms, the Company's Articles of Incorporation as amended and
restated from time to time and the latest annual and any
interim reports of the Company available for inspection;
provided, however, that if a Paying Agent acts as a Paying
Agent for only some of the Series of Notes issued under the
Program, such Paying Agent need only hold the Final Terms for
the Series of
Notes for which it acts as Paying Agent (and any
documents specified in the applicable Final Terms) and the
other documents referenced in this Clause 15 shall be obtained
by Noteholders from the Agent or from Paying Agents that act
as Paying Agents for all Series of Notes issued under the
Program. For this purpose, the Company shall furnish the Agent
and the Paying Agents with sufficient copies of the documents
they are required to hold.
16.
Commissions and Expenses
(1)
The Company shall pay to the Agent such fees and commissions
as the Company and the Agent may separately agree in respect
of the services of the Agent and the Paying Agents hereunder
together with any reasonable out-of-pocket expenses (including
legal, printing, postage, tax, cable and advertising expenses
required in connection with the Notes issued hereunder)
incurred by the Agent and the Paying Agents in connection with
their said services.
(2)
The Agent shall make payment of the fees and commissions due
hereunder to the Paying Agents and shall reimburse their
expenses promptly after the receipt of the relevant moneys
from the Company. The Company shall not be responsible for any
such payment or reimbursement by the Agent to the Paying
Agents.
17. Indemnity
(1)
The Company shall
indemnify the Agent and each of the Paying
Agents against any direct losses, liabilities, costs,
claims, actions,
demands or expenses
(including, but
not
limited to, all reasonable costs, charges and expenses paid
or incurred in disputing or defending any of the foregoing but
excluding loss of profits) which it may incur or which may be
made against the Agent or any Paying Agent as a result of or
in connection with its appointment by the Company or the
exercise of its powers and duties hereunder except such as
may result from its own willful default, negligence or bad
faith or that of its officers, directors or employers or the
breach by it of the terms of this Agreement.
(2)
The Agent and the Paying Agents shall not be liable for any
action taken or omitted hereunder except for their own willful
default, negligence or bad faith or that of their respective
officers, directors or employees or the breach by any of them
of the terms of this Agreement.
(3)
Neither the Agent nor any of the Paying Agents shall be
responsible for the
acts or failure to act of any other of
them and each of the Agent and the Paying Agents shall
indemnify the Company
against any loss,
liability, cost,
claim, action, demand or expense (including, but not limited
to, all reasonable costs, legal fees, charges and expenses
paid or incurred in disputing or defending any of the
foregoing) which the Company may incur or which may be made
against it as a result of the breach by the Agent or such
Paying Agents of the
terms of this Agreement or its
willful default,
negligence
or bad faith or that of its
officers, directors or employees.
18. Repayment by the Agent
The Agent shall, forthwith on demand, upon the Company being
discharged from its obligation to make payments in respect
of any Notes under the Conditions, provided that there is no
outstanding, bona fide and proper claim in respect of any
such payments, pay to the Company sums equivalent to any
amounts paid to it by the Company in respect of such Notes.
19.
Conditions of
Appointment
(1)
The Agent shall be entitled to deal with money paid to it by
the Company for the purpose of this Agreement in the same
manner as other money paid to a banker by its customers
except:
(a)
that it shall not exercise any right of set-off, lien or
similar claim in respect thereof;
(b)
as provided in Subclause 19(2) below; and
(c)
that it shall not be liable to account to the Company for any
interest thereon except as otherwise agreed between the
Company and the Agent.
(2)
In acting hereunder
and in connection with the Notes,
the Agent and the Paying Agents shall act solely as agents
of the Company
and will not thereby
assume any
obligations
towards or
relationship of agency or trust for or with any of
the owners or holders of the Notes, Receipts, Coupons or
Talons, except that all funds held by the Agent or the
Paying Agents
for payment to the Noteholders shall be
held in trust, to be applied as set forth herein, but need
not be segregated from other funds except as required by law;
provided, however,that monies paid by the Company to the
Agent for the payment
of principal
or interest
on Notes
remaining unclaimed
at the end of five
years after such
principal or
interest shall become due and payable
shall be repaid to the Company as provided and in the
manner set forth in
the Notes whereupon
all
liability of the Agent with respect thereto shall cease.
(3)
The Agent and the Paying Agents hereby undertake to the
Company to perform such obligations and duties, and shall be
obliged to perform such duties and only such duties, as are
herein, in the Conditions and in the Procedures Memorandum
specifically set forth, or are otherwise agreed to in writing
by the Company, the Agent and the Paying Agents as applicable,
and no implied duties or obligations shall be read into this
Agreement or the Notes against the Agent and the Paying
Agents.
(4)
The
Agent may consult with legal and other professional
advisers and the opinion of such advisers shall be full and
complete protection in respect of any action taken, omitted or
suffered hereunder in good faith and in accordance with the
opinion of such advisers.
(5)
Each of the Agent and the Paying Agents shall be protected and
shall incur no liability for or in respect of any action
taken, omitted or suffered in reliance upon any instruction,
request or order from the Company or any notice, resolution,
direction, consent, certificate, affidavit, statement, cable,
telex or other paper or document which it reasonably believes
to be genuine and to have been delivered, signed or sent by
the proper party or parties or upon written instructions from
the Company.
(6)
Any of the Agent and the Paying Agents and their officers,
directors and
employees may
become the owner of, or
acquire any
interest in, any Notes, Receipts,
Coupons or
Talons with the same
rights that it, he or she would have if
the Agent or the relevant Paying Agent, as the case may be,
concerned were not
appointed hereunder,
and may engage or
be interested in any
financial or other transaction with the
Company and may act on, or as depositary, trustee or agent
for, any committee or body of holders of Notes or Coupons or
in connection with any
other obligations
of the Company
as freely as if the
Agent or the relevant Paying Agent, as
the case may be, were not appointed hereunder.
(7)
The Company shall provide the Agent with a certified copy of
the list of persons authorized to execute documents and take
action on behalf of the Company in connection with this
Agreement and shall notify the Agent promptly in writing if
any of such persons ceases to be so authorized or if any
additional person becomes so authorized together, in the case
of an additional authorized person, with evidence satisfactory
to the Agent that such person has been so authorized.
20. Communication Between the
Parties
A copy of all communications relating to the subject matter of
this Agreement between the Company and any holders of Notes,
Receipts or Coupons and any of the Paying Agents shall be
sent to the Agent by the relevant Paying Agent and the Agent
shall forthwith promptly deliver a copy of any such
communication to the Company.
21. Changes in Agent and Paying
Agents
(1)
The Company agrees that, until no Note is outstanding
or until moneys for the payment of all amounts in
respect of all outstanding Notes have been made
available to the Agent (whichever is the later):
(a)
so long as any Notes (i) are listed on the London
Stock Exchange, there will at all times be a Paying
Agent (or the Agent) having a specified office in
London; and (ii) are listed on any other Stock
Exchange, there will at all times be a Paying Agent
in any such location as may be required by the rules
and regulations of the relevant Stock Exchange;
(b)
there will
at all times be a Paying Agent (or the
Agent) with a specified office in a city approved by
the Company and the Agent in continental Europe;
(c)
there will at all times be an Agent; and
(d)
if any tax, assessment
or other governmental charge required
to be withheld or deducted by any Paying Agent from any
payment of principal
or interest in respect
of any Note,
Receipt or Coupon,
where such withholding or deduction is
imposed on a payment to an individual and is required to be
made pursuant to the European Council Directive 2003/48/EC
on the taxation of savings income or any law implementing or
complying with or introduced to conform to, such Directive,
the Company will
ensure that it
maintains a Paying
Agent
in a Member State of the European Union that will not be
obliged to withhold or deduct tax pursuant to any such
Directive or law.
In addition, the Company shall appoint a Paying Agent having a
specified office in New York City in the circumstances
described in the final paragraph of Condition 6(b). Any
variation, termination, appointment or change shall only take
effect (other than in the case of insolvency, when it shall be
of immediate effect) after not less than 30 nor more than 45
days prior notice thereof shall have been given to the
Noteholders in accordance with Condition 16.
(2)
The Agent may (subject as provided in Subclause 21(4)) at any
time resign as Agent by giving written notice to the Company
of such intention on its part, specifying the date on which
its desired resignation shall become effective; provided that
such date shall never be less than three months after the
receipt of such notice by the Company unless the Company
agrees to accept less notice.
(3)
The Agent may (subject as provided in Subclause 21(4)) be
removed at any time by the filing with it of an instrument in
writing signed on behalf of the Company specifying such
removal and the date when it shall become effective.
(4)
Any resignation under Subclause 21(2) or removal under
Subclause 21(3) shall only take effect upon the appointment
by the Company of a successor Agent and (other than in cases
of insolvency of the
Agent) on the expiry of the notice to
be given under
Clause 23. If, by the
day falling 10
days
before the expiry of any notice under Subclause 21(2),
the Company has not
appointed a successor Agent, then the
Agent shall be entitled, on behalf of the Company, to appoint
as a successor Agent
in its place such
reputable
financial
institution of good
standing as it may
reasonably
determine
to be capable of performing the duties of the Agent hereunder.
(5)
In case at any time the Agent resigns, or is removed, or
becomes incapable of action or is adjudged bankrupt or
insolvent, or files a voluntary petition in bankruptcy or
makes an assignment
for the benefit of its
creditors or
consents to the appointment of an administrator, liquidator
or administrative or
other receiver of all or a substantial
part of its property,
or if an
administrator, liquidator or
administrative or
other receiver of it
or all or a
substantial part of its property is appointed, or it admits
in writing its inability to pay or meet its debts as they
become due,
or if an order of any
court is entered
approving any
petition filed by or against it under the
provisions of any
applicable bankruptcy
or insolvency
law or if any officer
takes charge or control of it or of
its property or
affairs for the purpose of rehabilitation,
administration or liquidation, a successor Agent may be
appointed by the Company by an instrument in writing filed
with the successor Agent. Upon the appointment as aforesaid
of a successor
Agent and acceptance by the latter of
such appointment and
(other than in the case of insolvency
of the Agent) upon expiry of the notice to be given under
Clause 23, the Agent so superseded shall cease to be the
Agent hereunder.
(6)
Subject to Subclause 21(1), the Company may, after prior
consultation with the Agent, terminate the appointment of any
of the Paying Agents at any time and/or appoint one or more
further Paying Agents located outside the United States
(either for all Notes issued under the Program or with respect
to a particular Series of Notes) by giving to the Agent, and
to the relevant Paying Agent, at least 45 days notice in
writing to that effect, or such lesser notice as is agreed to
by the Agent, the Company and the relevant Paying Agent.
(7)
Subject to Subclause 21(1), all or any of the Paying Agents
may resign their respective appointments hereunder at any time
by giving the Company and the Agent at least 45 days written
notice to that effect.
(8)
Upon its resignation or removal becoming effective, the Agent
or the relevant Paying Agent:
(a)
shall, in the case of the Agent, forthwith transfer all moneys
held by it hereunder and the records referred to in Subclauses
13(5) and 14(7) to the successor Agent hereunder; and
(b)
shall be entitled to the payment by the Company of its
commissions and fees for the services theretofore rendered
hereunder in accordance with the terms of Clause 16 and to the
reimbursement of all reasonable out-of-pocket expenses
(including legal fees and together with any applicable value
added tax or similar tax thereon) incurred in connection
therewith.
(9)
Upon its appointment becoming effective, a successor Agent and
any new Paying Agent shall, without further act, deed or
conveyance, become vested with all the authority, rights,
powers, trust, immunities, duties and obligations of such
predecessor with like effect as if originally named as Agent
or (as the case may be) a Paying Agent hereunder.
22. Merger and
Consolidation
Any corporation into which the Agent or any Paying Agent may be
merged,
or any corporation with which the Agent or any of the Paying Agents
may
be consolidated, or any corporation resulting from any merger
or
consolidation to which the Agent or any of the Paying Agents shall
be a
party, or any corporation to which the Agent or any of the
Paying
Agents shall sell or otherwise transfer all or substantially all
the
assets of the Agent or any Paying Agent shall, on the date when
such
merger, consolidation or transfer becomes effective and to the
extent
permitted by any applicable laws, become the successor Agent or, as
the
case may be,
Paying Agent under this Agreement without the execution or
filing of any paper or any further act on the part of the
parties
hereto, unless otherwise required by the Company, and after the
said
effective date all references in this Agreement to the Agent or, as
the
case may be, such Paying Agent shall be deemed to be references to
such
corporation. Notice of any such merger, consolidation or transfer
shall
forthwith be given to the Company by the relevant Agent or
Paying
Agent.
23.
Notifications
Following receipt of notice of resignation from the Agent or any
Paying
Agent and forthwith upon appointing a successor Agent or, as the
case
may be, further or other Paying Agents for any Series of Notes
outstanding prior to the date of such appointment or on giving
notice
to terminate the appointment of any Agent or, as the case may
be,
Paying Agent, the Company shall give or cause to be given not more
than
45 days nor less than 30 days notice thereof to any Noteholders
affected by such termination or appointment in accordance with
the
Conditions.
24. Change of
Specified Office
If the Agent or any Paying Agent determines to change its
specified
office, it shall give to the Company and (if applicable) the
Agent
written notice of such determination giving the address of the
new
specified office which shall be in the same city and stating the
date
on which such change is to take effect, which shall not be less
than 45
days thereafter. The Agent (on behalf of the Company) shall within
15
days of receipt of such notice (unless the appointment of the Agent
or
the relevant Paying Agent, as the case may be, is to terminate
pursuant
to Clause 21 on or prior to the date of such change) give or cause
to
be given not more than 45 days nor less than 30 days notice thereof
to
the Noteholders in accordance with the Conditions; provided,
however,
that if a Paying Agent acts as Paying Agent for only some of the
Series
of Notes under the Program, notice need be given only to
Noteholders
for whom the Paying Agent acts as Paying Agent.
25.
Notices
Any notice or communication given hereunder shall be sufficiently
given
or served:
(a)
if delivered in person to the relevant address
specified on the signature pages hereof (or to such
other address as is specified in writing and
delivered to all parties to this Agreement) and, if
so delivered, shall be deemed to have been delivered
at time of receipt; or
(b)
if sent by facsimile or telex to the relevant number
specified on the signature pages hereof (or to such
other
facsimile or telex numbers as are specified in
writing and delivered to all parties to this
Agreement) and, if so sent, shall be deemed to have
been delivered upon transmission provided such
transmission is confirmed by the answer back of the
recipient (in the case of telex) or when an
acknowledgment of receipt is received (in the case of
facsimile).
26. Taxes and
Stamp Duties
The Company agrees to pay any and all stamp and other documentary
taxes
or duties (other than any interest or penalties arising as a result
of
a failure by any other person to account promptly to the
relevant
authorities for any such duties or taxes after such person shall
have
received from the Company the full amount payable in respect
thereof)
which may be payable in connection with the execution,
delivery,
performance and enforcement of this Agreement.
27. Currency
Indemnity
If, under any applicable law and whether pursuant to a judgment
being
made or registered against the Company or for any other reason,
any
payment under or in connection with this Agreement is made or is to
be
satisfied in a currency (the "other currency") other than that in
which
the relevant payment is expressed to be due (the "required
currency")
under this Agreement, then, to the extent that the payment
(when
converted into the required currency at the rate of exchange on
the
date of payment or, if it is not practicable for the Agent or
the
relevant Paying Agent to purchase the required currency with the
other
currency on the date of payment, at the rate of exchange as
soon
thereafter as it is practicable for it to do so or, in the case of
a
liquidation, insolvency or analogous process at the rate of
exchange on
the latest date permitted by applicable law for the determination
of
liabilities in such liquidation, insolvency or analogous
process)
actually received by the Agent or the relevant Paying Agent falls
short
of the amount due under the terms of this Agreement, the Company
shall,
as a separate and independent obligation, indemnify and hold
harmless
the Agent against the amount of such shortfall.
For the purposes of this Clause 27, "rate of exchange" means the
rate
at which the Agent is able on the relevant date to purchase the
required currency with the other currency and shall take into
account
any premium and other costs of exchange.
28. Amendments:
Meetings of
Holders
For purposes of this Clause 28, the term "outstanding" excludes
those
Notes which have been purchased or otherwise acquired and are
being
held by the Company for subsequent resale or reissuance as provided
in
Condition 5 during the time so held.
(1) This
Agreement, the Notes and any Receipts and Coupons attached to
the
Notes may be amended by the Company and the Agent,
without consent
of the holder of any Note, Receipt or Coupons (a) for the purpose
of
curing any ambiguity,
or of curing,
correcting or supplementing any
defective provision contained herein or therein, or to evidence the
succession of another corporation to the Company as provided in
Condition 11, (b) to make any further modifications of the terms of
this Agreement
necessary or desirable to allow for the
issuance of any
additional Notes (which modifications shall not be
materially
adverse to holders of outstanding Notes), or (c) in any
manner which the Company (and, in the case of this Agreement, the
Agent) may deem
necessary or desirable and which shall not materially
adversely affect the
interests of the holders of the Notes,
Receipts and Coupons.
In addition, with the
consent of the holders
of not less than a majority in aggregate principal amount of the
Notes then outstanding
affected thereby,
or by a resolution
adopted by a
majority in aggregate principal amount of such
outstanding
Notes affected
thereby present or represented at a
meeting of such
holders at which a
quorum is present,
this
Agreement and the terms and conditions of the Notes, Receipts
and
Coupons may be modified or amended by the parties hereto, and
future compliance
and past defaults
waived, in each case as provided
in Conditions 12 and 13 and subject to the limitations therein
provided.
(2) A meeting
of holders of Notes may be called by the holders of
at least 10 per cent. in principal amount of the outstanding
Notes at any time and from time to time to make, give or take
any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement or
the Notes to be made, given or taken by holders of Notes.
(3) The Agent
may at any time call a meeting of holders of Notes for any
purpose specified in
Subclause 28(1) to be held at such time and
at
such place in The City of New York or in London, as the Agent and the
Company shall
determine. Notice of
every meeting
of holders
of
Notes, setting
forth the time and the
place of such meeting
and in
general terms the
action proposed to be
taken at such meeting,
shall be given by the Agent to the Company and to the holders
of
the Notes, in the same
manner as provided in Condition 16, not less
than 21 nor more than 180 days prior to the date fixed for the
meeting. In the case
at any time the Company or the holders of at
least 10 per cent. in principal amount of the outstanding Notes
shall have requested
the Agent to call a meeting of the holders to
take any action
authorized in Subclause 28(1), by written request
setting forth in
reasonable
detail the action proposed to be
taken at the meeting,
and the Agent shall not have given notice of
such meeting
within 21 days after
receipt of such request or shall
not thereafter proceed
to cause the meeting to be held as provided
herein, then the Company, or the holders of Notes in the amount
above-specified, as
the case may be, may
determine the time and
the place in The City of New York or London for such meeting and may
call such meeting by giving notice thereof as provided in this
Subclause 28(3).
(4) To be
entitled to vote at any meeting of holders of Notes, a
person shall be a holder of outstanding Notes at the time of
such meeting, or a person appointed by an instrument in
writing as proxy for such holder.
(5) The
persons entitled to vote a majority in principal amount of
the outstanding Notes shall constitute a quorum. In the absence of
a
quorum, within 30
minutes of the time
appointed for any such
meeting, the
meeting may be adjourned for a period of
not less than
10 days as determined by the chairman of the meeting prior to
the
adjournment of such meeting. In the absence of a quorum at any
such
adjourned meeting,
such adjourned meeting
may be further adjourned
for a period of not
less than 10 days as
determined
by the
chairman of the
meeting prior to the
adjournment
of such adjourned
meeting. Notice
of the reconvening
of any adjourned meeting shall
be given as provided in Subclause 28(3) except that such notice
need
be given not less than five days prior to the date on which the
meeting is
scheduled to be reconvened. Notice of the reconvening
of an adjourned
meeting shall state expressly the percentage of the
principal amount of the outstanding Notes which shall constitute
a
quorum.
Subject to
the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum, the persons entitled to vote
25 per cent. in principal amount of the outstanding Notes
shall constitute a quorum for the taking of any action set
forth in the notice of the original meeting. Any meeting of
holders of Notes at which a quorum is present may be adjourned
from time to time by vote of a majority in principal amount of
the outstanding Notes represented at the meeting, and the
meeting may be held as so adjourned without further notice. At
a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid, any resolution and all
matters shall be
effectively passed and decided if passed or
decided by the persons entitled to vote a majority in
principal amount of the outstanding Notes represented and
voting at such meeting, provided that such amount approving
such resolution shall be not less than 25 per cent. in
principal amount of the outstanding Notes.
(6) The Agent may
make such reasonable
regulations as it may deem advisable
for any meeting of
holders of Notes in regard to proof of the holding
of Notes and of the
appointment of proxies
and in regard to the
appointment and duties
of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right
to vote, and such
other matters
concerning
the conduct of the
meeting as it shall deem appropriate. The Agent shall, by an
instrument in writing,
appoint a temporary chairman of the meeting,
unless the meeting
shall have been called
by the Company or
holders
of Notes as provided above, in which case the Company or the
holders of
Notes calling the meeting, as the case may be, shall in like
manner
appoint a temporary chairman. A permanent chairman and a
permanent
secretary of the
meeting shall be
elected by vote of the persons
entitled to vote a majority in principal amount of the outstanding
Notes represented
at the meeting.
The chairman of the meeting
shall have no right to vote, except as a holder of Notes or
proxy.
A record, at least in triplicate,
of the proceedings of each
meeting of holders of Notes shall be prepared, and one such
copy shall
be delivered to the Company and another to the Agent to be
preserved by
the Agent.
29. Calculation Agency Agreement
A form of calculation agency agreement is set out in Appendix C to
this
Agreement. Where the Conditions require functions to be carried out
by
a Calculation Agent other than the Agent, the Company may execute
such
an agreement or an agreement in such other form as the Company and
the
Calculation Agent may agree.
30.
Redenomination and Exchange
(1)
Redenomination
Where redenomination ("Redenomination") is specified in the
applicable Final Terms as being applicable, and unless
otherwise specified in the applicable Final Terms, the Company
may, without the consent of any Noteholder, Receiptholder or
Couponholder, on giving prior notice to Euroclear, Clearstream
and the Agent and at least 30 days' prior notice to
Noteholders as provided in Condition 16, designate a
Redenomination Date. With effect from the Redenomination Date,
notwithstanding the other provisions of the Conditions:
(a) The Notes and
Receipts shall (unless already so provided by
mandatory provisions
of applicable
law) be deemed to be
redenominated in euro
in the denomination of
euro 0.01 with a
principal amount
for each Note and
Receipt equal to the
principal
amount of the Note or Receipt in the original Specified Currency,
converted into
euro at the
Established
Rate, and the Specified
Currency shall be deemed to be Euro; provided that, if the Company
determines, after
consultation with the
Agent, that the then market
practice in respect of the redenomination into euro of
internationally
offered securities is different from the provisions specified above
in this Subclause
30(1)(a) or in the applicable Final Terms, such
provisions shall be deemed to be amended so as to comply
with such
market practice
and the Company
shall promptly notify the
Noteholders, the stock
exchange (if any) on which the Notes may
be
listed and the Agent and Paying Agent(s) of such deemed
amendments.
(b) If definitive
Notes are required to be issued after
the Redenomination Date, they shall be issued at the
expense of the Company in the denominations of euro
1,000, euro 10,000 and euro 100,000 and (but only to
the extent of any remaining amounts less than euro
1,000 or such smaller denominations as the Agent may
approve) euro 0.01 and such other denominations as
the Company, after consultation with the Agent, shall
determine and notify to Noteholders.
(c) If definitive
Notes have been
issued, all
unmatured Coupons and
Receipts denominated in the original Specified Currency (whether or
not attached to the Notes) will become void and no payments will be
made in
respect of them with effect from the date on which the Company
gives notice (the
"Exchange Notice")
that Euro-denominated
Notes,
Receipts and Coupons are available for exchange (provided
that such
securities are so available). New certificates in respect of
Euro-denominated
Notes, Receipts
and Coupons
will be issued in
exchange for Notes,
Receipts and Coupons in the original Specified
Currency in such manner as the Company, after consultation with the
Agent, may
specify and shall be notified to
Noteholders in the
Exchange Notice. No
Exchange Notice may be given less than 15 days
prior to any date for payment of principal or interest on the
Notes.
(d) After the
Redenomination
Date, all payments in respect of the
Notes,
the Receipts and the Coupons (other than, unless the Redenomination
Date is on or after such date as the original Specified Currency
ceases
to be a subdivision of the Euro, payments of interest in respect of
periods commencing
before the
Redenomination Date)
will be made
solely in euro as though references in the Notes, the Receipts and
the
Coupons to the Specified Currency were to Euro. Such payments
will be
made in euro by credit or transfer to a euro account (or any other
account to which euro may be credited or transferred) specified by
the payee or by check;
provided, however,
that a check may not
be
delivered to an address in, and an amount may not be transferred to
an
account at a bank located in, the United States of America or its
possessions except as
provided in Condition 6(b).
(e) After the
Redenomination Date, "Business Day" in relation to any sum
payable in euro shall mean a day on which commercial banks and foreign
exchange markets settle payments and are open for general
business
(including dealings in foreign exchange and foreign currency
deposits) in London
and New York and a day on which the TARGET
system is open.
After the Redenomination Date, "Payment
Business Day" shall mean (A) a "Business Day" as defined herein
and
(B) a day on which
commercial banks are
open for general
business
(including dealings in
foreign exchange
and foreign currency
deposits) in the
relevant place of presentation.
(f) If definitive
Notes have been
issued, after the
Redenomination
Date,
the amount of interest
due in respect of Notes will be calculated by
reference to the
aggregate nominal
amount of Notes
presented (or,
as the case may be, in respect of which Receipts or Coupons are
presented) for payment by the relevant holder and the amount of
such
payment shall be
rounded down to the nearest euro 0.01. If the Notes
are in global form, after the Redenomination Date, the amount
of
interest due in
respect of Notes
represented
by the Global
Note
will be calculated by
reference to the aggregate nominal amount of
such Notes and the amount of such payment shall be rounded down to
the
nearest euro 0.01.
(g) The applicable
Final Terms will specify any relevant
changes to the provisions relating to interest,
including without limitation, any change to the
applicable Day Count Fraction and Business Day
Convention.
(2) Exchange
Where exchange ("Exchange") is specified in the applicable
Final Terms as being applicable, and unless otherwise
specified in the applicable Final Terms, the Company may,
without the consent of any Noteholder, Receiptholder or
Couponholder, on giving prior notice to Euroclear, Clearstream
and the Agent and at least 30 days' prior notice to the
Noteholders as provided in Condition 16, elect that, with
effect from the Redenomination Date specified in the notice,
the Notes shall be exchangeable for Notes expressed to be
denominated in euro in accordance with such arrangements as
the Company may decide, after consultation with the Agent, and
as may be specified in the notice, including arrangements
under which Receipts and Coupons (which expression shall for
this purpose include Coupons to be issued on an exchange of
matured Talons) unmatured at the date so specified become
void.
(3) Amendments
and Modifications
The applicable Final Terms in relation to any Notes may
specify other Terms and Conditions which shall, to the extent
so specified or to the extent inconsistent with the provisions
herein, replace or modify the provisions for the purpose of
such Notes. In addition, the Company and the Agent may make
any changes, without the consent of, but with notification to
(in accordance with Condition 16 and this Clause 30), any
Noteholder, Receiptholder or Couponholder, to this Agreement
necessary to implement the provisions of Condition 17 and this
Clause 30.
Notwithstanding anything to the contrary contained in this
Clause 30, if the Company determines, after consultation with
the Agent, that the then market practice in respect of the
redenomination into euro of internationally offered securities
or Euro-denominated internationally offered securities is
different from that specified in this Clause 30, the Company
may (but shall not be required to) amend the provisions of
this Clause 30 and any provision of the Conditions, as
applicable, so as to comply with such market practice, and the
Company shall promptly notify Noteholders, the stock exchange
(if any) on which the Notes may be listed, the Paying Agents
and the Agent of such deemed amendments. Such changes will not
take effect until after they have been notified to Noteholders
in accordance with Condition 16 and this Clause 30.
31.
Descriptive Headings
The descriptive headings in this Agreement are for convenience
of
reference only and shall not define or limit the provisions
hereof.
32. Governing
Law
This Agreement is governed by, and shall be construed in
accordance
with, the laws of the State of New York, United States of
America,
applicable to agreements made and to be performed wholly within
such
jurisdiction.
33.
Counterparts
This Agreement may be executed in one or more counterparts all of
which
shall constitute one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as
of the date first above written.
The Company
TOYOTA MOTOR CREDIT CORPORATION
19001 South Western Avenue
Torrance, California 90501
Telephone:
(310) 468-4001
Telefax:
(310) 468-6194
Attention: Vice
President, Treasury
By:
/s/ George E. Borst
----------------------------------------------------------------------
George E. Borst
President and Chief Executive Officer
<PAGE>
The Agent
JPMorgan Chase Bank, N.A.
Trinity Tower
9 Thomas More Street
London E1W 1YT
Telephone:
01202 347430
Fax:
01202 347601
Telex: 8954681 CMB G
Attention:
Manager, Institutional Trust Services
By:
/s/ Jeffrey Griffey
The Other Paying Agent
J.P. Morgan Bank Luxembourg S.A. 6 route de
Treves L-2633 Senningerberg
(Municipality of Niederanven)
Luxembourg
Telephone:
00 352 4626 85236
Fax:
00 352 4626 85380
Telex: 1233 CHASE LU
Attention:
Manager, Institutional Trust Services
By:
/s/ Jeffrey Griffey
<PAGE>
Appendix A -35
Appendix A--1
LA1:1087269.6
APPENDIX A
TERMS AND CONDITIONS OF THE NOTES
The following are the Terms and Conditions (the "Terms and
Conditions"
or the "Conditions") of the Notes issued on
or after the date of this Offering
Circular which (subject to completion and
amendment and to the extent
applicable) will be attached to or
incorporated by reference into each global
Note and will be incorporated by reference
or endorsed upon each definitive
Note. The applicable Final Terms in
relation to any Notes may specify other
terms and conditions which shall, to the
extent so specified or to the extent
inconsistent with the following Terms and
Conditions, replace or modify the
following Terms and Conditions for the
purpose of such Notes. The applicable
Final Terms will be endorsed upon, or
attached to, each temporary global Note,
permanent global Note and definitive Note.
Reference should be made to "Form of
the Notes" in the Offering Circular dated
September 30, 2005 (the "Offering
Circular"), for the form of Final Terms
which will include the definitions of
certain terms used in the following Terms
and Conditions
This Note is one of a Series (as defined below) of Notes (the
"Notes,"
which expression shall mean (i) in relation
to any Notes represented by a global
Note, units of the lowest Specified
Denomination in the Specified Currency of
the relevant Notes, (ii) definitive Notes
issued in exchange (or partial
exchange) for a temporary or permanent
global Note, and (iii) any global Note)
issued subject to, and with the benefit of,
a Fifth Amended and Restated Agency
Agreement dated as of September 30, 2005
(the "Agency Agreement"), and made
between Toyota Motor Credit Corporation
("TMCC", which reference does not
include the subsidiaries of TMCC) and
JPMorgan Chase Bank, N.A., as issuing
agent and (unless specified otherwise in
the applicable Final Terms) principal
paying agent and (unless specified
otherwise in the applicable Final Terms) as
calculation agent (the "Agent", which
expression shall include any successor
agent or any other Calculation Agent
specified in the applicable Final Terms)
and the other paying agents named therein
(together with the Agent, the "Paying
Agents", which expression shall include any
additional or successor paying
agents).
Interest-bearing definitive Notes will (unless otherwise indicated
in
the applicable Final Terms) have interest
coupons ("Coupons") and, if indicated
in the applicable Final Terms, talons for
further Coupons ("Talons") attached on
issue. Any reference herein to Coupons or
coupons shall, unless the context
otherwise requires, be deemed to include a
reference to Talons or talons.
Definitive Notes repayable in installments
will have receipts ("Receipts") for
the payment of the installments of
principal (other than the final installment)
attached on issue. The Notes, Receipts and
Coupons have the benefits of certain
credit support agreements governed by
Japanese law, one between Toyota Motor
Corporation ("TMC") and Toyota Financial
Services Corporation ("TFS") dated July
14, 2000, and the other between TFS and
TMCC, dated October 1, 2000. However,
the credit support agreements do not
constitute a direct or indirect guarantee
by TMC or TFS thereof.
As used herein, "Series" means all Notes which are denominated in
the
same currency and which have the same
Maturity Date, Interest Basis,
Redemption/Payment Basis and Interest
Payment Dates (if any) (all as indicated
in the applicable Final Terms) and the
terms of which (except for the Issue Date
or the Interest Commencement Date (as the
case may be) and /or the Issue Price
(as indicated as aforesaid)) are otherwise
identical (including whether or not
the Notes are listed) and the expressions
"Notes of the relevant Series" and
"holders of Notes of the relevant Series"
and related expressions shall be
construed accordingly. As used herein,
"Tranche" means all Notes of the same
Series with the same Issue Date and
Interest Commencement Date (if applicable).
The Final Terms applicable to any particular Note or Notes is
attached
hereto or endorsed hereon and supplements
these Terms and Conditions and may
specify other terms and conditions which
shall, to the extent so specified or to
the extent inconsistent with these Terms
and Conditions, replace or modify these
Terms and Conditions for the purposes of
such Note or Notes. References herein
to the "applicable Final Terms" shall mean
the Final Terms attached hereto or
endorsed hereon.
Copies of the Agency Agreement (which contains the form of
Final
Terms), the Offering Circular and the Final
Terms applicable to any particular
Note or Notes (if listed) are available for
inspection at the specified offices
of the Agent and each of the other Paying
Agents. The holders of the Notes (the
"Noteholders"), which expression shall, in
relation to any Notes represented by
a global Note, be construed as provided in
Condition 1, the holders of the
Coupons (the "Couponholders") and the
holders of Receipts (the "Receiptholders")
are deemed to have notice of the Agency
Agreement, the applicable Final Terms
and the Offering Circular, and are entitled
to the benefit of all the provisions
of the Agency Agreement and the applicable
Final Terms, which are binding on
them.
A temporary or permanent global Note will be exchangeable in whole,
but
not in part, for security printed
definitive Notes with, where applicable,
Receipts, Coupons and Talons attached not
earlier than the date (the "Exchange
Date") which is 40 days after completion of
the distribution of the relevant
Tranche, provided that certification of
non-U.S. beneficial ownership has been
received: (i) at the option of TMCC; (ii)
unless stated otherwise in the
applicable Final Terms, at the option of
holders of an interest in the temporary
or permanent global Note upon such notice
as is specified in the applicable
Final Terms from Euroclear Bank S.A./N.V.,
Boulevard du Roi Albert II, B-1210,
Brussels as operator of the Euroclear
System ("Euroclear") or Clearstream
Banking, societe anonyme, L-2967,
Luxembourg ("Clearstream, Luxembourg") (as the
case may be) acting on instructions of the
holders of interest in the temporary
or permanent global Note and/or subject to
the payment of costs in connection
with the printing and distribution of the
definitive Notes, if specified in the
applicable Final Terms; (iii) if, after the
occurrence of an Event of Default,
holders representing at least a majority of
the outstanding principal amount of
the Notes of a Series, acting together as a
single class, advise the Agent
through Euroclear and Clearstream,
Luxembourg that they wish to receive
definitive Notes; or (iv) Euroclear,
Clearstream, Luxembourg and any other
relevant clearance system for the temporary
or permanent global Note are all no
longer willing or able to discharge
properly their responsibilities with respect
to such Notes and the Agent and TMCC are
unable to locate a qualified successor.
Words and expressions defined in the Agency Agreement, defined
elsewhere in the Offering Circular or used
in the applicable Final Terms shall
have the same meanings where used in these
Terms and Conditions unless the
context otherwise requires or unless
otherwise stated and provided that, in the
event of inconsistency between the Agency
Agreement and the applicable Final
Terms, the applicable Final Terms will
prevail.
1.
FORM, DENOMINATION AND TITLE
The Notes in this Series are in bearer form and, in the case of
definitive Notes, serially numbered in the
Specified Currency (or Currencies in
the case of Dual Currency Notes) and in the
Specified Denomination(s) specified
in the applicable Final Terms.
This Note may be a Note bearing interest on a fixed rate basis
("Fixed
Rate Note"), a Note bearing interest on a
floating rate basis ("Floating Rate
Note"), a Note issued on a non-interest
bearing basis ("Zero Coupon Note"), a
Note with respect to which interest is
calculated by reference to an index
and/or a formula ("Index Linked Interest
Note") or any combination of the
foregoing, depending upon the Interest
Basis specified in the applicable Final
Terms. This Note may be a Note with respect
to which principal is calculated by
reference to an index and/or a formula
("Index Linked Redemption Note"), a Note
redeemable in installments ("Installment
Note"), a Note with respect to which
principal and/or interest is payable in one
or more Specified Currencies other
than the Specified Currency in which it is
denominated ("Dual Currency Note"), a
Note which is issued on a partly paid basis
("Partly Paid Note") or a
combination of any of the foregoing,
depending on the Redemption/Payment Basis
shown in the applicable Final Terms. (Where
appropriate in the context, "Index
Linked Interest Notes" and "Index Linked
Redemption Notes" are referred to
collectively as "Index Linked Notes".) The
appropriate provisions of these Terms
and Conditions will apply accordingly.
Notes in definitive form are issued with Coupons attached, unless
they
are Zero Coupon Notes in which case
references to interest (other than interest
due after the Maturity Date), Coupons and
Couponholders in these Terms and
Conditions are not applicable. Wherever
Dual Currency Notes or Index Linked
Notes are issued to bear interest on a
fixed or floating rate basis or on a
non-interest bearing basis, the provisions
in these Terms and Conditions
relating to Fixed Rate Notes, Floating Rate
Notes and Zero Coupon Notes,
respectively, shall, where the context so
admits, apply to such Dual Currency
Notes or Index Linked Notes.
Except as set out below, title to the Notes, Receipts and Coupons
will
pass by delivery. The holder of each Coupon
or Receipt, whether or not such
Coupon or Receipt is attached to a Note, in
his capacity as such, shall be
subject to and bound by all the provisions
contained in the relevant Note. TMCC
and any Paying Agent may deem and treat the
bearer of any Note, Receipt or
Coupon as the absolute owner thereof
(whether or not overdue and notwithstanding
any notice to the contrary, including any
notice of ownership or writing thereon
or notice of any previous loss or theft
thereof) for all purposes but, in the
case of any global Note, without prejudice
to the provisions set out in the next
succeeding paragraph.
For so long as any of the Notes are represented by a global Note,
each
person who is for the time being shown in
the records of Euroclear or of
Clearstream, Luxembourg as the holder of a
particular principal amount of Notes
other than a clearing agency (including
Clearstream, Luxembourg and Euroclear)
that is itself an account holder of
Clearstream, Luxembourg or Euroclear (in
which regard any certificate or other
document issued by Euroclear or
Clearstream, Luxembourg as to the nominal
amount of such Notes standing to the
account of any person shall be conclusive
and binding for all purposes except in
the case of manifest error) shall be
treated by TMCC, the Agent and any other
Paying Agent as the holder of such nominal
amount of such Notes for all purposes
other than with respect to the payment of
principal (including premium (if any))
or interest on the Notes, the right to
which shall be vested, as against TMCC,
the Agent and any other Paying Agent solely
in the bearer of the relevant global
Note in accordance with and subject to its
terms (and the expressions
"Noteholder" and "holder of Notes" and
related expressions shall be construed
accordingly). Notes which are represented
by a global Note will be transferable
only in accordance with the rules and
procedures for the time being of Euroclear
or of Clearstream, Luxembourg, as the case
may be.
Any reference herein to Euroclear and/or Clearstream, Luxembourg
shall,
whenever the context so permits, be deemed
to include a reference to any
additional or alternative clearance system
approved by TMCC and the Agent.
If the Specified Currency of this Note is a currency of one of
the
member states of the European Union which
has not adopted the euro, and if
specified in the applicable Final Terms,
this Note shall permit redenomination
and exchange (as referenced in Condition 17
below or in such other manner as set
forth in the applicable Final Terms) at the
option of TMCC.
2.
STATUS OF THE NOTES AND THE CREDIT SUPPORT AGREEMENTS
The Notes will be unsecured general obligations of TMCC and will
rank
pari passu with all other unsecured and
unsubordinated indebtedness for borrowed
money of TMCC from time to time
outstanding. Holders of the Notes, Receipts and
Coupons have the benefits of the credit
support agreements governed by Japanese
law, one between TMC and TFS dated July 14,
2000 and the other between TFS and
TMCC dated October 1, 2000.
3.
FURTHER ISSUES
If indicated in the applicable Final Terms, TMCC may from time to
time,
without the consent of the holders of
Notes, Receipts or Coupons of a Series,
create and issue further Notes of the same
Series having the same terms and
conditions as the Notes (or the same terms
and conditions save for the first
payment of interest thereon and the Issue
Date thereof) so that the same shall
be consolidated and form a single Series
with the outstanding Notes and
references in the Conditions to "Notes"
shall be construed accordingly.
4.
INTEREST
(A) INTEREST
ON FIXED RATE NOTES AND BUSINESS DAY CONVENTION FOR NOTES
OTHER THAN FLOATING RATE NOTES AND INDEX LINKED INTEREST NOTES
Each Fixed Rate Note bears interest on its outstanding nominal
amount
(or if it is a Partly Paid Note, the amount
paid up) from (and including) the
Interest Commencement Date which is
specified in the applicable Final Terms (or
the Issue Date, if no Interest Commencement
Date is separately specified) to but
excluding the Maturity Date specified in
the applicable Final Terms at the
rate(s) per annum equal to the Fixed
Rate(s) of Interest specified in the
applicable Final Terms payable in arrears
on the Interest Payment Date(s) in
each year and on the Maturity Date so
specified if it does not fall on an
Interest Payment Date. Except as provided
in the applicable Final Terms, the
amount of interest payable on each Interest
Payment Date in respect of the Fixed
Interest Period ending on such date will
amount to the Fixed Coupon Amount as
specified in the applicable Final Terms.
Payments of interest on any Interest
Payment Date will, if so specified in the
applicable Final Terms, amount to the
Broken Amount(s) so specified. As used in
these Conditions, "Fixed Interest
Period" means the period from (and
including) an Interest Payment Date (or the
Interest Commencement Date or Issue Date,
as applicable) to (but excluding) the
next (or first) Interest Payment Date or
Maturity Date.
Unless specified otherwise in the applicable Final Terms, the
"Following Business Day Convention" will
apply to the payment of all Notes other
than Floating Rate Notes or Index Linked
Interest Notes, meaning that if the
Interest Payment Date or Maturity Date
would otherwise fall on a day which is
not a Business Day (as defined in Condition
4(b)(i) below), the related payment
of principal or interest will be made on
the next succeeding Business Day as if
made on the date such payment was due. If
the "Modified Following Business Day
Convention" is specified in the applicable
Final Terms for any Note (other than
a Floating Rate Note or an Index Linked
Interest Note), it shall mean that if
the Interest Payment Date or Maturity Date
would otherwise fall on a day which
is not a Business Day (as defined in
Condition 4(b)(i) below), the related
payment of principal or interest will be
made on the next succeeding Business
Day as if made on the date such payment was
due unless it would thereby fall
into the next calendar month in which event
the full amount of payment shall be
made on the immediately preceding Business
Day as if made on the day such
payment was due. Unless specified otherwise
in the applicable Final Terms, the
amount of interest due shall not be changed
if payment is made on a day other
than an Interest Payment Date or the
Maturity Date as a result of the
application of a Business Day Convention
specified above or other Business Day
Convention specified in the applicable
Final Terms.
If interest is required to be calculated for a period ending other
than
on an Interest Payment Date (which for this
purpose shall not include a period
where a payment is made on a day other than
an Interest Payment Date or the
Maturity Date as a result of the
application of a Business Day Convention as
provided in the immediately preceding
paragraph, unless specified otherwise in
the applicable Final Terms) or for Broken
Amounts, such interest shall be
calculated by applying the Fixed Rate of
Interest to each Specified
Denomination, multiplying such sum by the
applicable Fixed Day Count Fraction or
other Day Count Fraction specified in the
Final Terms, and rounding the
resultant figure to the nearest sub-unit of
the relevant Specified Currency,
half of any such sub-unit being rounded
upwards or otherwise in accordance with
applicable market convention.
In these Conditions, "Fixed Day Count Fraction" means:
(1) if "Actual/Actual (ICMA)" is specified in the applicable
Final
Terms,
(x) if the number of days in the relevant period from and
including the most recent Interest Payment Date (or, if none,
the Interest Commencement Date) to but excluding the relevant
payment date (the "Accrual Period") is equal to or shorter
than the Determination Period during which the Accrual Period
ends, the number of days in such Accrual Period divided by the
product of (i) the number of days in such Determination Period
and (ii) the number of Determination Dates that would occur in
one calendar year assuming interest was to be payable in
respect of the whole of that year; or
(y) if the
Accrual Period is longer than the
Determination Period during which the Accrual Period
ends, the sum of:
(i) the number
of days in such Accrual Period falling in
the
Determination Period in which the Accrual Period
begins divided by the product of (A) the number of
days in such Determination Period and (B) the number
of Determination Dates that would occur in one
calendar year assuming interest was to be payable in
respect of the whole of that year; and
(ii)
the number of days in such Accrual Period falling in
the next Determination Period divided by the product
of (A) the number of days in such Determination
Period and (B) the number of Determination Dates that
would occur in one calendar year assuming interest
was to be payable in respect of the whole of that
year;
(2) if
"Actual/Actual (ISDA)" is specified in the applicable Final
Terms, the actual number of days in the relevant period from
and including the most recent Interest Payment Date (or, if
none, the Interest Commencement Date or Issue Date, as
applicable) to but excluding the next scheduled Interest
Payment Date divided by 365 (or, if any portion of that period
falls in a leap year, the sum of (x) the actual number of days
in that portion of the period falling in a leap year divided
by 366; and (y) the actual number of days in that portion of
the period falling in a non-leap year divided by 365); and
(3) if
"30/360" is specified in the applicable Final Terms, the
number of days in the period from and including the most
recent Interest Payment Date (or, if none, the Interest
Commencement Date or Issue Date, as applicable) to but
excluding the next scheduled Interest Payment Date (such
number of days being calculated on the basis of 12 30-day
months) divided by 360 and, in the case of an incomplete
month, the number of days elapsed; and
"sub-unit" means, with respect to any
currency other than euro, the lowest
amount of such currency that is available
as legal tender in the country of such
currency and, with respect to euro, means
one cent; and
"Determination Period" means the period
from (and including) a Determination
Date (as specified in the applicable Final
Terms) to (but excluding) the next
Determination Date (including, where either
the Interest Commencement Date or
the final Interest Payment Date is not a
Determination Date, the period
commencing on the first Determination Date
prior to, and ending on the first
Determination Date falling after, such
date).
<PAGE>
(B) INTEREST
ON FLOATING RATE NOTES AND INDEX LINKED INTEREST NOTES
(i) Interest Payment
Dates
Each Floating Rate Note and Index Linked Interest Note bears
interest
on its outstanding nominal amount (or, if
it is a Partly Paid Note, the amount
paid up) from (and including) the Interest
Commencement Date specified in the
applicable Final Terms (or the Issue Date,
if no Interest Commencement Date is
separately specified) and, unless specified
otherwise in the applicable Final
Terms, such interest will be payable in
arrears on the Maturity Date and on
either:
(A) the
Specified Interest Payment Date(s) (each, together with
the Maturity Date, an "Interest Payment Date") in each year
specified in the applicable Final Terms; or
(B) if no
Specified Interest Payment Date(s) is/are specified in
the applicable Final Terms, each date (each, together with the
Maturity Date, an "Interest Payment Date") which falls the
number of months or other period specified as the Specified
Period in the applicable Final Terms after the preceding
Interest Payment Date or, in the case of the first Interest
Payment Date, after the Interest Commencement Date or Issue
Date, as applicable.
Such interest will be payable in respect of each Interest Period
(which
expression shall, in these Terms and
Conditions, mean the period from (and
including) an Interest Payment Date (or the
Interest Commencement Date or Issue
Date, as applicable) to (but excluding) the
next (or first) Interest Payment
Date).
If a Business Day Convention is specified in the applicable Final
Terms
and (x) if there is no numerically
corresponding day in the calendar month in
which an Interest Payment Date should occur
or (y) if any Interest Payment Date
would otherwise fall on a day which is not
a Business Day (as defined below),
then, if the Business Day Convention
specified is:
(1) in any
case where Specified Periods are specified in
accordance with Condition 4(b)(i)(B) above, the Floating Rate
Convention, such Interest Payment Date (i) in the case of (x)
above, shall be the last day that is a Business Day in the
relevant month and the provisions of (B) below in this
subparagraph (1) shall apply mutatis mutandis or (ii) in the
case of (y) above, shall be postponed to the next day which is
a Business Day unless it would thereby fall into the next
calendar month, in which event (A) such Interest Payment Date
shall be brought forward to the immediately preceding Business
Day and (B) each subsequent Interest Payment Date shall be the
last Business Day in the month which falls the Specified
Period after the preceding applicable Interest Payment Date
occurred; or
(2) the
Following Business Day Convention, such Interest Payment
Date shall be postponed to the next day which is a Business
Day; or
(3) the
Modified Following Business Day Convention, such Interest
Payment Date shall be postponed to the next day which is a
Business Day unless it would thereby fall into the next
calendar month, in which event such Interest Payment Date
shall be brought forward to the immediately preceding Business
Day; or
(4) the
Preceding Business Day Convention, such Interest Payment
Date shall be brought forward to the immediately preceding
Business Day.
If the accrual periods for calculating the amount of interest due
on
any Interest Payment Date are not to be
changed even though an Interest Payment
Date is changed because the originally
scheduled Interest Payment Date falls on
a day which is not a Business Day (as
defined below), this will be specified in
the Final Terms by the notation "no
adjustment for period end dates."
In these Conditions, "Business Day" means (unless otherwise stated
in
the applicable Final Terms) a day which is
both:
(A) a day on
which commercial banks and foreign exchange markets
settle payments and are open for general business (including
dealings in foreign exchange and foreign currency deposits) in
London and any other Applicable Business Center specified in
the applicable Final Terms; and
(B) either (1) in relation to Notes
denominated
in a Specified
Currency other
than euro, a day on which commercial banks and foreign exchange markets
settle
payments and are open for general business (including dealings in foreign
exchange and foreign currency deposits) in
the principal financial center of the
country of the relevant Specified Currency (if other than London and
any other
Applicable Business Center specified in the
applicable Final Terms), or (2) in
relation to Notes denominated in euro, a day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer System (the "TARGET
system") is open. Unless otherwise provided in the applicable Final
Terms, the
principal financial center of any country for the purpose of these Terms
and
Conditions shall be as provided in the 2000
ISDA Definitions, (each as published
by the International Swaps and Derivatives Association, Inc.), as amended and
updated as of the first Issue Date of the Notes of this Series (the "ISDA
Definitions") (except in the case of New Zealand and Australia, where the
principal financial center will be as
specified in the Final Terms).
(ii)
Rate of Interest
The Rate of Interest payable from time to time in respect of
each
Series of Floating Rate Notes and Index
Linked Interest Notes shall be
determined in the manner specified in the
applicable Final Terms.
(iii) ISDA
Determination
(A) Where ISDA Determination is specified in the applicable
Final Terms as the
manner in which the Rate of Interest is to
be determined,
the Rate of
Interest
for each Interest Period will be the relevant ISDA Rate plus or minus (as
indicated in the applicable Final Terms) the Margin (if any)
as determined by
the Agent (or such other Calculation Agent specified in the applicable
Final
Terms). For the purposes of this
sub-paragraph (A), "ISDA Rate" for an Interest
Period means a rate equal to the Floating
Rate that would be determined under an
interest rate swap transaction for that
swap transaction
under the terms of
an
agreement (regardless of any event of
default or termination
event thereunder)
incorporating the ISDA Definitions with the holder of the
relevant Note and
under which:
(1) the manner
in which the Rate of Interest is to be
determined is the "Floating Rate Option" as specified
in the applicable Final Terms;
(2) TMCC is
the "Floating Rate Payer";
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