Exhibit 10.2
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EXECUTION COPY
FIVE YEAR CREDIT AGREEMENT
Dated as of July 30, 2004
among
TOYOTA MOTOR CREDIT CORPORATION
and
TOYOTA CREDIT DE PUERTO RICO CORP.,
as the Borrowers,
CITICORP USA, INC.,
as Administrative Agent,
and
The Other Lenders Party Hereto
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CITIGROUP GLOBAL MARKETS INC.
and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Book Managers
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BANK OF AMERICA, N.A.,
as Syndication Agent
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
BNP PARIBAS
and
JPMORGAN CHASE BANK,
as Documentation Agents
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.............................................................................................1
Section 1.1 Definitions.................................................................................1
Section 1.2 Other Interpretive Provisions..............................................................14
ARTICLE II THE CREDITS...........................................................................................15
Section 2.1 Committed Loans.............................................................................15
Section 2.2 Borrowings, Conversions and Continuations of Committed Loans................................15
Section 2.3 Money Market Loans..........................................................................17
Section 2.4 Prepayments.................................................................................19
Section 2.5 Termination or Reduction of Commitments.....................................................20
Section 2.6 Repayment of Loans..........................................................................20
Section 2.7 Interest....................................................................................21
Section 2.8 Fees........................................................................................21
Section 2.9 Computation of Interest and Fees............................................................22
Section 2.10 Evidence of Debt...........................................................................22
Section 2.11 Payments Generally.........................................................................23
Section 2.12 Sharing of Payments........................................................................24
Section 2.13 Increase in Commitments....................................................................25
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY...............................................................26
Section 3.1 Taxes.......................................................................................26
Section 3.2 Illegality..................................................................................26
Section 3.3 Inability to Determine Rates................................................................27
Section 3.4 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans......27
Section 3.5 Funding Losses..............................................................................28
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Section 3.6 Matters Applicable to all Requests for Compensation.........................................29
ARTICLE IV CONDITIONS............................................................................................30
Section 4.1 Effectiveness...............................................................................30
Section 4.2 Conditions to all Loans.....................................................................31
ARTICLE V REPRESENTATIONS AND WARRANTIES.........................................................................32
Section 5.1 Corporate Existence and Power..............................................................32
Section 5.2 Corporate and Governmental Authorization: No Contravention.................................32
Section 5.3 Binding Effect.............................................................................32
Section 5.4 Financial Information......................................................................32
Section 5.5 Litigation.................................................................................33
Section 5.6 Compliance with ERISA......................................................................33
Section 5.7 Taxes......................................................................................33
Section 5.8 Subsidiaries...............................................................................33
Section 5.9 Not an Investment Company..................................................................34
Section 5.10 Disclosure................................................................................34
ARTICLE VI COVENANTS.............................................................................................34
Section 6.1 Information................................................................................34
Section 6.2 Maintenance of Property; Insurance.........................................................35
Section 6.3 Conduct of Business and Maintenance of Existence...........................................36
Section 6.4 Compliance with Laws.......................................................................36
Section 6.5 Negative Pledge............................................................................36
Section 6.6 Consolidations.............................................................................37
Section 6.7 Use of Proceeds............................................................................38
ARTICLE VII DEFAULTS.............................................................................................39
Section 7.1 Events of Default..........................................................................39
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Section 7.2 Application of Funds........................................................................40
ARTICLE VIII THE ADMINISTRATIVE AGENT............................................................................41
Section 8.1 Appointment and Authorization of Administrative Agent.......................................41
Section 8.2 Delegation of Duties........................................................................41
Section 8.3 Liability of Administrative Agent...........................................................41
Section 8.4 Reliance by Administrative Agent............................................................42
Section 8.5 Notice of Default...........................................................................42
Section 8.6 Credit Decision; Disclosure of Information by Administrative Agent..........................42
Section 8.7 Indemnification of Administrative Agent.....................................................43
Section 8.8 Administrative Agent in its Individual Capacity.............................................43
Section 8.9 Successor Administrative Agent..............................................................44
Section 8.10 Administrative Agent May File Proofs of Claim..............................................44
Section 8.11 Other Agents, Arrangers and Managers.......................................................45
ARTICLE IX MISCELLANEOUS.........................................................................................45
Section 9.1 Amendments, Etc.............................................................................45
Section 9.2 Notices and Other Communications; Facsimile Copies..........................................46
Section 9.3 No Waiver; Cumulative Remedies..............................................................48
Section 9.4 Attorney Costs, Expenses and Taxes..........................................................48
Section 9.5 Indemnification by the Borrowers............................................................48
Section 9.6 Payments Set Aside..........................................................................49
Section 9.7 Successors and Assigns......................................................................49
Section 9.8 Confidentiality.............................................................................52
Section 9.9 Set-off.....................................................................................53
Section 9.10 Interest Rate Limitation...................................................................53
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Section 9.11 Counterparts...............................................................................53
Section 9.12 Integration................................................................................53
Section 9.13 Survival of Representations and Warranties.................................................54
Section 9.14 Severability..............................................................................54
Section 9.15 Tax Forms..................................................................................54
Section 9.16 Replacement of Lenders.....................................................................56
Section 9.17 Governing Law..............................................................................56
Section 9.18 Patriot Act Notice.........................................................................57
Section 9.19 Waiver of Right to Trial by Jury...........................................................57
Schedules
Schedule 2.1 Commitments and Pro Rata Shares
Schedule 9.2 Administrative Agent's Office, Certain Addresses for Notices
Exhibits
Exhibit A Form of Committed Loan Notice
Exhibit B Form of Note
Exhibit C Form of Compliance Certificate
Exhibit D Assignment and Assumption
Exhibit E Form of Money Market Quote Request
Exhibit F Form of Invitation for Money Market Quotes
Exhibit G Form of Money Market Quote
Exhibit H Form of Opinion of Counsel for the Borrowers
Exhibit I Form of Opinion of Peitrantoni Xxxxxx & Xxxxxxx LLP
Exhibit J Form of Opinion of Shearman & Sterling LLP
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FIVE YEAR CREDIT AGREEMENT
THIS FIVE YEAR CREDIT AGREEMENT (this "Agreement") dated as of July 30,
2004 is made among TOYOTA MOTOR CREDIT CORPORATION, a California corporation
("TMCC"), TOYOTA CREDIT DE PUERTO RICO CORP., a corporation organized under the
laws of the Commonwealth of Puerto Rico ("TCPR" and, together with TMCC, the
"Borrowers"), each lender from time to time party hereto (collectively, the
"Lenders" and, individually, a "Lender"), CITICORP USA, INC., as Administrative
Agent, CITIGROUP GLOBAL MARKETS INC, and BANC OF AMERICA SECURITIES LLC, as
Joint Lead Arrangers and Joint Book Managers, BANK OF AMERICA, N.A., as
Syndication Agent, and THE BANK OF TOKYO-MITSUBISHI, LTD., BNP PARIBAS and
JPMORGAN CHASE BANK, as Documentation Agents.
WHEREAS, the Borrowers have requested that the Lenders provide a revolving
credit facility, and the Lenders are willing to do so on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The following terms, as used herein, have the
following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.3.
"Administrative Agent" means Citicorp USA, Inc. in its capacity as
Administrative Agent for the Lenders hereunder, and its successors in such
capacity.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 9.2, or such other address
or account as the Administrative Agent may from time to time notify to the
Borrowers and the Lenders.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrowers) duly
completed by such Lender.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
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"Agent-Related Persons" means the Administrative Agent, together with its
Affiliates (including, in the case of CUSA in its capacity as the Administrative
Agent, Citigroup Global Markets Inc. as an Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Aggregate Commitments" means (i) the Commitments of all the Lenders, (ii)
when used in relation to TMCC, the Aggregate Tranche A Commitments and (iii)
when used in relation to TCPR, the Aggregate Tranche B Commitments.
"Aggregate Tranche A Commitments" means the Tranche A Commitments of all
the Tranche A Lenders.
"Aggregate Tranche B Commitments" means the Tranche B Commitments of all
the Tranche B Lenders.
"Agreement" means this Credit Agreement.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Debt Rating as set forth below:
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Applicable Rate
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Pricing Debt Ratings Facility Fee Eurodollar Rate + Base Rate +
Level S&P/Xxxxx'x
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(greater than or
equal to)AA- or Aa3 0.055% 0.095% 0.00%
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2 Lower than Xxxxx 0 0.070% 0.18% 0.00%
but at least A or A2
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3 Lower than Xxxxx 0 0.090% 0.21% 0.00%
or unrated
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"Debt Rating" means, as of any date of determination, the rating as
determined by either Rating Agency (collectively, the "Debt Ratings") of
TMCC's long term unsecured debt; provided that if a Debt Rating is issued
by each of the Rating Agencies, then the higher of such Debt Ratings shall
apply (with the Debt Rating for Pricing Level 1 being the highest and the
Debt Rating for Pricing Level 3 being the lowest), unless there is a split
in Debt Ratings of more than one level, in which case the Pricing Level
that is one level higher than the Pricing Level of the lower Debt Rating
shall apply.
Initially, the Applicable Rate shall be determined based upon the Debt Ratings
specified in the certificate delivered pursuant to Section 4.1(a)(vii).
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt Rating shall be effective, in the case of an
upgrade, during the period commencing on the date of delivery by TMCC to the
Administrative Agent of notice thereof pursuant to Section 6.1(h) and ending on
the date immediately preceding the effective date of the next change and, in the
case of a downgrade,
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during the period commencing on the date of the public announcement thereof and
ending on the date immediately preceding the effective date of the next such
change.
"Arranger" means either of Citigroup Global Markets Inc. or Banc of
America Securities LLC, in its capacity as a joint lead arranger and a joint
book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit D.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the reasonable allocated cost of internal legal services and all
expenses and disbursements of internal counsel.
"Audited Financial Statements" means (i) for TMCC, the audited
consolidated balance sheet of TMCC and its Subsidiaries for the fiscal year
ended March 31, 2004 (or such later date for which audited financial statements
are delivered pursuant to this Agreement) and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
fiscal year of TMCC and its Subsidiaries, including the notes thereto and (ii)
for TCPR, the audited balance sheet of TCPR for the fiscal year ended March 31,
2004 (or such later date for which audited financial statements are delivered
pursuant to this Agreement) and the related statement of income or operations,
shareholders' equity and cash flows for such fiscal year, including the notes
thereto.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Citibank as
its "base rate." The "base rate" is a rate set by Citibank based upon various
factors including Citibank's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Citibank shall take effect at the opening of business
on the day specified in the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means either of Toyota Motor Credit Corporation or Toyota
Credit de Puerto Rico Corp., as applicable.
"Borrowing" means a Committed Borrowing or a Money Market Borrowing.
"Business Day" means (i) any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, any of the following: the state where the Administrative
Agent's Office is located, California, New York,
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and San Xxxx, Puerto Rico and (ii) if such day relates to any Eurodollar Rate
Loan or Money Market LIBOR Loan, any such day on which dealings in Dollar
deposits are conducted by and between banks in the London interbank eurodollar
market.
"Citibank" means Citibank, N.A.
"Closing Date" means the first date all the conditions precedent in
Section 4.1 are satisfied or waived in accordance with Section 4.1 (or, in the
case of Section 4.1(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986, as amended and any
successor statute.
"Commitment" means, as to each Lender, its Tranche A Commitment or its
Tranche B Commitment, as applicable.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and Tranche and, in the case of Eurodollar Rate
Loans, having the same Interest Period made by each of the appropriate Lenders
pursuant to Section 2.1.
"Committed Loan" means a Committed Tranche A Loan or a Committed Tranche B
Loan.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other and (c) a continuation
of Eurodollar Rate Loans, pursuant to Section 2.2(a), which, if in writing,
shall be substantially in the form of Exhibit A.
"Committed Tranche A Loan" means a loan made by a Tranche A Lender
pursuant to Section 2.1(a).
"Committed Tranche B Loan" means a loan made by a Tranche B Lender
pursuant to Section 2.1(b).
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Consolidated Subsidiary" means, with respect to any Person, at any date
any Subsidiary or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements if such statements
were prepared as of such date.
"Control" has the meaning specified in the definition of "Affiliate."
"CUSA" means Citicorp USA, Inc.
"Debt Rating" has the meaning set forth in the definition of "Applicable
Rate".
"Debtor Relief Law" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the
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United States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan or Money
Market Loan, the Default Rate shall be an interest rate equal to the interest
rate (including any Applicable Rate) otherwise applicable to such Loan plus 2%
per annum, in each case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans required to be funded by it hereunder within
three Business Days of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within three Business Days of
the date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" has the meaning specified in Section 9.7(g).
"Environmental Laws" means any and all Laws relating to the environment,
the effect of the environment on human health or to emissions, discharges or
releases of pollutants, contaminants, hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, hazardous substances or wastes or the clean-up or
other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means any Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with such Borrower, or any
Subsidiary, are treated as a single employer under Section 414 of the Code.
"Eurodollar Base Rate" has the meaning set forth in the definition of
Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurodollar Rate = Eurodollar Base Rate
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1.00 minus Eurodollar Reserve Percentage
Where,
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"Eurodollar Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the Administrative
Agent to be the offered rate that appears on the page of the Telerate screen (or
any successor thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not appear on
such page or service or such page or service shall not be available, the rate
per annum equal to the rate determined by the Administrative Agent to be the
offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as the
rate of interest at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by the Administrative
Agent and with a term equivalent to such Interest Period would be offered by the
Administrative Agent's London Branch to major banks in the London interbank
eurodollar market at their request at approximately 4:00 p.m. (London time) two
Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Loan" means a Committed Loan that bears interest at a
rate based on the Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any date during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirements) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning set forth in Section 7.1.
"Exempt Lender" means a Tranche B Lender that is any of the following: (i)
a Corporate Lender organized under the Laws of Puerto Rico, (ii) a Corporate
Lender organized under the Laws of a jurisdiction other than Puerto Rico that is
engaged in the conduct of a trade or business in Puerto Rico, or (ii) a Lender
organized under the Laws of a jurisdiction other than Puerto Rico that is not
engaged in the conduct of a trade or business in Puerto Rico and that is not a
"related person" to TCPR for purposes of Section 1231(a)(1)(A)(i) of the Puerto
Rico Code by reason of
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the fact that such Lender does not own, directly or indirectly in accordance
with the attribution rules of Section 1231(a)(3) of the Puerto Rico Code, 50% or
more of the value of the stock of TCPR. As used in this definition, "Corporate
Lender" means a Lender that is taxable as a corporation under the Puerto Rico
Code.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Citibank on such
day on such transactions as determined by the Administrative Agent.
"Fee Letter" means a letter, dated as of June 30, 2004 among TMCC, the
Administrative Agent, Bank of America, N.A. and the Arrangers.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, consistently
applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, central bank or other entity exercising executive, legislative,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Indemnified Liabilities" has the meaning set forth in Section 9.5.
"Indemnitees" has the meaning set forth in Section 9.5.
"Interest Payment Date" means, (a) as to any Eurodollar Rate Loan or Money
Market Loan, the last day of each Interest Period applicable to such Loan and
the Revolving Maturity Date; provided, however, that if any Interest Period for
a Eurodollar Rate Loan or Money Market Loan exceeds three months, the respective
dates that fall every three months after the beginning of such Interest Period
shall also be Interest Payment Dates; and (b) as to any Base Rate Committed
Loan, the last Business Day of each March, June, September and December, the
Revolving Maturity Date.
"Interest Period" means, (a) as to each Eurodollar Rate Loan, the period
commencing on the date such Loan is disbursed or converted to or continued as a
Eurodollar Rate Loan and ending on the date one, two, three or six months, and
subject to clause (iii) of this definition, nine or twelve months, thereafter,
as selected by the applicable Borrower in its Committed Loan
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Notice, (b) as to each Money Market LIBOR Loan, the period commencing on the
date such Loan is disbursed and ending on the date that is such whole number of
months thereafter as the applicable Borrower may elect in accordance with
Section 2.3, and (c) as to each Money Market Absolute Rate Loan, the period
commencing on the date such Loan is disbursed and ending on the date that is
such number of days thereafter as the applicable Borrower may elect in
accordance with Section 2.3; provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period;
(iii) in the case of any such Committed Borrowing, the applicable
Borrower shall not be entitled to select an Interest Period having
duration of nine or twelve months unless, by 2:00 P.M. (New York City
time) on the third Business Day prior to the first day of such Interest
Period, each Lender notifies the Administrative Agent that such Lender
will be providing funding for such Committed Borrowing with such Interest
Period (the failure of any Lender to so respond by such time being deemed
for all purposes of this Agreement as an objection by such Lender to the
requested duration of such Interest Period); provided that, if any or all
of the Lenders object to the requested duration of such Interest Period,
the duration of the Interest Period for such Committed Borrowing shall be
one, two, three or six months, as specified by the applicable Borrower in
the applicable Committed Loan Notice as the desired alternative to an
Interest Period of nine or twelve months; and
(iv) no Interest Period for a Eurodollar Rate Loan shall extend
beyond the Revolving Maturity Date.
"Invitation for Money Market Quotes" means an Invitation for Money Market
Quotes substantially in the form of Exhibit F hereto.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or
administration thereof, and all applicable administrative orders of any
Governmental Authority.
"Lender" has the meaning specified in the introductory paragraph hereto.
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"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the applicable
Borrower and the Administrative Agent.
"LIBOR Auction" means a solicitation of Money Market Quotes setting forth
Money Market Margins based on the Eurodollar Rate pursuant to Section 2.3.
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Committed Loan or a Money Market Loan.
"Loan Documents" means this Agreement, each Note, and the Fee Letter.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $25,000,000.
"Maximum Aggregate Commitments" means $7,500,000,000.
"Money Market Absolute Rate" has the meaning set forth in Section
2.3(d)(ii).
"Money Market Absolute Rate Loan" means a loan to be made by a Lender
pursuant to an Absolute Rate Auction.
"Money Market Borrowing" means a borrowing consisting of simultaneous
Money Market Loans of the same Type and, in the case of Money Market LIBOR Loans
bearing interest calculated based on the Eurodollar Rate, having the same
Interest Period made by a Lender pursuant to Section 2.3.
"Money Market LIBOR Loan" means a loan to be made by a Lender pursuant to
a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 3.2).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.3(d)(ii).
"Money Market Quote" means an offer, substantially in the form of Exhibit
G hereto, by a Lender to make a Money Market Loan in accordance with Section
2.3.
"Money Market Quote Request" means a Money Market Quote Request
substantially in the form of Exhibit E hereto.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
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"Note" or "Notes" means a promissory note or promissory notes made by a
Borrower in favor of a Lender evidencing Loans made by such Lender to such
Borrower, substantially in the form of Exhibit B.
"Obligations" means, with respect to any Borrower, all advances to, and
debts, liabilities, obligations, covenants and duties of, such Borrower arising
under any Loan Document or otherwise with respect to any Loan made to such
Borrower, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement by or against
such Borrower of any proceeding under any Debtor Relief Laws naming such
Borrower as the debtor in such proceeding, regardless of whether such interest
and fees are allowed claims in such proceeding.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any jurisdiction other than
the United States or Puerto Rico); (b) with respect to any limited liability
company, the certificate or articles of formation or organization and operating
agreement; and (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of
its formation or organization and, if applicable, any certificate or articles of
formation or organization of such entity.
"Other Taxes" means any and all present or future stamp or documentary
taxes and any other excise or property taxes or charges or similar levies which
arise from any payment made under any Loan Document or from the execution,
delivery, performance, enforcement or registration of, or otherwise with respect
to, any Loan Document, excluding taxes, charges and levies payable in respect of
any Money Market Loan for any reason except a Regulatory Change occurring after
the date that the Money Market Quote for such Money Market Loan was delivered.
"Outstanding Amount" means, with respect to Committed Loans and Money
Market Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowing and prepayments or repayments of Committed
Loans and Money Market Loans, as the case may be, occurring on such date.
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning set forth in Section 9.7(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
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"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pro Rata Share" means (a) with respect to each Tranche A Lender at any
time, a fraction (expressed as a percentage, carried out to the ninth decimal
place), the numerator of which is the amount of the Tranche A Commitment of such
Lender at such time and the denominator of which is the amount of the Aggregate
Tranche A Commitments at such time; provided that if the commitment of each
Lender to make Loans has been terminated pursuant to Section 7.1, then the Pro
Rata Share of each Tranche A Lender shall be determined based on the Pro Rata
Share of such Lender immediately prior to such termination and after giving
effect to any subsequent assignments made pursuant to the terms hereof and (b)
with respect to each Tranche B Lender at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Tranche B Commitment of such Lender at such time and the
denominator of which is the amount of the Aggregate Tranche B Commitments at
such time; provided that if the commitment of each Lender to make Loans has been
terminated pursuant to Section 7.1, then the Pro Rata Share of each Tranche B
Lender shall be determined based on the Pro Rata Share of such Lender
immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to the terms hereof. The initial Pro Rata Share of
each Lender is set forth opposite the name of such Lender on Schedule 2.1 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.
"Puerto Rico" means the Commonwealth of Puerto Rico.
"Puerto Rico Code" means the Puerto Rico Internal Revenue Code of 1994, as
amended and any successor statute.
"Rating Agency" means S&P or Moody's.
"Register" has the meaning set forth in Section 9.7(c).
"Regulatory Change" shall mean, with respect to any Lender, the
introduction of or any change in or in the interpretation of any Law, or such
Lender's compliance therewith.
"Request for Loans" means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice and (b) with respect to
a Money Market Borrowing, a Notice of Money Market Borrowing (as defined in
Section 2.3(f)).
"Required Lenders" means, (a) with respect to matters related to TMCC as
of any date of determination, Lenders having more than 50% of the Aggregate
Tranche A Commitments or, if the commitment of each Tranche A Lender to make
Loans has been terminated pursuant to Section 7.1, Tranche A Lenders holding in
the aggregate more than 50% of the Total Outstandings applicable to TMCC;
provided that the Commitment of, and the portion of the
11
Total Outstandings applicable to TMCC held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required
Tranche A Lenders, (b) with respect to matters related to TCPR as of any date of
determination, Lenders having more than 50% of the Aggregate Tranche B
Commitments or, if the commitment of each Tranche B Lender to make Loans has
been terminated pursuant to Section 7.1, Tranche B Lenders holding in the
aggregate more than 50% of the Total Outstandings applicable to TCPR; provided
that the Commitment of, and the portion of the Total Outstandings applicable to
TCPR held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Tranche B Lenders and (c) in all
other cases, each of the Required Tranche A Lenders and Tranche B Lenders.
"Regulation U" means Regulation U of the FRB, as in effect from time to
time.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer of the applicable Borrower
as set forth in a written notice from such Borrower to the Administrative Agent.
The Administrative Agent may conclusively rely on each such notice unless and
until a subsequent writing shall be delivered by a Borrower to the
Administrative Agent that identifies the prior writing that is to be superseded
and stating that it is to be so superseded. Any document delivered hereunder
that is signed by a Responsible Officer of a Borrower shall be conclusively
presumed to have been authorized by all necessary corporate action on the part
of such Borrower.
"Revolving Maturity Date" means July 30, 2009.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Significant Subsidiary" means any Subsidiary which would meet the
definition of "Significant Subsidiary" contained in Regulation S-X (or similar
successor provision) of the Securities and Exchange Commission.
"Subsidiary" means, as to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person; unless
otherwise specified, "Subsidiary" means a Subsidiary of a Borrower.
"Taxes" means, with respect to any payment by a Borrower under this
Agreement or any other Loan Document, any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, (i) in the case of
the Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise and similar taxes imposed on it, by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Administrative Agent or such Lender, as the case may be, is organized or where
the Administrative Agent's Office or a Lender's Lending Office is located and
(ii) any United States or Puerto Rico
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withholding tax imposed on payments by such Borrower under this Agreement or any
other Loan Document to a Lender that is subject to such withholding tax (x) with
respect to payments on a Money Market Loan, on the date that such Lender
delivers a Money Market Quote for such Money Market Loan and (y) with respect to
all other payments, on the date such Lender becomes a party to this Agreement.
"TMC Consolidated Subsidiary" means, at any date, a Subsidiary or other
entity the accounts of which would be consolidated with those of Toyota Motor
Corporation in its consolidated financial statements if such statements were
prepared as of such date.
"Total Outstandings" means (i) the aggregate Outstanding Amount of all
Loans, (ii) when used in relation to TMCC, the Outstanding Amount of all Loans
made to TMCC and (iii) when used in relation to TCPR, the Outstanding Amount of
all Loans made to TCPR.
"Tranche A Availability Period" means the period from and including the
Closing Date to the earliest of (a) the Revolving Maturity Date, (b) the date of
termination of the Aggregate Tranche A Commitments pursuant to Section 2.5, and
(c) the date of termination of the commitment of each Tranche A Lender to make
Loans pursuant to Section 7.1.
"Tranche A Commitment" means, as to each Lender, its obligation to make
Committed Loans to TMCC pursuant to Section 2.1(a) in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule 2.1 or in the Assignment and Assumption pursuant
to which such Lender becomes a party hereto, as applicable, as such amount may
be adjusted from time to time in accordance with this Agreement.
"Tranche A Lender" means each Lender that has a Tranche A Commitment on
Schedule 2.1 or any Lender to which a portion of the Tranche A Commitment
hereunder has been assigned pursuant to an Assignment and Assumption.
"Tranche A Loan" means an extension of credit by a Lender to TMCC under
Article II in the form of a Committed Loan or a Money Market Loan.
"Tranche B Availability Period" means the period from and including the
Closing Date to the earliest of (a) the Revolving Maturity Date, (b) the date of
termination of the Aggregate Tranche B Commitments pursuant to Section 2.5, and
(c) the date of termination of the commitment of each Tranche B Lender to make
Loans pursuant to Section 7.1.
"Tranche B Commitment" means, as to each Lender, its obligation to make
Committed Loans to TCPR pursuant to Section 2.1(b) in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule 2.1 or in the Assignment and Assumption pursuant
to which such Lender becomes a party hereto, as applicable, as such amount may
be adjusted from time to time in accordance with this Agreement.
"Tranche B Lender" means each Lender that has a Tranche B Commitment on
Schedule 2.1 or any Lender to which a portion of the Tranche B Commitment
hereunder has been assigned pursuant to an Assignment and Assumption.
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"Tranche B Loan" means an extension of credit by a Lender to TCPR under
Article II in the form of a Committed Loan or a Money Market Loan.
"Type" means, with respect to a Loan, its character as a Base Rate Loan, a
Eurodollar Rate Loan, a Money Market LIBOR Loan or a Money Market Absolute Rate
Loan.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" and "U.S." means the United States of America, including
the States and the District of Columbia, but excluding its territories and
possessions.
Section 1.2 Other Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and words
of similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or
electronic form.
(c) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words "to" and
"until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
Section 1.3 Accounting Terms. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a
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consistent basis as in effect from time to time, applied in a manner consistent
with that used in preparing the Audited Financial Statements.
Section 1.5 References to Agreements and Laws. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
Section 1.6 Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Pacific time (daylight or
standard, as applicable).
ARTICLE II
THE CREDITS
Section 2.1 Committed Loans. (a) Subject to the terms and conditions set
forth herein, each Tranche A Lender severally agrees to make loans (each such
loan, a "Committed Tranche A Loan") to TMCC from time to time, on any Business
Day during the Tranche A Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender's Tranche A Commitment;
provided, however, that after giving effect to any Committed Tranche A
Borrowing, (i) the Total Outstandings applicable to TMCC shall not exceed the
Aggregate Tranche A Commitments, and (ii) the aggregate Outstanding Amount of
the Committed Tranche A Loans of any Tranche A Lender shall not exceed such
Lender's Tranche A Commitment. Within the limits of each Lender's Tranche A
Commitment, and subject to the other terms and conditions hereof, TMCC may
borrow under this Section 2.1(a), prepay under Section 2.4, and reborrow under
this Section 2.1(a). Committed Loans may be Base Rate Loans or Eurodollar Rate
Loans, as further provided herein.
(b) Subject to the terms and conditions set forth herein, each Tranche B
Lender severally agrees to make loans (each such loan, a "Committed Tranche B
Loan") to TCPR from time to time, on any Business Day during the Tranche B
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Tranche B Commitment; provided, however,
that after giving effect to any Committed Tranche B Borrowing, (i) the Total
Outstandings applicable to TCPR shall not exceed the Aggregate Tranche B
Commitments, and (ii) the aggregate Outstanding Amount of the Committed Tranche
B Loans of any Tranche B Lender shall not exceed such Lender's Tranche B
Commitment. Within the limits of each Lender's Tranche B Commitment, and subject
to the other terms and conditions hereof, TCPR may borrow under this Section
2.1(b), prepay under Section 2.4, and reborrow under this Section 2.1(b).
Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
Section 2.2 Borrowings, Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made
upon the applicable Borrower's irrevocable notice to the Administrative Agent,
which may be given by
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telephone. Each such notice must be received by the Administrative Agent not
later than 10:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans, and (ii)
on the requested date of any Borrowing of or conversion of Eurodollar Rate Loans
to Base Rate Committed Loans. Each telephonic notice by a Borrower pursuant to
this Section 2.2(a) must be confirmed promptly by delivery to the Administrative
Agent of a written Committed Loan Notice, appropriately completed and signed by
a Responsible Officer or any other Person designated in writing by a Responsible
Officer of such Borrower to the Administrative Agent. Each Borrowing of,
conversion to or continuation of Loans shall be in a principal amount of
$50,000,000 or a whole multiple of $5,000,000 in excess thereof. Each Committed
Loan Notice (whether telephonic or written) shall specify (i) whether the
applicable Borrower is requesting a Committed Borrowing, a conversion of
Committed Loans from one Type to the other, or a continuation of Eurodollar Rate
Loans, (ii) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the principal amount of
Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be
converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If the applicable Borrower fails to specify a Type of Committed
Loan in a Committed Loan Notice or if such Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable Committed
Loans shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the applicable Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each appropriate Lender of the contents thereof and the
amount of its Pro Rata Share of the applicable Committed Loans, and if no timely
notice of a conversion or continuation is provided by the applicable Borrower,
the Administrative Agent shall notify each appropriate Lender of the details of
any automatic conversion to Base Rate Loans described in the preceding
subsection. In the case of a Committed Borrowing, each appropriate Lender shall
make the amount of its Committed Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent's Office not later than
1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice.
Upon satisfaction of the applicable conditions set forth in Section 4.2, the
Administrative Agent shall make all funds so received available to the
applicable Borrower in like funds as received by the Administrative Agent either
by (i) crediting the account of such Borrower on the books of Citibank with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by such Borrower.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the applicable Required Lenders.
(d) The Administrative Agent shall promptly notify the applicable Borrower
and the appropriate Lenders of the interest rate applicable to any Interest
Period for Eurodollar Rate
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Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the applicable Borrower and the appropriate
Lenders of any change in Citibank's base rate used in determining the Base Rate
promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than ten (10) Interest Periods
in effect with respect to Committed Loans.
Section 2.3 Money Market Loans.
(a) In addition to Committed Loans pursuant to Section 2.1, a Borrower
may, as set forth in this Section, request the appropriate Lenders during the
Tranche A Availability Period or the Tranche B Availability Period, as
applicable, to make offers to make Money Market Loans in United States Dollars
to such Borrower; provided, however, that after giving effect to any Money
Market Borrowing (i) the Total Outstandings applicable to TMCC shall not exceed
the Aggregate Tranche A Commitments and (ii) the Total Outstandings applicable
to TCPR shall not exceed the Aggregate Tranche B Commitments. The Lenders may,
but shall have no obligation to, make such offers and the applicable Borrower
may, but shall have no obligation to, accept any such offers in the manner set
forth in this Section.
(b) When a Borrower wishes to request offers to make Money Market Loans
under this Section, it shall transmit to the Administrative Agent by facsimile
transmission a Money Market Quote Request, appropriately completed and signed by
a Responsible Officer or any other Person designated in writing by a Responsible
Officer of such Borrower to the Administrative Agent, so as to be received no
later than 9:00 a.m. on (x) the fourth Business Day prior to the date of
Borrowing proposed therein, in the case of a LIBOR Auction or (y) the Business
Day next preceding the date of Borrowing proposed therein, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as such
Borrower and the Administrative Agent shall have mutually agreed and shall have
notified to the Lenders not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective) specifying: (i) the proposed date of Borrowing, which
shall be a Business Day, (ii) the aggregate amount of such Borrowing, which
shall be $50,000,000 or a larger multiple of $5,000,000, (iii) the duration of
the Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period, and (iv) whether the Money Market Quotes
requested are to set forth a Money Market Margin or a Money Market Absolute
Rate. The applicable Borrower may request offers to make Money Market Loans for
more than one Interest Period in a single Money Market Quote Request. No Money
Market Quote Request shall be given within five Business Days (or such other
number of days as such Borrower and the Administrative Agent may agree) of any
other Money Market Quote Request.
(c) Promptly upon receipt of a Money Market Quote Request, the
Administrative Agent shall send to the Lenders by facsimile transmission an
Invitation for Money Market Quotes, which shall constitute an invitation by the
applicable Borrower to each Lender to submit Money Market Quotes offering to
make the Money Market Loans to which such Money Market Quote Request relates in
accordance with this Section.
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(d) (i) Each Lender may submit a Money Market Quote containing an offer or
offers to make Money Market Loans in response to any Invitation for Money
Market Quotes. Each Money Market Quote must comply with the requirements
of this subsection (d) and must be submitted to the Administrative Agent
by facsimile transmission at the Administrative Agent's Office not later
than (x) 1:00 p.m. on the fourth Business Day prior to the proposed date
of Borrowing, in the case of a LIBOR Auction or (y) 9:00 a.m. on the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or,
in either case, such other time or date as the applicable Borrower and the
Administrative Agent shall have mutually agreed and shall have notified to
the Lenders not later than the date of the Money Market Quote Request for
the first LIBOR Auction or Absolute Rate Auction for which such change is
to be effective); provided that Money Market Quotes submitted by the
Administrative Agent (or any Affiliate of the Administrative Agent) in the
capacity of a Lender may be submitted, and may only be submitted, if the
Administrative Agent or such Affiliate notifies such Borrower of the terms
of the offer or offers contained therein not later than 15 minutes prior
to the deadline for the other Lenders. Subject to Articles IV and VII, any
Money Market Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the
applicable Borrower.
(ii) Each Money Market Quote shall specify (A) the proposed date of
Borrowing; (B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be greater
than or less than the Commitment of the quoting Lender, (x) must be
$5,000,000 or a larger multiple of $l,000,000, (y) may not exceed the
principal amount of Money Market Loans for which offers were requested and
(z) may be subject to an aggregate limitation as to the principal amount
of Money Market Loans for which offers being made by such quoting Lender
may be accepted; (C) in the case of a LIBOR Auction, the margin above or
below the applicable Eurodollar Rate (the "Money Market Margin") offered
for each such Money Market Loan, expressed as a percentage (specified to
the nearest 1/10,000th of 1%) to be added to or subtracted from such base
rate; (D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan; and (E) the
identity of the quoting Lender. A Money Market Quote may set forth up to
five separate offers by the quoting Lender with respect to each Interest
Period specified in the related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it (A) is not
substantially in conformity with the definition thereof or does not
specify all of the information required by subsection (d)(ii); (B)
contains qualifying, conditional or similar language; (C) proposes terms
other than or in addition to those set forth in the applicable Invitation
for Money Market Quotes; or (D) arrives after the time set forth in
subsection (d)(i).
(e) The Administrative Agent shall promptly notify the applicable Borrower
of the terms (i) of any Money Market Quote submitted by a Lender that is in
accordance with subsection (d) and (ii) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Lender with respect to the same Money Market Quote Request.
Any such subsequent Money Market Quote shall be
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disregarded by the Administrative Agent unless such subsequent Money Market
Quote is submitted solely to correct a manifest error in such former Money
Market Quote. The Administrative Agent's notice to the applicable Borrower shall
specify (i) the aggregate principal amount of Money Market Loans for which
offers have been received for each Interest Period specified in the related
Money Market Quote Request, (ii) the respective principal amounts and Money
Market Margins or Money Market Absolute Rates, as the case may be, so offered
and (iii) if applicable, limitations on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market Quote may be accepted.
(f) Not later than 9:00 a.m. on the third Business Day prior to the
proposed date of Borrowing of Money Market LIBOR Loans or 10:00 a.m. on the
Business Day of the proposed date of Borrowing of Money Market Absolute Rate
Loans (or such other time or date as the applicable Borrower and the
Administrative Agent shall have mutually agreed and shall have notified to the
Lenders not later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be
effective), the applicable Borrower shall notify the Administrative Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The applicable Borrower may accept any
Money Market Quote in whole or in part; provided that (i) the aggregate
principal amount of each Money Market Borrowing may not exceed the applicable
amount set forth in the related Money Market Quote Request; (ii) the principal
amount of each Money Market Borrowing must be $50,000,000 or a larger multiple
of $5,000,000; and (iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the case may
be.
(g) If offers are made by two or more Lenders with the same Money Market
Margins or Money Market Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which such offers are
accepted for the related Interest Period, the principal amount of Money Market
Loans in respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in multiples of
$1,000,000, as the Administrative Agent may deem appropriate) in proportion to
the aggregate principal amounts of such offers. Determinations by the
Administrative Agent of the amounts of Money Market Loans shall be conclusive in
the absence of manifest error.
Section 2.4 Prepayments.
(a) Each Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Committed Loans or Money Market
Loans made to it bearing interest at the Base Rate in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 10:00 a.m. (A) three Business Days prior to
any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Committed Loans or Money Market Loans bearing interest
at the Base Rate pursuant to Section 3.2; and (ii) any prepayment of Loans shall
be in a principal amount of $50,000,000 or a whole multiple of $5,000,000 in
excess thereof. Except as provided in the preceding sentence, a Borrower may not
prepay all or any portion of the principal amount of any Money Market Loan made
to it prior to the last day of the Interest Period therefor. Each such notice
shall specify the date and amount of such prepayment, whether the Loans to be
prepaid
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are Committed Loans or Money Market Loans, and the Type(s) of Loans to be
prepaid. The Administrative Agent will promptly notify each appropriate Lender
of its receipt of each such notice and the contents thereof with respect to
Committed Loans, and of the amount of such Lender's Pro Rata Share of such
prepayment of such Committed Loans. The Administrative Agent will promptly
notify each Lender that has made a Money Market Loan that is to be prepaid of
the receipt by the Administrative Agent of each notice and the contents thereof
with respect to such Money Market Loan and the contents thereof and of the
amount of such prepayment of such Money Market Loan. If such notice is given by
a Borrower, such Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to
Section 3.5. Each such prepayment of Committed Loans shall be applied to the
Committed Loans of the appropriate Lenders in accordance with their respective
Pro Rata Shares. Each such prepayment of Money Market Loans shall be applied
ratably to the Money Market Loans of the Lenders that made such Loans.
(b) (i) If for any reason the Total Outstandings applicable to TMCC at any
time exceed the Aggregate Tranche A Commitments then in effect, TMCC shall
immediately prepay Loans in an aggregate amount equal to such excess. (ii) If
for any reason the Total Outstandings applicable to TCPR at any time exceed the
Aggregate Tranche B Commitments then in effect, TCPR shall immediately prepay
Loans in an aggregate amount equal to such excess.
Section 2.5 Termination or Reduction of Commitments. TMCC may, upon notice
to the Administrative Agent, terminate the Aggregate Tranche A Commitments, or
from time to time permanently reduce the Aggregate Tranche A Commitments and
TCPR may, upon notice to the Administrative Agent, terminate the Aggregate
Tranche B Commitments, or from time to time permanently reduce the Aggregate
Tranche B Commitments ; provided that (i) any such notice shall be received by
the Administrative Agent not later than 10:00 a.m. three Business Days prior to
the date of termination or reduction, (ii) any such partial reduction shall be
in an aggregate amount of $25,000,000 or any whole multiple of $5,000,000 in
excess thereof, and (iii) such Borrower shall not terminate or reduce such
Aggregate Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Outstandings applicable to such Borrower would
exceed the Aggregate Commitments applicable to such Borrower. The Administrative
Agent will promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. Any reduction of the Aggregate
Commitments shall be applied to the applicable Commitment of each appropriate
Lender according to its Pro Rata Share. All facility fees accrued for the
account of the applicable Borrower until the effective date of any termination
of the applicable Aggregate Commitments shall be paid on the effective date of
such termination.
Section 2.6 Repayment of Loans.
(a) Each Borrower shall repay to the Lenders on the Revolving Maturity
Date applicable to such Borrower the aggregate principal amount of Loans made to
it and outstanding on such date.
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(b) Each Borrower shall repay each Money Market Loan made to it on the
earlier to occur of (i) the last day of the Interest Period therefor and (ii)
the Revolving Maturity Date.
Section 2.7 Interest.
(a) Subject to the provisions of subsection (b) below, (i) subject to
Section 3.2, each Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each
Base Rate Committed Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate; (iii) subject to Section 3.2, each Money Market
LIBOR Loan shall bear interest on the outstanding principal amount thereof for
the Interest Period applicable thereto at a rate per annum equal to the sum of
the Eurodollar Rate for such Interest Period plus or minus the Money Market
Margin quoted by the Lender making such Loan; and (iv) each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof for the Interest Period applicable thereto at a rate per annum equal to
the Money Market Absolute Rate quoted by the Lender making such Loan.
(b) If any amount payable by any Borrower under any Loan Document is not
paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws. Furthermore,
upon the request of the applicable Required Lenders, while any Event of Default
exists with respect to any Borrower, such Borrower shall pay interest on the
principal amount of all outstanding Obligations of such Borrower hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws. Accrued and unpaid interest on
past due amounts (including interest on past due interest) shall be due and
payable on demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
Section 2.8 Fees.
(a) Facility Fee. (i) TMCC shall pay to the Administrative Agent for the
account of each Tranche A Lender in accordance with its Pro Rata Share, a
facility fee equal to the Applicable Rate times the actual daily amount of the
Aggregate Tranche A Commitments, regardless of usage (or, if the Aggregate
Tranche A Commitments have terminated, on the Outstanding Amount of all Tranche
A Loans). The facility fee payable by TMCC shall accrue at all times during the
Tranche A Availability Period (and thereafter so long as any Tranche A Loans
remain outstanding), including at any time during which one or more of the
conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur
21
after the Closing Date, and on the Revolving Maturity Date (and, if applicable,
thereafter on demand).
(ii) TCPR shall pay to the Administrative Agent for the account of
each Tranche B Lender in accordance with its Pro Rata Share, a facility
fee equal to the Applicable Rate times the actual daily amount of the
Aggregate Tranche B Commitments, regardless of usage (or, if the Aggregate
Tranche B Commitments have terminated, on the Outstanding Amount of all
Tranche B Loans). The facility fee payable by TCPR shall accrue at all
times during the Tranche B Availability Period (and thereafter so long as
any Tranche B Loans remain outstanding), including at any time during
which one or more of the conditions in Article IV is not met, and shall be
due and payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing with the first such date
to occur after the Closing Date, and on the Revolving Maturity Date (and,
if applicable, thereafter on demand).
(iii) The facility fee payable by each Borrower shall be calculated
quarterly in arrears.
(b) Other Fees. The Borrowers shall pay to the Arrangers and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
Section 2.9 Computation of Interest and Fees. All computations of interest
for Base Rate Loans when the Base Rate is determined by Citibank's "base rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan
is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.11(a), bear
interest for one day.
Section 2.10 Evidence of Debt. The Loans made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and by
the Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Loans made by the Lenders
to each Borrower and the interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of any Borrower under the Loan Documents to pay any amount owing with
respect to the Obligations of such Borrower. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error. Upon the request of any Lender made through the Administrative Agent,
each Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender's Loans in
addition to such accounts or records. Each Lender may attach
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schedules to its Note and endorse thereon the date, Type (if applicable), amount
and maturity of its Loans and payments with respect thereto.
Section 2.11 Payments Generally.
(a) All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by any Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 12:00 noon
on the date specified herein. The Administrative Agent will promptly distribute
to each Lender its Pro Rata Share (or other applicable share as provided herein)
of such payment in like funds as received by wire transfer to such Lender's
Lending Office. All payments received by the Administrative Agent after 12:00
noon shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue.
(b) If any payment to be made by any Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following Business
Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.
(c) Unless a Borrower or any Lender has notified the Administrative Agent,
prior to the time any payment is required to be made by it to the Administrative
Agent hereunder, that such Borrower or such Lender, as the case may be, will not
make such payment, the Administrative Agent may assume that such Borrower or
such Lender, as the case may be, has timely made such payment and may (but shall
not be so required to), in reliance thereon, make available a corresponding
amount to the Person entitled thereto. If and to the extent that such payment
was not in fact made to the Administrative Agent in immediately available funds,
then:
(i) if a Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day
from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to
the Administrative Agent in immediately available funds at the Federal
Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent
to the applicable Borrower to the date such amount is recovered by the
Administrative Agent (the "Compensation Period") at a rate per annum equal
to the Federal Funds Rate from time to time in effect. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in the applicable Borrowing. If such Lender
does not pay such amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent may make a demand therefor upon the
applicable Borrower, and such Borrower shall pay such amount to the
Administrative Agent, together with interest thereon for the
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Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Commitment or to
prejudice any rights which the Administrative Agent or any Borrower may
have against any Lender as a result of any default by such Lender
hereunder.
A notice of the Administrative Agent to any Lender or any Borrower with respect
to any amount owing under this subsection (c) shall be conclusive, absent
manifest error.
(d) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and such funds are not made available to the applicable
Borrower by the Administrative Agent because the conditions to the applicable
Borrowing set forth in Article IV are not satisfied or waived in accordance with
the terms hereof, the Administrative Agent shall return such funds (in like
funds as received from such Lender) to such Lender, without interest, on the
succeeding Business Day.
(e) The obligations of the Lenders hereunder to make Committed Loans are
several and not joint. The failure of any Lender to make any Committed Loan on
any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Committed Loan.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
Section 2.12 Sharing of Payments. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Committed Loans made
by it to a Borrower, any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its ratable share
(or other share contemplated hereunder) thereof, such Lender shall immediately
(a) notify the Administrative Agent of such fact, and (b) purchase from the
other Lenders such participations in the Committed Loans made by them to such
Borrower as shall be necessary to cause such purchasing Lender to share the
excess payment in respect of such Committed Loans pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender under any of the circumstances
described in Section 9.6 (including pursuant to any settlement entered into by
the purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered, without further
interest thereon. Each Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by Law,
exercise all of its rights of payment (including any right of set-off, but
subject to Section 9.9) with respect to such participation as fully as if such
Lender were the direct creditor of such Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of
24
participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase have
the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
Section 2.13 Increase in Commitments.
(a) Provided there exists no Default applicable to a Borrower, upon notice
by such Borrower to the Administrative Agent (which shall promptly notify the
appropriate Lenders), such Borrower may from time to time, request an increase
in the Aggregate Commitments applicable to such Borrower to an amount (for all
such requests) not exceeding the lesser of (x) the Maximum Aggregate Commitments
and (y) in the case of the Tranche A Commitments, $7,025,000,000 and in the case
of the Tranche B Commitments, $475,000,000. At the time of sending such notice,
such Borrower (in consultation with the Administrative Agent) shall specify the
time period within which each Lender is requested to respond (which shall in no
event be less than 10 Business Days from the date of delivery of such notice to
the appropriate Lenders). Each appropriate Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Pro Rata Share of such requested increase. Any appropriate
Lender not responding within such time period shall be deemed to have declined
to increase its Commitment. The Administrative Agent shall notify the applicable
Borrower and each appropriate Lender of the Lenders' responses to each request
made hereunder. To achieve the full amount of a requested increase, the
applicable Borrower may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance satisfactory to
the Administrative Agent and its counsel. The consent of the Lenders is not
required to increase the amount of the Aggregate Commitments pursuant to this
Section, except that each appropriate Lender shall have to right to consent to
an increase in the amount of its Commitment as set forth in this Section
2.14(a). If the Lenders and Eligible Assignees do not agree to increase the
applicable Aggregate Commitments by the amount requested by the applicable
Borrower pursuant to this Section 2.14(a), such Borrower may (i) withdraw its
request for an increase in its entirety or (ii) accept, in whole or in part, the
increases that have been offered.
(b) If the applicable Aggregate Commitments are increased in accordance
with this Section, the Administrative Agent and the applicable Borrower shall
determine the effective date (the "Increase Effective Date") and the final
allocation of such increase. The Administrative Agent shall promptly notify the
applicable Borrower and the appropriate Lenders of the final allocation of such
increase and the Increase Effective Date. As a condition precedent to such
increase, the applicable Borrower shall deliver to the Administrative Agent a
certificate of such Borrower dated as of the Increase Effective Date (in
sufficient copies for each appropriate Lender) signed by a Responsible Officer
of such Borrower certifying that no Default applicable to such Borrower exists.
The applicable Borrower shall prepay any Committed Loans outstanding on the
Increase Effective Date (and pay any additional amounts required pursuant to
Section 3.5) to the extent necessary to keep the outstanding Committed Loans
ratable with any revised Pro Rata Shares arising from any nonratable increase in
the Commitments under this Section.
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(c) This Section shall supersede any provisions in Sections 2.12 or 9.1 to
the contrary.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.1 Taxes.
(a) Any and all payments by any Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future Taxes. If
any Borrower shall be required by any Laws to deduct any Taxes or Other Taxes
from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section), each of the
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Borrower shall
make such deductions, (iii) such Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, such Borrower
shall furnish to the Administrative Agent (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, each Borrower agrees to pay to each appropriate Lender
Other Taxes incurred by such Lender.
(c) If any Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, such Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) Each Borrower agrees to indemnify the Administrative Agent and each
appropriate Lender for (i) the full amount of Taxes and Other Taxes (including
any Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section) paid by the Administrative Agent and such Lender,
(ii) amounts payable under Section 3.1(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with
respect thereto. Payment under this subsection (d) shall be made within 15 days
after the date the Lender or the Administrative Agent makes a demand therefor.
Section 3.2 Illegality. If any Lender determines that any Regulatory
Change occurring on or after the date of this Agreement has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful as a result of
such Regulatory Change, for any Lender or its applicable Lending Office to make,
maintain or fund Eurodollar Rate Loans or Money Market LIBOR
26
Loans, or to determine or charge interest rates based upon the Eurodollar Rate,
then, on notice thereof by such Lender to the applicable Borrower through the
Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Committed Loans to Eurodollar Rate
Loans or to make a Money Market LIBOR Loan for which a Money Market Quote has
been delivered shall be suspended until such Lender notifies the Administrative
Agent and the applicable Borrower that the circumstances giving rise to such
determination no longer exist (and such Lender shall give such notice promptly
upon receiving knowledge that such circumstances no longer exist). If a Lender
shall determine that it may not lawfully continue to maintain and fund any of
its outstanding Eurodollar Rate Loans or Money Market LIBOR Loans to maturity
and shall so specify in a notice pursuant to the preceding sentence, upon
receipt of such notice, the applicable Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans or Money Market LIBOR Loans, as the case may
be, of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans or Money Market LIBOR Loans to such day, or immediately,
if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.
Upon any such prepayment or conversion, the applicable Borrower shall also pay
accrued interest on the amount so prepaid or converted. Each Lender agrees to
designate a different Lending Office if such designation will avoid the need for
such notice and will not, in the good faith judgment of such Lender, otherwise
be materially disadvantageous to such Lender.
Section 3.3 Inability to Determine Rates. If the applicable Required
Lenders determine that for any reason adequate and reasonable means do not exist
for determining the Eurodollar Base Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan made to a Borrower, or that the
Eurodollar Base Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan made to a Borrower does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative Agent
will promptly so notify such Borrower and each Lender. Thereafter, the
obligation of the appropriate Lenders to make or maintain Eurodollar Rate Loans
to such Borrower shall be suspended until the Administrative Agent (upon the
instruction of the applicable Required Lenders) revokes such notice (which
revocation shall be made promptly upon such instruction from the applicable
Required Lenders). Upon receipt of such notice, the applicable Borrower may
revoke any pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Committed Borrowing of Base Rate Loans in the
amount specified therein.
Section 3.4 Increased Cost and Reduced Return; Capital Adequacy; Reserves
on Eurodollar Rate Loans.
(a) If on or after (i) the date hereof, in the case of Eurodollar Rate
Loans, or (ii) the date that a Money Market Quote is given for a Money Market
LIBOR Loan, any Lender determines that as a result of a Regulatory Change, there
shall be a material increase in the cost to such Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Loans or Money Market LIBOR Loan,
or a reduction in the amount received or receivable by such Lender in connection
with any Eurodollar Rate Loan or Money Market LIBOR Loan (excluding for purposes
of this subsection (a) any such increased costs or reduction in amount resulting
from (i)
27
Taxes or Other Taxes (as to which Section 3.1 shall govern), (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States, Puerto Rico or any foreign jurisdiction or any political subdivision of
either thereof under the Laws of which such Lender is organized or has its
Lending Office, and (iii) reserve requirements utilized in the determination of
the Eurodollar Rate), then from time to time within 15 days of demand by such
Lender (with a copy of such demand to the Administrative Agent), subject to
Section 3.4(c), the applicable Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law after the
date hereof regarding capital adequacy or any change therein or in the
interpretation thereof, or compliance by such Lender (or its Lending Office)
therewith (including determination that, for purposes of capital adequacy
requirements, the Commitment of such Lender does not constitute a commitment
with an original maturity of one year or less), has the effect of materially
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), subject to
Section 3.4(c),the applicable Borrower shall pay within 15 days of demand by
such Lender such additional amounts as will compensate such Lender for such
reduction.
(c) Promptly after receipt of knowledge of any Regulatory Change or other
event that will entitle any Lender to compensation under this Section 3.4, such
Lender shall give notice thereof to the applicable Borrower and the
Administrative Agent certifying the basis for such request for compensation in
accordance with Section 3.6(a) and designate a different Lending Office if such
designation will avoid, or reduce the amount of, compensation payable under this
Section 3.4 and will not, in the good faith judgment of such Lender, otherwise
be materially disadvantageous to such Lender. Notwithstanding anything in
Sections 3.4(a) or 3.4(b) to the contrary, no Borrower shall be obligated to
compensate any Lender for any amount arising or accruing before the earlier of
(i) 180 days prior to the date on which such Lender gives notice to such
Borrower and the Administrative Agent under this Section 3.4(c) or (ii) the date
such amount arose or began accruing (and such Lender did not know such amount
was arising or accruing) as a result of the retroactive application of
Regulatory Change or other event giving rise to the claim for compensation.
Section 3.5 Funding Losses. Within 15 days after delivery of the
certificate described in the Section 3.6(a) by any Lender (with a copy to the
Administrative Agent) from time to time, each Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of each of the following (except to the extent
incurred by any Lender as a result of any action taken pursuant to Section 3.2):
(a) any continuation, conversion, payment or prepayment of any Loan made
to such Borrower other than a Base Rate Loan on a day other than the last day of
the Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
28
(b) any failure by such Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by such
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by such Borrower
pursuant to Section 9.16;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained but excluding loss of margin for
the period after which any such payment or failure to convert, borrow or prepay.
The applicable Borrower shall also pay any customary administrative fees charged
by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrowers to the Lenders
under this Section 3.5, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining
the Eurodollar Rate for such Loan by a matching deposit or other borrowing in
the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.
Section 3.6 Matters Applicable to all Requests for Compensation.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth in reasonable detail the
additional amount or amounts to be paid to it hereunder shall be conclusive if
prepared reasonably and in good faith. In determining such amount, the
Administrative Agent or such Lender may use any reasonable averaging and
attribution methods.
(b) If (i) the obligation of any Lender to make Eurodollar Rate Loans
shall be suspended pursuant to Section 3.2 or (ii) any Lender has demanded
compensation under Section 3.1 or Section 3.4 with respect to Eurodollar Rate
Loans, the applicable Borrower may give notice to such Lender through the
Administrative Agent that, unless and until such Lender notifies such Borrower
that the circumstances giving rise to such suspension or demand for compensation
no longer exist, effective 5 Business Days after the date of such notice from
such Borrower (A) all Loans which would otherwise be made by such Lender as
Eurodollar Rate Loans shall be made instead as Base Rate Loans (on which
interest and principal shall be payable contemporaneously with the related
Eurodollar Rate Loans of the other Lenders), and (B) after each of such Lender's
Eurodollar Rate Loans has been repaid, all payments of principal which would
otherwise be applied to Eurodollar Rate Loans shall be applied to repay such
Lender's Base Rate Loans instead.
(c) If any Lender makes a claim for compensation or other payment under
Section 3.1 or Section 3.4 or if any Lender determines that it is unlawful or
impermissible for it to make, maintain or fund Eurodollar Rate Loans or Money
Market LIBOR Loans pursuant to Section 3.2, the applicable Borrower may replace
such Lender in accordance with Section 9.16.
29
(d) Prior to giving notice pursuant to Section 3.2 or to demanding
compensation or other payment pursuant to Section 3.1 or Section 3.4, each
Lender shall consult with the applicable Borrower and the Administrative Agent
with reference to the circumstances giving rise thereto; provided that nothing
in this Section 3.6(d) shall limit the right of any Lender to require full
performance by such Borrower of its obligations under such Sections.
ARTICLE IV
CONDITIONS
Section 4.1 Effectiveness. This Agreement shall become effective on the
date that each of the following conditions shall have been satisfied:
(a) Receipt by the Administrative Agent of the following, each of which
shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
applicable Borrower, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date)
and each in form and substance satisfactory to the Administrative Agent and its
legal counsel:
(i) executed counterparts of this Agreement, sufficient in number
for distribution to the Administrative Agent, each Lender and each
Borrower;
(ii) a Note executed by each Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Borrower as the Administrative Agent may require evidencing the identity,
authority and capacity of each Responsible Officer thereof authorized to
act as a Responsible Officer in connection with this Agreement and the
other Loan Documents;
(iv) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Borrower is duly organized or
formed, and that such Borrower is validly existing, in good standing and
qualified to engage in business, in the case of TMCC, California and, in
the case of TCPR, in Puerto Rico;
(v) a favorable opinion of the General Counsel of each Borrower,
addressed to the Administrative Agent and each Lender, as to the matters
and in the form set forth in Exhibit H;
(vi) a favorable opinion of Xxxxxxxxxxx Xxxxxx & Xxxxxxx LLP,
counsel to the Administrative Agent, addressed to the Administrative Agent
and each Lender, as to the matters and in the form set forth in Exhibit I;
30
(vii) a favorable opinion of Shearman & Sterling LLP, counsel to the
Administrative Agent, addressed to the Administrative Agent and each
Lender, as to the matters and in the form set forth in Exhibit J;
(viii) a certificate signed by a Responsible Officer of TMCC
certifying the current Debt Ratings of TMCC; and
(ix) such other assurances, certificates, documents or consents as
the Administrative Agent or the applicable Required Lenders reasonably may
require.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have
paid all Attorney Costs of the Administrative Agent to the extent invoiced prior
to or on the Closing Date, plus such additional amounts of Attorney Costs as
shall constitute its reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrowers
and the Administrative Agent).
(d) The Borrowers shall have terminated the commitments, and paid in full
all indebtedness, interest, fees and other amounts outstanding, under (i) in the
case of TMCC, the Credit Agreement (364-Day Facility) dated as of September 12,
2002, as amended and restated as of September 11, 2003, and the Credit Agreement
(Five Year Facility) dated as of September 12, 2002, each among TMCC, the
lenders parties thereto, JPMorgan Chase Bank, as syndication agent, The Bank of
Tokyo-Mitsubishi, Ltd. and Citibank, N.A., as documentation agents, and Bank of
America, N.A., as administrative agent for the lenders, and (ii) in the case of
TCPR, the Credit Agreement (364-Day Facility) dated as of September 11, 2003 and
the Credit Agreement (Five Year Facility) dated as of September 12, 2002, each
among TCPR, the lenders parties thereto, JPMorgan Chase Bank, as syndication
agent, The Bank of Tokyo-Mitsubishi, Ltd. and Citibank, N.A., as documentation
agents, and Bank of America, N.A., as administrative agent for the lenders, and
each of the Lenders that is a party to any of the foregoing credit agreements
hereby waives, upon execution of this Agreement, the requirement of prior notice
under such credit agreement relating to the termination of commitments
thereunder.
Section 4.2 Conditions to all Loans. The obligation of each Lender to
honor any Request for Loans (other than a Committed Loan Notice requesting only
a conversion of Committed Loans to the other Type, or a continuation of
Eurodollar Rate Loans) made by any Borrower is subject to the following
conditions precedent:
(a) The representations and warranties of such Borrower contained in
Article V (except for the representations and warranties set forth in Section
5.4(b), the accuracy of which it is expressly agreed shall not be a condition to
making Loans) shall be true and correct on and as of the date of such Loan,
except (A) to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct as of
such earlier date, and (B) except that for purposes of this Section 4.2, the
representations and warranties
31
contained in Section 5.4(a) shall be deemed to refer to the most recent
statements furnished from time to time pursuant to Section 6.1(a).
(b) No Default with respect to such Borrower shall exist, or would result
from such proposed Loan.
(c) The Administrative Agent shall have received a Request for Loans in
accordance with the requirements hereof.
Each Request for Loans (other than a Committed Loan Notice requesting only
a conversion of Committed Loans to the other Type or a continuation of
Eurodollar Rate Loans) submitted by any Borrower shall be deemed to be a
representation and warranty by such Borrower that the conditions specified in
Sections 4.2(a) and (b) have been satisfied on and as of the date of the
applicable Loans.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Administrative Agent and the
Lenders that:
Section 5.1 Corporate Existence and Power. Such Borrower is a corporation
duly incorporated, validly existing and in good standing under the Laws of its
jurisdiction or organization, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. Such Borrower is in compliance with all Laws
except (i) where failure to be so could not reasonably be expected to cause a
material adverse change in the business, financial position, results of
operations or prospects of such Borrower and its Consolidated Subsidiaries
considered as a whole or (ii) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings diligently
conducted.
Section 5.2 Corporate and Governmental Authorization: No Contravention.
The execution, delivery and performance by such Borrower of this Agreement and
each other Loan Document are within such Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any Governmental Authority and do not contravene, or
constitute a default under, any provision of applicable Law or of the
Organization Documents of such Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon such Borrower or any
of its Subsidiaries.
Section 5.3 Binding Effect. This Agreement constitutes a valid and binding
agreement of such Borrower and each other Loan Document, when executed and
delivered buy such Borrower in accordance with this Agreement, will constitute a
valid and binding obligation of such Borrower, in each case enforceable in
accordance with its terms.
Section 5.4 Financial Information.
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(a) The Audited Financial Statements applicable to such Borrower (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein and (ii) fairly
present, in conformity with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly provided therein, (A) in the case
of TMCC, the consolidated financial position of TMCC and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such fiscal year and (B) in the case of TCPR, the financial
position of TCPR as of such date and its results of operations and cash flow for
such fiscal year.
(b) Since the date of the Audited Financial Statements, there has been no
material adverse change in the business, financial position, results of
operations or prospects of such Borrower and its Consolidated Subsidiaries,
considered as a whole.
Section 5.5 Litigation. There is no action, suit or proceeding pending
against, or to the knowledge of such Borrower threatened against or affecting,
such Borrower or any of its Subsidiaries before any court, arbiter, or
Governmental Authority in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business, consolidated
financial position or consolidated results of operations of such Borrower and
its Subsidiaries, considered as a whole, or which in any manner draws into
question the validity of this Agreement or any Loan Document.
Section 5.6 Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA, the
Internal Revenue Code and the Puerto Rico Code with respect to each Plan. No
member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code in respect of any Plan,
(ii) failed to make any contribution or payment to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan
or Benefit Arrangement, which has resulted or could result in the imposition of
a lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
Section 5.7 Taxes. Such Borrower and its Subsidiaries have filed all
income tax returns required to be filed under the Code and the Puerto Rico Code
and all other material tax returns which are required to be filed by them and
have paid all taxes, assessments, fees and other governmental charges due
pursuant to such returns or pursuant to any assessment received by such Borrower
or any Subsidiary. The charges, accruals and reserves on the books of such
Borrower and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of such Borrower, adequate.
Section 5.8 Subsidiaries. (a) In respect of TMCC, each of TMCC's
Subsidiaries is a Person duly organized, validly existing and in good standing
under the Laws of its jurisdiction of incorporation, and has all organizational
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted. (b) In respect of
TCPR, TCPR does not have any Subsidiaries.
33
Section 5.9 Not an Investment Company. Such Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
Section 5.10 Disclosure. All information heretofore furnished by such
Borrower to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by such Borrower to the Administrative
Agent or any Lender will be, true, accurate and complete in all material
respects on the date as of which such information is stated or certified.
ARTICLE VI
COVENANTS
Each Borrower agrees that, so long as any Lender has any Commitment
hereunder to such Borrower or any Loan or any Obligation of such Borrower
hereunder shall remain unpaid or unsatisfied:
Section 6.1 Information. Such Borrower will deliver to the Administrative
Agent and each of the Lenders:
(a) as soon as available and in any event within 120 days after the end of
each fiscal year of such Borrower, a consolidated balance sheet of such Borrower
and its Consolidated Subsidiaries as of the end of such fiscal year and the
related consolidated statements of income and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event within 60 days after the end of
each of the first three quarters of each fiscal year of such Borrower, a
consolidated balance sheet of such Borrower and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income and
cash flows for such quarter and for the portion of such Borrower's fiscal year
ended at the end of such quarter setting forth in the case of such statements of
income and cash flow in comparative form the figures for the corresponding
quarter and the corresponding portion of such Borrower's fiscal year;
(c) simultaneously with the delivery of each set of financial statements
referred to in subsection (a) above, a Compliance Certificate;
(d) within 5 days after any officer of such Borrower obtains knowledge of
any Default in respect of such Borrower, if such Default is then continuing, a
certificate of the chief financial officer or the chief accounting officer of
such Borrower setting forth the details thereof and the action which such
Borrower is taking or proposes to take with respect thereto;
(e) promptly after the same are available, copies of all annual
registration statements (other than exhibits thereto, pricing supplements and
any registration statements (x) on Form S-8 or its equivalent or (y) in
connection with asset securitization transactions) and reports on Forms 10-K,
10-Q and 8-K (or their equivalents) which such Borrower shall have filed with
the SEC
34
under Section 13 or 15(d) of the Securities Exchange Act of 1934 and not
otherwise required to be delivered to the Administrative Agent pursuant hereto;
(f) within 15 days after any officer of such Borrower at any time obtains
knowledge that any representation or warranty set forth in Section 5.6 would not
be true if made at such time, a certificate of the chief financial officer or
the chief accounting officer of such Borrower setting forth the details thereof
and the action which such Borrower is taking or proposes to take with respect
thereto;
(g) promptly upon occurrence, notice of any announcement by a Rating
Agency of a change in a Debt Rating that results or will result in a change in
the Applicable Rate; and
(h) from time to time such additional information regarding the financial
position or business of such Borrower and its Subsidiaries as the Administrative
Agent, at the request of any Lender, may reasonably request.
Documents required to be delivered pursuant to Section 6.1(a), (b) or (e)
may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date (i) on which such Borrower posts such documents, or
provides a link thereto on such Borrower's website on the Internet at the
website address listed on Schedule 9.2; or (ii) on which such documents are
posted on such Borrower's behalf on IntraLinks/IntraAgency or another relevant
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) such Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests
such Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) such Borrower shall notify (which may be by facsimile or electronic mail)
the Administrative Agent, which shall notify the Lenders, of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. The Administrative
Agent shall have no obligation to request the delivery or to maintain copies of
the documents referred to above, and in any event shall have no responsibility
to monitor compliance by any Borrower with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
Section 6.2 Maintenance of Property; Insurance.
(a) Such Borrower will keep, and will cause each Significant Subsidiary to
keep, all material property useful and necessary in its business in good working
order and condition, ordinary wear and tear excepted.
(b) Such Borrower will maintain, and will cause each Significant
Subsidiary to maintain, with financially sound and reputable insurance companies
insurance in at least such amounts and against at least such risks (and with
such risk retention) as are usually insured against by companies of established
repute engaged in the same or similar business as such Borrower or such
Significant Subsidiary, and such Borrower will promptly furnish to the
Administrative Agent and the Lenders such information as to insurance carried as
may be reasonably requested in writing by the Administrative Agent.
35
Section 6.3 Conduct of Business and Maintenance of Existence. Such
Borrower will continue, and will cause each Significant Subsidiary to continue,
to engage in business of the same general type as conducted by such Borrower and
its Significant Subsidiaries on the Closing Date, and will preserve, renew and
keep in full force and effect, and will cause each Significant Subsidiary to
preserve, renew and keep in full force and effect, their respective corporate
existence and their respective rights, privileges and franchises necessary or
desirable in the normal conduct of business; provided that nothing in this
Section 6.3 shall prohibit (i) any merger or consolidation involving such
Borrower which is permitted by Section 6.6, (ii) the merger of a Significant
Subsidiary into such Borrower or the merger or consolidation of a Significant
Subsidiary with or into another Person if the corporation surviving such
consolidation or merger is a Significant Subsidiary and if, in each case, after
giving effect thereto, no Default with respect to such Borrower shall have
occurred and be continuing or (iii) the termination of the corporate existence
of any Significant Subsidiary if such Borrower in good faith determines that
such termination is in the best interest of such Borrower and is not materially
disadvantageous to the Lenders.
Section 6.4 Compliance with Laws. Such Borrower will comply, and cause
each Significant Subsidiary to comply, in all material respects with all
applicable Laws (including, without limitation, Environmental Laws and ERISA and
the rules and regulations thereunder) except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings.
Section 6.5 Negative Pledge. Such Borrower will not pledge or otherwise
subject to any lien any property or assets of such Borrower unless the Loans and
the Obligations of such Borrower under this Agreement are secured by such lien
equally and ratably with all other obligations secured thereby so long as such
other obligations shall be so secured; provided, however, that such covenant
will not apply to liens securing obligations which do not in the aggregate at
anyone time outstanding exceed 20% of Net Tangible Assets (as defined below) of
such Borrower and it Consolidated Subsidiaries and also will not apply to:
(a) the pledge of any assets of such Borrower to secure any financing by
such Borrower of the exporting of goods to or between, or the marketing thereof
in, jurisdictions other than the United States and Puerto Rico in connection
with which such Borrower reserves the right, in accordance with customary and
established banking practice, to deposit, or otherwise subject to a lien, cash,
securities or receivables, for the purpose of securing banking accommodations or
as the basis for the issuance of bankers' acceptances or in aid of other similar
borrowing arrangements;
(b) the pledge of receivables of such Borrower payable in currencies other
than United States dollars to secure borrowings in jurisdictions other than the
United States and Puerto Rico;
(c) any deposit of assets of such Borrower in favor of any governmental
bodies to secure progress, advance or other payments under a contract or
statute;
(d) any lien or charge on any property of such Borrower, tangible or
intangible, real or personal, existing at the time of acquisition or
construction of such property (including
36
acquisition through merger or consolidation) or given to secure the payment of
all or any part of the purchase or construction price thereof or to secure any
indebtedness incurred prior to, at the time of, or within one year after, the
acquisition or completion of construction thereof for the purpose of financing
all or any part of the purchase or construction price thereof;
(e) bankers' liens or rights of offset;
(f) any lien securing the performance of any contract or undertaking not
directly or indirectly in connection with the borrowing of money, obtaining of
advances or credit or the securing of debt, if made and continuing in the
ordinary course of business;
(g) any lien to secure nonrecourse obligations in connection with such
Borrower's engaging in leveraged or single-investor lease transactions;
(h) any lien to secure payment obligations with respect to (x) rate swap
transactions, swap options, basis swaps, forward rate transactions, commodity
swaps, commodity options, equity or equity index swaps, equity or equity index
options, bond options, interest rate options, foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, credit
protection transactions, credit swaps, credit default swaps, credit default
options, total return swaps, credit spread transactions, repurchase
transactions, reverse repurchase transactions, buy/sell-back transactions,
securities lending transactions, weather index transactions, or forward
purchases or sales of a security, commodity or other financial instrument or
interest (including any option with respect to any of these transactions), or
(y) transactions that are similar those described above; and
(i) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any lien, charge or pledge
referred to in the foregoing clauses (a) to (h), inclusive, of this Section 6.5;
provided, however, that the amount of any and all obligations and indebtedness
secured thereby shall not exceed the amount thereof so secured immediately prior
to the time of such extension, renewal or replacement and that such extension,
renewal or replacement shall be limited to all or a part of the property which
secured the charge or lien so extended, renewed or replaced (plus improvements
on such property).
"Net Tangible Assets" means, with respect to any Borrower, the aggregate
amount of assets (less applicable reserves and other properly deductible items)
of such Borrower and its Consolidated Subsidiaries after deducting therefrom all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles of such Borrower and its Consolidated
Subsidiaries, all as set forth on the most recent balance sheet of such Borrower
and its Consolidated Subsidiaries prepared in accordance with GAAP.
Section 6.6 Consolidations. Mergers and Sales of Assets. (a) Such Borrower
shall not consolidate with or merge into any other Person or convey, transfer or
lease (whether in one transaction or in a series of transactions) all or
substantially all of its properties and assets to any Person, unless:
(i) the Person formed by such consolidation or into which such
Borrower is merged or the Person which acquires by conveyance or transfer,
or which leases, all or
37
substantially all of the properties and assets of such Borrower shall be a
Person organized and existing under the Laws of the United States of
America, any State thereof, the District of Columbia or Puerto Rico (the
"Successor Corporation") and shall expressly assume, by an amendment or
supplement to this Agreement, signed by such Borrower and such Successor
Corporation and delivered to the Administrative Agent, such Borrower's
obligation with respect to the due and punctual payment of the principal
of and interest on all the Loans made to such Borrower and the due and
punctual payment of all other Obligations payable by such Borrower
hereunder and the performance or observance of every covenant herein on
the part of such Borrower to be performed or observed;
(ii) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of such Borrower as
a result of such transaction as having been incurred by such Borrower at
the time of such transaction, no Default with respect to such Borrower
shall have happened and be continuing;
(iii) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of such Borrower would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by Section 6.5 hereof, such
Borrower or the Successor Corporation, as the case may be, takes such
steps as shall be necessary effectively to secure the Loans and the
Obligations of such Borrower under this Agreement equally and ratably with
(or prior to) all indebtedness secured thereby; and
(iv) such Borrower has delivered to the Administrative Agent a
certificate signed by an executive officer and a written opinion or
opinions of counsel satisfactory to the Administrative Agent (who may be
counsel to such Borrower), each stating that such amendment or supplement
to this Agreement complies with this Section 6.6 and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
(b) Upon any consolidation or merger or any conveyance, transfer or lease
of all or substantially all of the properties and assets of such Borrower in
accordance with Section 6.6(a), the Successor Corporation shall succeed to, and
be substituted for, and may exercise every right and power of, such Borrower
under this Agreement and the Loans with the same effect as if the Successor
Corporation had been named as a Borrower therein and herein, and thereafter,
such Borrower, except in the case of a lease of such Borrower's properties and
assets, shall be released from its liability as obligor on any of the Loans and
under this Agreement.
Section 6.7 Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by such Borrower for its general corporate purposes
including, without limitation, the refunding of its maturing commercial paper.
None of such proceeds will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate of buying or carrying any "margin
stock" within the meaning of Regulation U. During the Tranche A Availability
Period and the Tranche B Availability Period, as applicable, subject to the
other terms and conditions of this Agreement, such Borrower may request and use
the proceeds of Loans of one Type to repay outstanding Loans of another Type.
38
ARTICLE VII
DEFAULTS
Section 7.1 Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing with respect to a
Borrower:
(a) such Borrower shall fail to pay when due any principal of any Loan
made to it or shall fail to pay within 5 days of the due date thereof any
interest on any Loan, any fees or any other amount payable by it hereunder;
(b) such Borrower shall fail to observe or perform any covenant contained
in Section 6.5, Section 6.6 or Section 6.7;
(c) such Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after notice thereof has been given to such Borrower by
the Administrative Agent at the request of any Lender;
(d) any representation, warranty, certification or statement made by such
Borrower in this Agreement or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have been incorrect
in any material respect when made (or deemed made);
(e) indebtedness for borrowed money of such Borrower or any of its
Subsidiaries in an aggregate amount in excess of $50,000,000 shall not be paid
when due or shall be accelerated prior to its stated maturity date and, within
10 days after written notice thereof is given to such Borrower by the
Administrative Agent, such indebtedness shall not be discharged or such
acceleration shall not be rescinded or annulled;
(f) such Borrower or any Significant Subsidiary of such Borrower shall
commence or consent to the commencement of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding;
(g) any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $10,000,000 which it shall have become liable
to pay under Title IV of ERISA; or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan; or a condition shall
exist by
39
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any Material Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans which could cause one or
more members of the ERISA Group to incur a current payment obligation in excess
of $50,000,000;
(h) judgments or orders for the payment of money in excess of $50,000,000
in the aggregate shall be rendered against such Borrower or any Significant
Subsidiary of such Borrower and such judgments or orders shall continue
unsatisfied and unstayed for a period of 30 days; or
(i) such Borrower shall cease to be a TMC Consolidated Subsidiary;
then, and in every such event, the Administrative Agent shall, at the
request of, or may, with the consent of, the applicable Required Lenders and
after notice to the applicable Borrower (i) terminate the commitment of each
Lender to make Loans to such Borrower, and they shall thereupon terminate, and
(ii) declare the unpaid principal amount of all outstanding Loans made to such
Borrower, all interest accrued and unpaid thereon, and all other amounts owing
or payable hereunder or under any other Loan Document by such Borrower to be
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by each Borrower;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans to such Borrower
shall automatically terminate, the unpaid principal amount of all outstanding
Loans made to such Borrower and all interest and other amounts as aforesaid
shall automatically become due and payable.
Section 7.2 Application of Funds. After the exercise of remedies provided
for in Section 7.1 (or after the Loans have automatically become immediately due
and payable), any amounts received on account of the Obligations of any Borrower
shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations of such Borrower
constituting fees, indemnities, expenses and other amounts (including Attorney
Costs and amounts payable under Article III) payable to the Administrative Agent
in its capacity as such;
Second, to payment of that portion of the Obligations of such Borrower
constituting fees, indemnities and other amounts (other than principal and
interest) payable to the appropriate Lenders (including Attorney Costs and
amounts payable under Article III), ratably among them in proportion to the
amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations of such Borrower
constituting accrued and unpaid interest on the Loans, ratably among the
appropriate Lenders in proportion to the respective amounts described in this
clause Third payable to them;
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Fourth, to payment of that portion of the Obligations of such Borrower
constituting unpaid principal of the Loans, ratably among the appropriate
Lenders in proportion to the respective amounts described in this clause Fourth
held by them; and
Last, the balance, if any, after all of the Obligations of such Borrower
have been indefeasibly paid in full, to such Borrower or as otherwise required
by Law.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.1 Appointment and Authorization of Administrative Agent. Each
Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
Section 8.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
Section 8.3 Liability of Administrative Agent. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Borrower or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of
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any Borrower or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Lender or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Borrower or any Affiliate thereof.
Section 8.4 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to the Borrowers),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to take
any action under any Loan Document unless it shall first receive such advice or
concurrence of the applicable Required Lenders as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the applicable Required Lenders (or such greater number of Lenders as
may be expressly required hereby in any instance) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.1, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
Section 8.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or a
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the applicable
Required Lenders in accordance with Article VII; provided, however, that unless
and until the Administrative Agent has received any such direction, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Lenders.
Section 8.6 Credit Decision; Disclosure of Information by Administrative
Agent. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to
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it, and that no act by the Administrative Agent hereafter taken, including any
consent to and acceptance of any assignment or review of the affairs of any
Borrower or any Affiliate thereof, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender as to any
matter, including whether Agent-Related Persons have disclosed material
information in their possession. Each Lender acknowledges that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of each Borrower,
and all applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to a Borrower hereunder. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of each Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any Borrower or any of its Affiliates which may
come into the possession of any Agent-Related Person.
Section 8.7 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of the Borrowers and without limiting the obligation of the Borrowers to
do so), pro rata, and hold harmless each Agent-Related Person from and against
any and all Indemnified Liabilities incurred by it; provided, however, that no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person's own gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of the
applicable Required Lenders shall be deemed to constitute gross negligence or
willful misconduct for purposes of this Section. Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Borrowers. The undertaking in this Section shall survive
termination of the Aggregate Commitments, the payment of all other Obligations
and the resignation of the Administrative Agent.
Section 8.8 Administrative Agent in its Individual Capacity. CUSA and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity
43
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with each Borrower and its Affiliates
as though CUSA were not the Administrative Agent hereunder and without notice to
or consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, CUSA or its Affiliates may receive information regarding a Borrower
or any of its Affiliates (including information that may be subject to
confidentiality obligations in favor of a Borrower or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, CUSA shall have the
same rights and powers under this Agreement as any other Lender and may exercise
such rights and powers as though it were not the Administrative Agent, and the
terms "Lender" and "Lenders" include CUSA in its individual capacity.
Section 8.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor administrative agent for the Lenders,
which successor administrative agent shall be consented to by the Borrowers in
writing at all times other than during the existence of an Event of Default
(which consent of the Borrowers shall not be unreasonably withheld). If no
successor administrative agent is so appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrowers, a successor
administrative agent from among the Lenders. Upon the acceptance of its
appointment as successor administrative agent hereunder, the Person acting as
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent, and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article VIII and Sections 9.4 and
9.5 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
Section 8.10 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to a Borrower, the Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on such Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans and all other Obligations that
are owing by such Borrower and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable
44
compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders and the Administrative Agent under Section 2.8 and
Section 9.4) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Section 2.8 and Section 9.4. Nothing contained herein
shall be deemed to authorize the Administrative Agent to authorize or consent to
or accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize the Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.
Section 8.11 Other Agents, Arrangers and Managers. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent," "documentation agent," "co-agent," "book manager,"
"lead manager," "arranger," "lead arranger" or "co-arranger" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than, in the case of such Lenders, those applicable to all Lenders as
such. Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments, Etc. Except as otherwise set forth in the last
sentence of this Section, no amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by any
Borrower therefrom, shall be effective unless in writing signed by the
applicable Required Lenders and the applicable Borrower, and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.1(a) without the written
consent of each Lender;
45
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 7.1) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan, or any fees or other amounts payable hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the applicable Required Lenders
shall be necessary to amend the definition of "Default Rate" or to waive any
obligation of any Borrower to pay interest at the Default Rate;
(e) change Section 2.12 or Section 7.2 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each affected Lender;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; and (ii) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, any
amendment or waiver of any term of any Money Market Loan (except the increase in
the principal amount thereof or the extension of any Interest Period until after
the Revolving Maturity Date) made by a Lender hereunder shall be effective if
signed by such Lender and the applicable Borrower and acknowledged by the
Administrative Agent and (ii) no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that
the Commitment of such Lender may not be increased or extended without the
consent of such Lender.
Section 9.2 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to a Borrower or the Administrative Agent, to the address,
facsimile number, electronic mail address or telephone number specified
for such Person on
46
Schedule 9.2 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a
notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such
party in a notice to the Borrowers and the Administrative Agent.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; provided, however, that notices and other communications
to the Administrative Agent pursuant to Article II shall not be effective until
actually received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on the Borrowers,
the Administrative Agent and the Lenders. The Borrowers may also require that
any such documents and signatures be confirmed by a manually-signed original
thereof; provided, however, that the failure to request or deliver the same
shall not limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 6.1, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices) purportedly given by or on behalf of a
Responsible Officer of a Borrower or any other Person designated in writing by a
Responsible Officer of a Borrower to the Administrative Agent even if (i) such
notices were not otherwise made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrowers shall indemnify each Agent-Related Person
and each Lender from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
a Responsible Officer of a Borrower or any other Person designated in writing by
a Responsible Officer of a Borrower to the Administrative Agent. All telephonic
notices to and other communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
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Section 9.3 No Waiver; Cumulative Remedies. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by Law.
Section 9.4 Attorney Costs, Expenses and Taxes. The Borrowers agree (a) to
pay or reimburse the Administrative Agent for all costs and expenses incurred in
connection with the development, preparation, negotiation and execution of this
Agreement and the other Loan Documents and any amendment, waiver, consent or
other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse the
Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search and filing charges and
fees and taxes related thereto, and other out-of-pocket expenses incurred by the
Administrative Agent and the cost of independent public accountants and other
outside experts retained by the Administrative Agent or any Lender. All amounts
due under this Section 9.4 shall be payable within ten Business Days after
delivery to the Borrowers of a certificate setting forth in reasonable detail
the basis for the amounts demanded. The agreements in this Section shall survive
the termination of the Aggregate Commitments and repayment of all other
Obligations.
Section 9.5 Indemnification by the Borrowers. Whether or not the
transactions contemplated hereby are consummated, the Borrowers shall indemnify
and hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses and disbursements (including Attorney Costs)
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against any such Indemnitee in any way relating to or arising out
of or in connection with (a) the execution, delivery, enforcement, performance
or administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby or
the consummation of the transactions contemplated thereby, (b) any Commitment,
Loan or the use or proposed use of the proceeds therefrom, or (c) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits,
48
costs, expenses or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee. No Indemnitee shall be
liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Agreement, nor shall any Indemnitee
have any liability for any indirect or consequential damages relating to this
Agreement or any other Loan Document or arising out of its activities in
connection herewith or therewith (whether before or after the Closing Date). All
amounts due under this Section 9.5 shall be payable within 10 Business Days
after the Borrowers receive demand therefor setting forth in reasonable detail
the basis for such demand. The agreements in this Section shall survive the
resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations. Notwithstanding the foregoing, the
Borrowers shall not, in connection with any single proceeding or series of
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm or internal legal department (in
addition to any local counsel) for all Indemnitees, such firm or internal legal
department to be selected by the Administrative Agent; provided that if an
Indemnitee shall have reasonably concluded that (i) there may be legal defenses
available to it which are different from or additional to those available to
other Indemnitees and may conflict therewith or (ii) the representation of such
Indemnitee and the other Indemnitees by the same counsel would otherwise be
inappropriate under applicable principles of professional responsibility, such
Indemnitee shall have the right to select and retain separate counsel to
represent such Indemnitee in connection with such proceeding(s) at the expense
of the Borrowers.
Section 9.6 Payments Set Aside. To the extent that any payment by or on
behalf of any Borrower is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises any right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
Section 9.7 Successors and Assigns..
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that neither Borrower may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with
49
the provisions of subsection (d) of this Section, or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f)
of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Committed Loans at the time owing to
it); provided that (i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Committed Loans at
the time owing to it or in the case of an assignment to a Lender or an Affiliate
of a Lender or an Approved Fund (as defined in subsection (f) of this Section)
with respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Committed Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if "Trade Date"
is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $10,000,000 unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing in respect of such Borrower,
the applicable Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); (ii) each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Committed Loans or the
Commitment assigned; (iii) any assignment of a Commitment must be approved by
the Administrative Agent (which approval shall not be unreasonably withheld or
delayed) unless the Person that is the proposed assignee is itself a Lender or
an Affiliate of a Lender (whether or not the proposed assignee would otherwise
qualify as an Eligible Assignee); and (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500. Subject to acceptance
and recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.1, 3.4, 3.5, 9.4 and 9.5 with respect to facts and
circumstances occurring prior to the effective date of such assignment). Upon
request, each Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this Section.
If the Eligible Assignee is required to deliver documents pursuant to Section
9.15, it shall deliver those documents to the applicable Borrower and the
Administrative Agent in accordance with Section 9.15.
50
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrowers, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans owing to each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrowers and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to, any
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person or a Borrower or any of the Borrowers' Affiliates) (each,
a "Participant") in all or a portion of such Lender's rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the
Loans owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to Section 9.1 that
directly affects such Participant. Subject to subsection (e) of this Section,
the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 3.1, 3.4 and 3.5 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of this Section.
To the extent permitted by Law, each Participant also shall be entitled to the
benefits of Section 9.9 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.12 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.1 or Section 3.4 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant
unless the sale of the participation to such Participant is made with the
Borrowers' prior written consent. A Participant shall not be entitled to the
benefits of Section 3.1 unless the Borrowers are notified of the participation
sold to such Participant and such Participant agrees, for the benefit of each
Borrower, to comply with Section 9.15 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Note, if
any) to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its
51
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and (ii) unless an Event of
Default with respect to such Borrower has occurred and is continuing, the
applicable Borrower (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, "Eligible Assignee"
shall not include a Borrower or any of the Borrowers' Affiliates.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course
of its business.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.
Section 9.8 Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent requested
by any regulatory authority; (c) to the extent required by applicable Laws or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of a Borrower; (g) with the consent of the
applicable Borrower; (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent or any Lender on a
52
nonconfidential basis from a source other than a Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization. In addition, the Administrative Agent and the Lenders may disclose
the existence of this Agreement and information about this Agreement to market
data collectors, similar service providers to the lending industry, and service
providers to the Administrative Agent and the Lenders in connection with the
administration and management of this Agreement, the other Loan Documents, the
Commitments, and the Loans. For the purposes of this Section, "Information"
means all information received from a Borrower relating to such Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by such Borrower; provided that, in the case of information received
from a Borrower after the date hereof, such information is clearly identified in
writing at the time of delivery as confidential. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Notwithstanding anything herein to the contrary, "Information" shall not
include, and the Administrative Agent and each Lender may disclose without
limitation of any kind, any information with respect to the "tax treatment" and
"tax structure" (in each case, within the meaning of Treasury Regulation Section
1.6011-4) that are provided to the Administrative Agent or such Lender relating
to such tax treatment and tax structure; provided that with respect to any
document or similar item that in either case contains information concerning the
tax treatment or tax structure of the transaction as well as other information,
this sentence shall only apply to such portions of the document or similar item
that relate to the tax treatment or tax structure of the Loans and transactions
contemplated hereby.
Section 9.9 Set-off. Upon the occurrence and during the continuance of any
Event of Default with respect to a Borrower, nothing in this Agreement shall
preclude any Lender, at any time and from time to time, from exercising any
right of set off, counterclaim, or other rights it may have otherwise than under
this Agreement and or from applying amounts realized against any and all
Obligations owing by such Borrower to such Lender hereunder or under any other
Loan Document, now or hereafter existing. Each Lender agrees promptly to notify
the applicable Borrower and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
Section 9.10 Interest Rate Limitation. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the applicable Borrower.
Section 9.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 9.12 Integration. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
53
Section 9.13 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Borrowing and shall continue in full force and
effect as long as any Loan or any other Obligation hereunder shall remain unpaid
or unsatisfied or any Letter of Credit shall remain outstanding.
Section 9.14 Severability. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 9.15 Tax Forms.
(a) (i) Each Tranche A Lender that is not a "United States person" within
the meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall
deliver to the Administrative Agent, prior to becoming a party to this Agreement
(or upon accepting an assignment of an interest herein), two duly signed
completed copies of either IRS Form W-8BEN or any successor thereto (relating to
such Foreign Lender and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Foreign Lender by TMCC
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Foreign Lender by TMCC pursuant to
this Agreement) or such other evidence satisfactory to TMCC and the
Administrative Agent that such Foreign Lender is entitled to an exemption from,
or reduction of, U.S. withholding tax, including any exemption pursuant to
Section 881(c) of the Code. Thereafter and from time to time, each such Foreign
Lender shall (A) promptly submit to the Administrative Agent such additional
duly completed and signed copies of one of such forms (or such successor forms
as shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States Laws and
regulations to avoid, or such evidence as is satisfactory to TMCC and the
Administrative Agent of any available exemption from or reduction of, United
States withholding taxes in respect of all payments to be made to such Foreign
Lender by TMCC pursuant to this Agreement, (B) promptly notify the
Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (C) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment of such Lender,
and as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws that TMCC make any deduction
or withholding for taxes from amounts payable to such Foreign Lender.
54
(ii) As of the date that each Lender becomes a Tranche B Lender under this
Agreement, each such Lender represents and warrants to the Administrative Agent
and each Borrower that it is an Exempt Lender and agrees that, if Puerto Rico or
United States taxing authorities at any time after the date of this Agreement
require that such Lender deliver any certificate, statement or form as a
condition to exemption from, or reduction of, withholding taxes under the Puerto
Rico Code or the Code on any payments by TCPR to such Lender under this
Agreement, such Lender shall deliver such certificate, statement or form to the
Administrative Agent prior to becoming a party to this Agreement (or upon
accepting an assignment of an interest herein). Thereafter and from time to
time, each such Lender shall (A) promptly submit to the Administrative Agent
such duly completed and signed certificates, statements or forms as shall be
adopted from time to time by the relevant Puerto Rico or United States taxing
authorities and such other evidence as is satisfactory to TCPR and the
Administrative Agent of any available exemption from, or reduction of, Puerto
Rico and United States withholding taxes in respect of all payments to be made
to such Lender by TCPR pursuant to this Agreement, (B) promptly notify the
Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (C) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment of such Lender,
and as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws that TCPR make any deduction
or withholding for taxes from amounts payable to such Lender.
(iii) Each Lender, to the extent it does not act or ceases to act
for its own account with respect to any portion of any sums paid or
payable to such Lender under any of the Loan Documents (for example, in
the case of a typical participation by such Lender), shall deliver to the
Administrative Agent on the date when such Lender ceases to act for its
own account with respect to any portion of any such sums paid or payable,
and at such other times as may be necessary in the determination of the
Administrative Agent (in the reasonable exercise of its discretion), (A)
two duly signed completed copies of the certificates, statements or forms
required to be provided by such Lender as set forth above, to establish
the portion of any such sums paid or payable with respect to which such
Lender acts for its own account that is not, in the case of a Tranche A
Lender, subject to United States withholding tax or, in the case of a
Tranche B Lender, subject to Puerto Rico or United States withholding tax
and (B) any information such Lender chooses to transmit with such
certificates, statements or forms, and any other certificate or statement
of exemption required under the Code or, in the case of a Tranche B
Lender, Puerto Rico, to establish that such Lender is not acting for its
own account with respect to a portion of any such sums payable to such
Lender.
(iv) No Borrower shall be required to pay any additional amount to
any Lender under Section 3.1 (A) with respect to any Taxes required to be
deducted or withheld on the basis of the information, certificates or
statements of exemption such Lender transmits pursuant to this Section
9.15(a) or (B) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 9.15(a); provided that if such Lender shall
have satisfied the requirement of this Section 9.15(a) on the date such
Lender became a Lender or ceased to act for its own account with respect
to any payment under any of the Loan Documents, nothing in this Section
9.15(a) shall relieve such Borrower of its obligation
55
to pay any amounts pursuant to Section 3.1 in the event that, as a result
of any change in any applicable Law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration
or application thereof, such Lender is no longer properly entitled to
deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of
which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding at a
reduced rate.
(v) The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under any of
the Loan Documents with respect to which a Borrower is not required to pay
additional amounts under this Section 9.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
Section 9.16 Replacement of Lenders. Under any circumstances set forth
herein providing that a Borrower shall have the right to replace a Lender as a
party to this Agreement, such Borrower may, upon notice to such Lender and the
Administrative Agent, replace such Lender by causing such Lender to assign its
Commitment (with the assignment fee to be paid by such Borrower in such
instance) pursuant to Section 9.7(b) to one or more other Lenders or Eligible
Assignees procured by such Borrower; provided, however, that if such Borrower
elects to exercise such rights with respect to any Lender pursuant to Section
3.6(c), it shall be obligated to replace all Lenders that have made similar
requests for compensation pursuant to Section 3.1 or 3.4. The applicable
Borrower shall (y) pay in full all principal, interest, fees and other amounts
owing to such Lender through the date of replacement (including any amounts
payable pursuant to Section 3.5) and (z) release such Lender from its
obligations under the Loan Documents. Any Lender being replaced shall execute
and deliver an Assignment and Assumption with respect to such Lender's
Commitment and outstanding Loans.
Section 9.17 Governing Law.
56
(a) THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, the LAW OF THE STATE OF NEW YORK applicable to agreements made
and to be performed entirely within such State; PROVIDED THAT THE ADMINISTRATIVE
Agent AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN THE COUNTY OF NEW YORK IN XXX XXXX XX XXX XXXX XX XX XXX XXXXXX
XXXXXX FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH BORROWER, THE ADMINISTRATIVE Agent AND EACH LENDER
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH BORROWER, THE ADMINISTRATIVE Agent AND EACH
LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH
BORROWER, THE ADMINISTRATIVE Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE.
Section 9.18 Patriot Act Notice. Each Lender that is subject to the Act
(as hereinafter defined) and the Agent (for itself and not on behalf of any
Lender) hereby notifies each Loan Party that, pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies such Loan Party, which information includes the name and address of
such Loan Party and other information that will allow such Lender or the Agent,
as applicable, to identify such Loan Party in accordance with the Act.
Section 9.19 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
57
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
TOYOTA CREDIT DE PUERTO RICO CORP.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
1
CITICORP USA, INC., as
Administrative Agent and a Lender
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
2
BANK OF AMERICA, N.A., as
Syndication Agent and a Lender
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
3
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as Documentation Agent and a Lender
By: /s/ Xxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxx Xxxx
Title: Deputy General Manager
4
BNP PARIBAS, as
Documentation Agent and a Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
5
JPMORGAN CHASE BANK, as
Documentation Agent and a Lender
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
6
DEUTSCHE BANK AG NEW YORK BRANCH, as
Senior Managing Agent and a Lender
By: /s/ Xxxx-Xxxxx Xxxxxx
------------------------------------
Name: Xxxx-Xxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
7
HSBC BANK USA, as
Senior Managing Agent and a Lender
By: /s/ Xxxxx XxXxxxx
------------------------------------
Name: Xxxxx XxXxxxx
Title: Vice President
8
SUMITOMO MITSUI BANKING CORPORATION, as
Senior Managing Agent and a Lender
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: General Manager
9
UFJ BANK LIMITED, as
Senior Managing Agent and a Lender
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
10
XXXXXXX XXXXX BANK USA, as
Managing Agent and a Lender
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Director
11
XXXXXX XXXXXXX BANK, as
Managing Agent and a Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
12
UBS LOAN FINANCE LLC, as
Managing Agent and a Lender
By: /s/ Xxxxxxx Saint
------------------------------------
Name: Xxxxxxx Saint
Title: Director
By: /s/ Xxxxxxxx X'Xxxxx
------------------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Director
13
ABN AMRO BANK N.V., as
Managing Agent and a Lender
By: /s/ Xxxxxx Noique
------------------------------------
Name: Xxxxxx Noique
Title: Director
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
14
BARCLAYS BANK PLC, as
Managing Agent and a Lender
By: /s/ Xxxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Associate Director
15
XXXXXX BROTHERS BANK FSB, as
Managing Agent and a Lender
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
16
ING LUXEMBOURG S.A., as
Managing Agent and a Lender
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Head of Corporate & Institutional Banking
By: /s/ Alexandre Cayphas
------------------------------------
Name: Alexandre Cayphas
Title: Manager, Corporate & Institutional Banking
17
DRESDNER BANK AG, NEW YORK BRANCH, as
Managing Agent and a Lender
By: /s/ X. Xxxxxx Xxxxxxxxx
------------------------------------
Name: X. Xxxxxx Beaudouin
Title: Director
By: /s/ Xxxx van der Griend
------------------------------------
Name: Xxxx van der Griend
Title: Managing Director
18
CREDIT SUISSE FIRST BOSTON, as
Managing Agent and a Lender
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Associate
19
ROYAL BANK OF SCOTLAND PLC, as
Managing Agent and a Lender
By: /s/ Xxxxx Xxxxxx-XxXxxxx
------------------------------------
Name: Xxxxx Xxxxxx-XxXxxxx
Title: Senior Vice President
20
DANSKE BANK, as
Managing Agent and a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
By: /s/ Xxxx X. X'Xxxxx
------------------------------------
Name: Xxxx X. X'Xxxxx
Title: Assistant General Manager
21
ROYAL BANK OF CANADA, as
Managing Agent and a Lender
By: /s/ Xxxxxx Xxx
------------------------------------
Name: Xxxxxx Xxx
Title: Authorized Signatory
22
MIZUHO CORPORATE BANK LTD., as
Co-Agent and a Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Joint General Manager
23
BANCO SANTANDER, as
Co-Agent and a Lender
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
24
THE BANK OF NEW YORK,
as Lender
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
25
MELLON BANK, N.A.,
as Lender
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Vice President
26
PNC BANK, N.A.
as Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
00
XXX XXXX XX XXXX XXXXXX,
as Lender
By: /s/ X. Xxxx
------------------------------------
Name: X. Xxxx
Title: Senior Manager
28
COMERICA BANK,
as Lender
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: First Vice President
29
FIFTH THIRD BANK,
as Lender
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: AVP-Relationship Manager
30
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxx XxXxx
------------------------------------
Name: Xxxx XxXxx
Title: Director
31
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
Lender Tranche A Tranche B Pro Rata Pro Rata
Commitment Commitment Share of Share of
Tranche A Tranche B
------------------------------------------------------------------------------------------------------------------
Citicorp USA, Inc. $273,125,000.00 $18,541,666.65 6.94% 6.94%
Bank of America, N.A. $273,125,000.00 $18,541,666.65 6.94% 6.94%
The Bank of Tokyo-Mitsubishi, $202,892,857.13 $13,773,809.52 5.16% 5.16%
Ltd.
BNP Paribas $202,892,857.13 $13,773,809.52 5.16% 5.16%
JPMorgan Chase Bank $202,892,857.13 $13,773,809.52 5.16% 5.16%
Deutsche Bank AG New York Branch $171,678,571.43 $11,654,761.90 4.37% 4.37%
HSBC Bank USA $171,678,571.43 $11,654,761.90 4.37% 4.37%
Sumitomo Mitsui Banking $171,678,571.43 $11,654,761.90 4.37% 4.37%
Corporation
UFJ Bank Limited $171,678,571.43 $11,654,761.90 4.37% 4.37%
ABN AMRO Bank N.V. $124,857,142.86 $8,476,190.48 3.17% 3.17%
Barclays Bank $124,857,142.86 $8,476,190.48 3.17% 3.17%
Credit Suisse First Boston $124,857,142.86 $8,476,190.48 3.17% 3.17%
Danske Bank $124,857,142.86 $8,476,190.48 3.17% 3.17%
Dresdner Bank AG, New York Branch $124,857,142.86 $8,476,190.48 3.17% 3.17%
ING Luxembourg S.A. $124,857,142.86 $8,476,190.48 3.17% 3.17%
Xxxxxx Brothers Bank FSB $124,857,142.86 $8,476,190.48 3.17% 3.17%
Xxxxxxx Xxxxx Bank USA $124,857,142.86 $8,476,190.48 3.17% 3.17%
Mizuho Corporate Bank Ltd. $124,857,142.86 $8,476,190.48 3.17% 3.17%
Xxxxxx Xxxxxxx Bank $124,857,142.86 $8,476,190.48 3.17% 3.17%
Royal Bank of Canada $124,857,142.86 $8,476,190.48 3.17% 3.17%
1
Royal Bank of Scotland PLC $124,857,142.86 $8,476,190.48 3.17% 3.17%
UBS Loan Finance LLC $124,857,142.86 $8,476,190.48 3.17% 3.17%
Banco Santander Central Hispano, $93,642,857.14 $6,357,142.86 2.39% 2.39%
Xxx Xxxx Xxxxxx
Xxx Xxxx xx Xxxx Xxxxxx $62,428,571.43 $4,238,095.24 1.60% 1.60%
Comerica Bank $62,428,571.43 $4,238,095.24 1.60% 1.60%
Wachovia Bank, National $62,428,571.43 $4,238,095.24 1.60% 1.60%
Association
The Bank of New York $46,821,428.57 $3,178,571.43 1.19% 1.19%
Fifth Third Bank $46,821,428.57 $3,178,571.43 1.19% 1.19%
Mellon Bank, N.A. $46,821,428.57 $3,178,571.43 1.19% 1.19%
PNC Bank, N.A. $46,821,428.57 $3,178,571.43 1.19% 1.19%
Total $3,933,000,000.00 $267,000,000.00 100.00% 100.00%
2
SCHEDULE 9.2
ADMINISTRATIVE AGENT'S OFFICE,
certain ADDRESSES FOR NOTICES
BORROWER:
Toyota Motor Credit Corporation
Borrower's Address
(for all purposes)
Toyota Motor Credit Corporation
00000 Xxxxx Xxxxxxx Xxxxxx
P.O. Box 2991
Mail Stop NF-10
Torrance, Ca. 90509
Attention: Xxxx Xxxxxx, National Treasury Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(With a copy to):
Toyota Motor Credit Corporation
00000 Xxxxx Xxxxxxx Xxxxxx
P.O. Box 2991
Mail Stop NF-10
Torrance, Ca. 90509
Attention: Xxxxx Xxxxxx, Cash Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Toyota Credit de Puerto Rico Corp.
Borrower's Address
(for all purposes)
Toyota Credit de Puerto Rico Corp.
c/o Toyota Motor Credit Corporation
Attn: Treasury
00000 Xxxxx Xxxxxxx Xxxxxx
P.O. Box 2991
Mail Stop NF-10
Torrance, Ca. 90509
Attention: Xxxx Xxxxxx, National Treasury Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1
(With a copy to):
Toyota Motor Credit Corporation
00000 Xxxxx Xxxxxxx Xxxxxx
P.O. Box 2991
Mail Stop NF-10
Torrance, Ca. 90509
Attention: Xxxxx Xxxxxx, Cash Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ADMINISTRATIVE AGENT:
CITICORP USA, INC.
Administrative Agent's Office
(for Notices of Payments and Requests for Loans):
Citicorp USA, Inc.
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx
Attention:
Telephone: (302)
Facsimile: (212)
(for Payments):
(Other Notices as Administrative Agent):
2
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Citicorp USA, Inc., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Five Year Credit Agreement, dated as of
July 30, 2004 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as --------- therein defined), among Toyota Motor
Credit Corporation, a California corporation, Toyota Credit de Puerto Rico
Corp., a corporation organized under the laws of Puerto Rico, the Lenders from
time to time party thereto, Citicorp USA, Inc., as Administrative Agent,
Citigroup Global Markets Inc. and Banc of America Securities LLC, as Joint Lead
Arrangers and Joint Book Managers, Bank of America, N.A., as Syndication Agent,
and The Bank of Tokyo-Mitsubishi, Ltd. and JPMorgan Chase Bank, as Documentation
Agents.
The undersigned hereby requests (select one):
|_| A Borrowing of Committed Loans |_| A conversion or continuation of
Loans
1. On____________________________ (a Business Day).
2. In the amount of $____________________.
3. Comprised of_________________. [Type of Committed Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of months.
[The Committed Borrowing requested herein complies with the proviso to the
first sentence of Section 2.1[(a)][(b)] of the Agreement.]
[TOYOTA MOTOR CREDIT CORPORATION]
[TOYOTA CREDIT DE PUERTO RICO CORP.]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
A-1
Form of Committed Loan Notice
EXHIBIT B
FORM OF NOTE
__________, 2004
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to
pay, without setoff or counterclaim, to _____________________ or registered
assigns (the "Lender"), in accordance with the provisions of the Agreement (as
hereinafter defined), the principal amount of each Loan from time to time made
by the Lender to the Borrower under that certain Five Year Credit Agreement,
dated as of July 30, 2004 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Toyota Motor Credit
Corporation, a California corporation, Toyota Credit de Puerto Rico Corp., a
corporation organized under the laws of Puerto Rico, the Lenders from time to
time party thereto, Citicorp USA, Inc., as Administrative Agent, Citigroup
Global Markets Inc. and Banc of America Securities LLC, as Joint Lead Arrangers
and Joint Book Managers, Bank of America, N.A., as Syndication Agent, and The
Bank of Tokyo-Mitsubishi, Ltd. and JPMorgan Chase Bank, as Documentation Agents.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. All
payments of principal and interest shall be made to the Administrative Agent for
the account of the Lender in Dollars in immediately available funds at the
Administrative Agent's Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein. Upon the occurrence and continuation of one or
more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Loans and payments with respect thereto.
B-1
Form of Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
[TOYOTA MOTOR CREDIT CORPORATION]
[TOYOTA CREDIT DE PUERTO RICO CORP.]
By:
---------------------------------
Name:
-------------------------------
Title:
--------------------------------
B-2
Form of Note
LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of Outstanding
Principal or Principal
Type of Loan Amount of Loan End of Interest Interest Paid Balance This
Date Made Made Period This Date Date Notation Made By
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B-3
Form of Note
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
As required by Section 6.1(c) of the Five Year Credit Agreement, dated as
of July 30, 2004, among Toyota Motor Credit Corporation, a California
corporation, Toyota Credit de Puerto Rico Corp., a corporation organized under
the laws of Puerto Rico, the Lenders from time to time party thereto, Citicorp
USA, Inc., as Administrative Agent, Citigroup Global Markets Inc. and Banc of
America Securities LLC, as Joint Lead Arrangers and Joint Book Managers, Bank of
America, N.A., as Syndication Agent, and The Bank of Tokyo-Mitsubishi, Ltd. and
JPMorgan Chase Bank, as Documentation Agents (the "Agreement"), I,
__________________, do hereby certify that I am the chief financial officer of
[Toyota Motor Credit Corporation] [Toyota Credit de Puerto Rico Corp.] (the
"Company"), and further certify on behalf of the Company that, to the best of my
knowledge, no Default (as defined in the Agreement) under the Agreement exists
as of the date of this Certificate.
Certified this _____ day of ______________, 200_
__________________________________
Name: ___________________________
C-1
Form of Compliance Certificate
EXHIBIT D
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below and
(ii) to the extent permitted to be assigned under applicable Law, all claims,
suits, causes of action and any other right of the Assignor (in its capacity as
a Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at Law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund of [identify Lender]1]
3. Borrower(s): [Toyota Motor Credit Corporation][Toyota Credit
de Puerto Rico Corp.]
4. Administrative Agent: ______________________, as the administrative
agent under the Credit Agreement
5. Credit Agreement: Five Year Credit Agreement, dated as of July 30,
2004, among Toyota Motor Credit Corporation, a
California corporation, Toyota Credit de Puerto
Rico Corp., a corporation organized under the
laws of Puerto Rico, the Lenders from time to
time party thereto, Citicorp USA, Inc., as
Administrative Agent,
--------
(1) Select as applicable.
D-1
Assignment and Assumption
Citigroup Global Markets Inc. and Banc of
America Securities LLC, as Joint Lead Arrangers
and Joint Book Managers, Bank of America, N.A.,
as Syndication Agent, and The Bank of
Tokyo-Mitsubishi, Ltd. and JPMorgan Chase Bank,
as Documentation Agents.
6. Assigned Interest:(2)
-----------------------------------------------------------------------------------------------------------------------
Aggregate
Amount of Amount of Percentage
Tranche [A][B] Tranche [A][B] Assigned of
Facility Assigned: Commitment/Loans Commitment/Loans Tranche [A][B]
[Tranche A] [Tranche B] for all Lenders* Assigned* Commitment/Loans(3)
----------------------- --------------- -------- ----------------
-----------------------------------------------------------------------------------------------------------------------
Commitment/Committed Loans $________________ $________________ ______________%
being assigned
-----------------------------------------------------------------------------------------------------------------------
[7. Trade Date: __________________](4)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: _____________________________
Title:
---------------
* Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective
Date.
(2) The reference to "Loans" in the table should be used only if the Credit
Agreement provides for Term Loans.
(3) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
(4) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
D-2
Assignment and Assumption
[Consented to and](5) Accepted:
[NAME OF ADMINISTRATIVE AGENT], as
Administrative Agent
By: _________________________________
Title:
[Consented to:](6)
By: _________________________________
Title:
------------------------
(5) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
(6) To be added only if the consent of the applicable Borrower and/or other
parties is required by the terms of the Credit Agreement.
D-3
Assignment and Assumption
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
(FIVE YEAR CREDIT AGREEMENT, DATED AS OF JULY 30, 2004, AMONG TOYOTA MOTOR
CREDIT CORPORATION, A CALIFORNIA CORPORATION, TOYOTA CREDIT DE PUERTO RICO
CORP., A CORPORATION ORGANIZED UNDER THE LAWS OF PUERTO RICO, THE LENDERS FROM
TIME TO TIME PARTY THERETO, CITICORP USA, INC., AS ADMINISTRATIVE AGENT,
CITIGROUP GLOBAL MARKETS INC. AND BANC OF AMERICA SECURITIES LLC, AS JOINT LEAD
ARRANGERS AND JOINT BOOK MANAGERS, BANK OF AMERICA, N.A., AS SYNDICATION AGENT,
AND THE BANK OF TOKYO-MITSUBISHI, LTD. AND JPMORGAN CHASE BANK, AS DOCUMENTATION
AGENTS.)
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim
created by the Assignor and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and
to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of any Borrower or any of its Affiliates or any other Person obligated
in respect of any Loan Document or (iv) the performance or observance by any
Borrower or any of its Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.1 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) attached hereto is any
withholding tax documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at
D-4
Assignment and Assumption
the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned interest (including
payments of principal, interest, fees and other amounts) to the Assignee whether
such amounts have accrued prior to or on or after the Effective Date. The
Assignor and the Assignee shall make all appropriate adjustments in payments by
the Administrative Agent for periods prior to the Effective Date or with respect
to the making of this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the Law
of the State of New York.
D-5
Assignment and Assumption
EXHIBIT E
FORM OF MONEY MARKET QUOTE REQUEST
Date: ___________, _____
To: Citicorp USA, Inc., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Five Year Credit Agreement, dated as of
July 30, 2004 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Toyota Motor Credit
Corporation, a California corporation, Toyota Credit de Puerto Rico Corp., a
corporation organized under the laws of Puerto Rico, the Lenders from time to
time party thereto, Citicorp USA, Inc., as Administrative Agent, Citigroup
Global Markets Inc. and Banc of America Securities LLC, as Joint Lead Arrangers
and Joint Book Managers, Bank of America, N.A., as Syndication Agent, and The
Bank of Tokyo-Mitsubishi, Ltd. and JPMorgan Chase Bank, as Documentation Agents.
The undersigned hereby requests Money Market Quotes for (select one):
|_| Money Market Absolute Rate for |_| Money Market Margin for
Money Market Absolute Rate Loans Money Market LIBOR Loans
1. On ____________________ (a Business Day).
2. In the amount of $ ___________________.
3. For an Interest Period of _____________.
The Money Market Loans for which Money Market Quotes are requested herein
would comply with the proviso to the first sentence of Section 2.3(a) of the
Agreement.
[TOYOTA MOTOR CREDIT CORPORATION]
[TOYOTA CREDIT DE PUERTO RICO CORP.]
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
E-1
Form of Money Market Quote Request
EXHIBIT F
FORM OF INVITATION FOR MONEY MARKET QUOTES
Date: ___________, _____
To: Lenders party to the Agreement (as defined below)
Ladies and Gentlemen:
Reference is made to that certain Five Year Credit Agreement, dated as of
July 30, 2004 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Toyota Motor Credit
Corporation, a California corporation, Toyota Credit de Puerto Rico Corp., a
corporation organized under the laws of Puerto Rico, the Lenders from time to
time party thereto, Citicorp USA, Inc., as Administrative Agent, Citigroup
Global Markets Inc. and Banc of America Securities LLC, as Joint Lead Arrangers
and Joint Book Managers, Bank of America, N.A., as Syndication Agent, and The
Bank of Tokyo-Mitsubishi, Ltd. and JPMorgan Chase Bank, as Documentation Agents.
On behalf of [TMCC][TCPR], you are invited to submit Money Market Quotes
for (select one):
|_| Money Market Absolute Rate for |_| Money Market Margin for
Money Market Absolute Rate Loans Money Market LIBOR Loans
1. On _______________________________________ (a Business Day).
2. In the amount of $___________________________.
3. For an Interest Period of __________________.
Please respond to this invitation by no later than [1 :00 p.m.] [9:00
a.m.] on [date].
CITICORP USA, INC., as Administrative Agent
By:
---------------------------------------------
Authorized Officer
F-1
Form of Invitation for Money Market Quotes
Exhibit G
FORM OF MONEY MARKET QUOTE
Date: ___________, _____
To: Citicorp USA, Inc., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Five Year Credit Agreement, dated as of
July 30, 2004 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Toyota Motor Credit
Corporation, a California corporation, Toyota Credit de Puerto Rico Corp., a
corporation organized under the laws of Puerto Rico, the Lenders from time to
time party thereto, Citicorp USA, Inc., as Administrative Agent, Citigroup
Global Markets Inc. and Banc of America Securities LLC, as Joint Lead Arrangers
and Joint Book Managers, Bank of America, N.A., as Syndication Agent, and The
Bank of Tokyo-Mitsubishi, Ltd. and JPMorgan Chase Bank, as Documentation Agents.
In response to your invitation on behalf of [TMCC][TCPR] dated
______________, 20__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Lender: ____________________
2. Person to contact at Quoting Lender: Name: ____________________
Tel: ____________________
Fax: ____________________
email: ____________________
3. Date of Borrowing: ___________________(7)
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest [Money Market [Absolute Rate(11)]
Amount(8) Period(9) Margin](10)
$
$
-----------------
(7) As specified in the related Invitation.
(8) Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the
individual offer exceeds the amount the Lender is willing to lend. Bids
must be made for $5,000,000 or larger multiple of $1,000,000.
(9) Not less than one month or not less than 14 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period
(10) Margin over or under the Eurodollar Rate determined for the applicable
Interest Period. Specify percentage (to the nearest 1/100,000 of 1%) and
specify whether "PLUS" or "MINUS."
(11) Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
G-1
Form of Money Market Quote
The Money Market Loans for which Money Market Quotes are submitted herein
comply with the requirements of the Agreement.
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Agreement,
irrevocably obligates us to make the Money Market Loan(s) for which any offer(s)
are accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated: By:
-------------------------- --------------------------------
Authorized Officer
G-2
Form of Money Market Quote
Exhibit H
FORM OF OPINION OF COUNSEL FOR THE BORROWERS
To the Lenders and the Administrative Agent
Referred to Below
c/o Citicorp USA, Inc., as Administrative Agent
Xxx Xxxxx Xxx
Xxx Xxxxxx, XX 00000
Re: Credit Agreement
Ladies and Gentlemen:
I and my staff have acted as counsel for Toyota Motor Credit Corporation
and Toyota Credit de Puerto Rico Corp. (the "Borrowers") in connection with the
Five Year Credit Agreement, dated as of July 30, 2004, among Toyota Motor Credit
Corporation, a California corporation, Toyota Credit de Puerto Rico Corp., a
corporation organized under the laws of Puerto Rico, the Lenders from time to
time party thereto, Citicorp USA, Inc., as Administrative Agent, Citigroup
Global Markets Inc. and Banc of America Securities LLC, as Joint Lead Arrangers
and Joint Book Managers, Bank of America, N.A., as Syndication Agent, and The
Bank of Tokyo-Mitsubishi, Ltd. and JPMorgan Chase Bank, as Documentation Agents.
Terms defined in the Credit Agreement are used herein as therein defined. This
opinion is being rendered to you pursuant to Section 4.1(a)(v) of the Credit
Agreement.
I am General Counsel of TMCC and as such I, or members of my staff, have
participated in the negotiation of the Credit Agreement. I, or members of my
staff, have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and Law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing and in reliance thereon, I am of the
opinion, subject to the assumptions and limitations set forth herein, that:
1. TMCC is a corporation duly incorporated, validly existing and in good
standing under the Laws of California, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
2. The execution, delivery and performance by each Borrower of the Credit
Agreement and the Notes to be delivered by it do not contravene, or constitute a
default under, any debt instrument or any other material agreement, judgment,
injunction, order, decree or other instrument binding upon such Borrower. As to
debt instruments or agreements which, by their terms, are or may be governed by
the Law of a jurisdiction
H-1
Form of Opinion of Counsel to the Borrower
other than California, I have assumed that such debt instruments and agreements
are governed by the Law of California for purposes of the opinion expressed in
this paragraph.
3. The Credit Agreement and the Notes are governed, by their terms, by New
York Law. I express no opinion on the enforceability of the Loan Documents under
New York Law. If California Law were to apply, the Credit Agreement would
constitute a valid and binding agreement of each Borrower and each Note would
constitute a valid and binding obligation of the Borrower party thereto, in each
case enforceable in accordance with its terms.
4. There is no action, suit or proceeding pending against, or to the best
of my knowledge threatened against or affecting, any Borrower before any court
or arbitrator or any Governmental Authority, in which there is a reasonable
possibility of an adverse decision which could materially adversely affect the
business, financial position or results of operations of such Borrower or which
in any manner draws into question the validity of the Credit Agreement or the
Notes.
5. Each of TMCC's corporate Subsidiaries is a corporation validly existing
and in good standing under the Laws of its jurisdiction of incorporation, and
has all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
The opinion set forth in paragraph 3 is subject to: (i) the effect of
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar Laws of general application relating to or affecting
the enforcement of creditors' rights generally, (ii) limitations on the remedy
of specific performance and injunctive and other forms of equitable relief due
to the possible existence of equitable defenses or due to the discretion of the
court before which any proceeding therefor may be brought, (iii) the
unenforceability under certain circumstances of provisions to the effect that
failure to exercise, or delay in exercising, rights or remedies will not operate
as a waiver of any such right or remedy, (iv) limitations based upon statutes or
upon public policy limiting a Person's right to waive the benefits of statutory
provisions or of a common law right, (v) limitations on the right of a creditor
to exercise remedies or impose penalties for late payments or other defaults by
a borrower, if it is determined that (a) either the defaults are not material,
such penalties bear no reasonable relation to the damage suffered by the
creditor as a result of such delinquencies or defaults, or it cannot be
demonstrated that the enforcement of such restrictions or burdens is reasonably
necessary for the protection of the creditor, or (b) the creditor's enforcement
of such covenants or provisions under the circumstances would violate the
creditor's implied covenant of good faith and fair dealing, (vi) the
unenforceability under certain circumstances, under California or federal Law or
court decisions, of provisions releasing a party from, or indemnifying a party
against, liability for its own wrongful or grossly negligent acts or where such
release or indemnification is contrary to public policy, (vii) the effect of
California Law, which provides that a court may refuse to enforce, or may limit
the application of, a contract or any clause of a contract which the court finds
to have been unconscionable at the time it was made, or an unfair portion of an
adhesion contract, (viii) the effect of California Law,
H-2
Form of Opinion of Counsel to the Borrower
which provides that when a contract permits one party to a contract to recover
attorneys' fees, the prevailing party in any action to enforce any provision of
the contract shall be entitled to recover its reasonable attorneys' fees, (ix)
compliance with, and limitations imposed by, procedural requirements of state
Law, including the provisions of the California Commercial Code relating to the
exercise of remedies by a creditor; and (x) limitations under California Law as
to the right to retain or collect unearned interest. The foregoing limitations,
however, do not render the Credit Agreement and the Notes invalid as a whole,
and there exists, in the Credit Agreement and the Notes or pursuant to
applicable Law, legally adequate remedies for the realization of the principal
benefits intended to be provided by the Credit Agreement and the Notes.
I am a member of the Bar of the State of California and the foregoing
opinion is limited to the Laws of the State of California and the federal Laws
of the United States of America. In giving the foregoing opinion, (i) I express
no opinion as to the effect (if any) of any Law of any jurisdiction (except the
State of California) in which any Lender is located which limits the rate of
interest that such Lender may charge or collect; (ii) I have assumed, without
independent investigation, that the execution, delivery and performance by the
Lenders of the Credit Agreement are within the Lenders' powers and have been
duly authorized by all necessary action; and (iii) I have assumed, without
independent investigation, that each of the Lenders is exempt from the
limitations on interest contained in Article XV, Section 1 of the Constitution
of the State of California.
The references in this opinion to facts based on the "best of my
knowledge" refer only to my own actual, present knowledge and the knowledge of
the members of my staff who have given substantive consideration to the matters
referred to herein.
This opinion is furnished by me as General Counsel for TMCC to you in
connection with the Credit Agreement, is solely for your benefit and may not be
relied upon by any other person, other than an Eligible Assignee or Participant
pursuant to Section 9.7 of the Credit Agreement, without my prior written
consent. Notwithstanding the foregoing grant of permission to Eligible Assignees
to rely on this opinion, I express no opinion with respect to the effect of any
such Eligible Assignee failing to comply with any legal requirement in order for
it to enforce the Credit Agreement. I express no opinion as to enforceability of
the Loan Documents by a Participant.
Respectfully submitted,
Xxxx Xxxxxxxx
General Counsel
H-3
Form of Opinion of Counsel to the Borrower
EXHIBIT I
FORM OF OPINION Of XXXXXXXXXXX XXXXXX & XXXXXXX LLP
To the Lenders and the Administrative Agent
Referred to Below
c/o Citicorp USA, Inc., as Administrative Agent
Xxx Xxxxx Xxx
Xxx Xxxxxx, XX 00000
Re: Credit Agreement
Ladies and Gentlemen:
We have acted as special Commonwealth of Puerto Rico counsel for Citicorp
USA, Inc., as Administrative Agent (the "Administrative Agent"), in connection
with the Five Year Credit Agreement, dated as of July 30, 2004, among Toyota
Motor Credit Corporation, a California corporation, Toyota Credit de Puerto Rico
Corp., a corporation organized under the laws of Puerto Rico (the "Borrower"),
the Lenders from time to time party thereto, Citicorp USA, Inc., as
Administrative Agent, Citigroup Global Markets Inc. and Banc of America
Securities LLC, as Joint Lead Arrangers and Joint Book Managers, Bank of
America, N.A., as Syndication Agent, and The Bank of Tokyo-Mitsubishi, Ltd. and
JPMorgan Chase Bank, as Documentation Agents. Terms defined in the Credit
Agreement are used herein as therein defined. This opinion is being rendered to
you pursuant to Section 4.1(a)(vi) of the Credit Agreement.
We have participated in the negotiation of the Credit Agreement and have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and Law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing and in reliance thereon, we are of the
opinion, subject to the assumptions and limitations set forth herein, that:
1. The Borrower is a corporation duly incorporated, validly existing and
in good standing under the Laws of Puerto Rico, and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any Governmental Authority and do not contravene, or
constitute a default
I-1
Form of Opinion of Xxxxxxxxxxx Xxxxxx & Xxxxxxx LLP
under, any provision of applicable Law or of the articles of incorporation or
bylaws of the Borrower.
3. The Credit Agreement and the Notes are governed, by their terms, by New
York Law. We express no opinion on the enforceability of the Loan Documents
under New York Law. If the Law of Puerto Rico were to apply, the Credit
Agreement would constitute a valid and binding agreement of the Borrower and
each Note would constitute a valid and binding obligation of the Borrower, in
each case enforceable in accordance with its terms.
The opinion set forth in paragraph 3 is subject to: (i) the effect of
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar Laws of general application relating to or affecting
the enforcement of creditors' rights generally, (ii) limitations on the remedy
of specific performance and injunctive and other forms of equitable relief due
to the possible existence of equitable defenses or due to the discretion of the
court before which any proceeding therefor may be brought, (iii) the
unenforceability under certain circumstances of provisions to the effect that
failure to exercise, or delay in exercising, rights or remedies will not operate
as a waiver of any such right or remedy, (iv) limitations based upon statutes or
upon public policy limiting a Person's right to waive the benefits of statutory
provisions or of a common law right, (v) limitations on the right of a creditor
to exercise remedies or impose penalties for late payments or other defaults by
a borrower, if it is determined that (a) either the defaults are not material,
such penalties bear no reasonable relation to the damage suffered by the
creditor as a result of such delinquencies or defaults, or it cannot be
demonstrated that the enforcement of such restrictions or burdens is reasonably
necessary for the protection of the creditor, or (b) the creditor's enforcement
of such covenants or provisions under the circumstances would violate the
creditor's implied covenant of good faith and fair dealing, (vi) the
unenforceability under certain circumstances, under the Law of Puerto Rico or
federal Law or court decisions, of provisions releasing a party from, or
indemnifying a party against, liability for its own wrongful or negligent acts
or where such release or indemnification is contrary to public policy, (vii) the
effect of the Law of Puerto Rico, which provides that a court may refuse to
enforce, or may limit the application of, a contract or any clause of a contract
which the court finds to have been unconscionable at the time it was made, or an
unfair portion of an adhesion contract, (viii) compliance with, and limitations
imposed by, procedural requirements of the Law of Puerto Rico; and (ix)
limitations under the Law of Puerto Rico as to the right to retain or collect
unearned interest. The foregoing limitations, however, do not render the Credit
Agreement and the Notes invalid as a whole, and there exists, in the Credit
Agreement and the Notes or pursuant to applicable Law, legally adequate remedies
for the realization of the principal benefits intended to be provided by the
Credit Agreement and the Notes.
We are members of the Bar of the Commonwealth of Puerto Rico and the
foregoing opinion is limited to the Laws of Puerto Rico and the federal Laws of
the United States of America. In giving the foregoing opinion, (i) we express no
opinion as to the effect (if any) of any Law of any jurisdiction (except Puerto
Rico) in which any Lender is located which limits the rate of interest that such
Lender may charge or collect; and (ii) we have assumed, without independent
investigation, that the execution, delivery
I-2
Form of Opinion of Xxxxxxxxxxx Xxxxxx & Xxxxxxx LLP
and performance by the Lenders of the Credit Agreement and the Notes are within
the Lenders' powers and have been duly authorized by all necessary action..
This opinion is furnished to you in connection with the Credit Agreement,
is solely for your benefit and may not be relied upon by, nor may copies be
delivered to, any other person, other than an Eligible Assignee or Participant
pursuant to Section 9.7 of the Credit Agreement, without our prior written
consent. Notwithstanding the foregoing grant of permission to Eligible Assignees
to rely on this opinion, we express no opinion with respect to the effect of any
such Eligible Assignee failing to comply with any legal requirement in order for
it to enforce the Credit Agreement.
Respectfully submitted,
I-3
Form of Opinion of Xxxxxxxxxxx Xxxxxx & Xxxxxxx LLP
EXHIBIT J
FORM OF OPINION OF SHEARMAN & STERLING LLP
__________, 2004
To the Initial Lenders party to the Credit
Agreement referred to below and to
Citicorp USA, Inc., as Administrative Agent
Toyota Motor Credit Corporation
Toyota Credit De Puerto Rico Corp.
Ladies and Gentlemen:
We have acted as counsel to Citicorp USA, Inc., as Administrative
Agent (the "Agent"), in connection with the Five Year Credit Agreement, dated as
of July 30, 2004 (the "Credit Agreement"), among Toyota Motor Credit
Corporation, a California corporation ("TMCC"), Toyota Credit De Puerto Rico
Corp., a corporation organized under the laws of the Commonwealth of Puerto Rico
("TCPR" and, together with TMCC, the "Borrowers"), and each of you. Unless
otherwise defined herein, terms defined in the Credit Agreement are used herein
as therein defined.
In that connection, we have reviewed originals or copies of the
following documents:
(a) The Credit Agreement.
(b) The Notes executed by the Borrowers and delivered on the date
hereof.
The documents described in the foregoing clauses (a) and (b) are collectively
referred to herein as the "Opinion Documents".
We have also reviewed originals or copies of such other agreements
and documents as we have deemed necessary as a basis for the opinion expressed
below.
In our review of the Opinion Documents and other documents, we have
assumed:
(A) The genuineness of all signatures.
(B) The authenticity of the originals of the documents
submitted to us.
(C) The conformity to authentic originals of any documents
submitted to us as copies.
J-1
Opinion of Shearman & Sterling LLP
(D) As to matters of fact, the truthfulness of the
representations made in the Credit Agreement.
(E) That the Credit Agreement is the legal, valid and
binding obligation of each party thereto, other than the
Borrowers, enforceable against each such party in
accordance with its terms.
(F) That:
(1) Each Borrower is an entity duly organized and
validly existing under the laws of the jurisdiction of its
organization.
(2) Each Borrower has full power to execute, deliver and
perform, and has duly executed and delivered, the Opinion
Documents to which it is a party.
(3) The execution, delivery and performance by each
Borrower of the Opinion Documents to which it is a party have
been duly authorized by all necessary action (corporate or
otherwise) and do not:
(a) contravene its certificate or articles of
incorporation, by-laws or other organizational
documents;
(b) except with respect to Generally Applicable
Law, violate any law, rule or regulation applicable to
it; or
(c) result in any conflict with or breach of any
agreement or document binding on it of which any
addressee hereof has knowledge, has received notice or
has reason to know.
(4) Except with respect to Generally Applicable Law, no
authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body
or (to the extent the same is required under any agreement or
document binding on it of which an addressee hereof has
knowledge, has received notice or has reason to know) any
other third party is required for the due execution, delivery
or performance by each Borrower of any Opinion Document or, if
any such authorization, approval, action, notice or filing is
required, it has been duly obtained, taken, given or made and
is in full force and effect.
We have not independently established the validity of the foregoing
assumptions.
"Generally Applicable Law" means the federal law of the United
States of America, and the law of the State of New York (including the rules or
regulations promulgated thereunder or pursuant thereto), that a New York lawyer
exercising customary professional
J-2
Opinion of Shearman & Sterling LLP
diligence would reasonably be expected to recognize as being applicable to
either Borrower, the Opinion Documents or the transactions governed by the
Opinion Documents. Without limiting the generality of the foregoing definition
of Generally Applicable Law, the term "Generally Applicable Law" does not
include any law, rule or regulation that is applicable to either Borrower, the
Opinion Documents or such transactions solely because such law, rule or
regulation is part of a regulatory regime applicable to the specific assets or
business of any party to any of the Opinion Documents or any of its affiliates.
Based upon the foregoing and upon such other investigation as we
have deemed necessary and subject to the qualifications set forth below, we are
of the opinion that each Opinion Document is the legal, valid and binding
obligation of each Borrower that is a party thereto, enforceable against such
Borrower in accordance with its terms.
Our opinion expressed above is subject to the following
qualifications:
(a) Our opinion is subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including without limitation
all laws relating to fraudulent transfers).
(b) Our opinion is subject to the effect of general principles
of equity, including without limitation concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(c) We express no opinion with respect to the enforceability
of indemnification provisions, or of release or exculpation
provisions, contained in the Opinion Documents to the extent that
enforcement thereof is contrary to public policy regarding the
indemnification against or release or exculpation of criminal
violations, intentional harm or violations of securities laws.
(d) Our opinion is limited to Generally Applicable Law.
A copy of this opinion letter may be delivered by any of you to any
person that becomes a Lender in accordance with the provisions of the Credit
Agreement. Any such person may rely on the opinion expressed above as if this
opinion letter were addressed and delivered to such person on the date hereof.
This opinion letter is rendered to you in connection with the
transactions contemplated by the Opinion Documents. This opinion letter may not
be relied upon by you or any person entitled to rely on this opinion pursuant to
the preceding paragraph for any other purpose without our prior written consent.
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Opinion of Shearman & Sterling LLP
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you of any development or circumstance of
any kind, including any change of law or fact, that may occur after the date of
this opinion letter that might affect the opinion expressed herein.
Very truly yours,
WEH:SLH
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Opinion of Shearman & Sterling LLP
