EXHIBIT 10.5 (f)
CONFORMED COPY
THIRD AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT
THIRD AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT dated as of
September 17, 1999 (this "Agreement") among TOYOTA MOTOR CREDIT CORPORATION,
the BANKS listed on the signature pages hereof and BANK OF AMERICA, N.A., as
Agent.
W I T N E S S E T H:
WHEREAS, the parties hereto have heretofore entered into a Three-Year
Credit Agreement dated as of September 29, 1994, as amended as of
September 28, 1995, amended and restated as of September 24, 1996 and
September 23, 1997 and amended as of March 19, 1999 (collectively the
"Existing Agreement"); and
WHEREAS, ▇▇▇▇▇▇ Guaranty Trust Company of New York desires to resign as
Agent under the Existing Agreement and the Banks desire to appoint Bank of
America, N.A. (and Bank of America N.A. desires to accept such appointment)
to succeed to and become vested with all the rights and duties of the
retiring Agent under the Existing Agreement effective upon the Effective Date
(as defined below); and
WHEREAS, no Loans are outstanding under the Existing Agreement at the
date hereof; and
WHEREAS, the parties hereto desire to amend the Existing Agreement as set
forth herein and to restate the Existing Agreement in its entirety to read as
set forth in the Existing Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Existing Agreement
shall have the meaning assigned to such term in the Existing Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other
similar reference contained in the Existing Agreement shall from and after
the date hereof refer to the Existing Agreement as amended hereby.
Section 2. Replacement of the Agent. By executing this Agreement, effective
on the Effective Date, ▇▇▇▇▇▇ Guaranty Trust Company of New York shall resign
as Agent under the Existing Agreement, each of the Banks shall appoint Bank
of America, N.A., as Agent, and Bank of America, N.A. shall thereupon succeed
to and become vested with all the rights and duties of ▇▇▇▇▇▇ Guaranty Trust
Company of New York as Agent under the Existing Agreement, and ▇▇▇▇▇▇
Guaranty Trust Company of New York shall be discharged from its duties and
obligations as Agent thereunder. ▇▇▇▇▇▇ Guaranty Trust Company of New York
shall continue as a Bank party to the Agreement after its resignation as
Agent
Section 3. Amendment of the Existing Agreement
(a) The name "▇▇▇▇▇▇ Guaranty Trust Company of New York" appearing in
the definitions of "Agent", "CD Reference Banks", "Euro-Dollar Reference
Banks" and "Federal Funds Rate" is changed to "Bank of America, N.A.".
(b) The definition of "Domestic Business Day" is amended to read in its
entirety as follows:
"Domestic Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in New York City or San Francisco are authorized by
law to close.
(c) The definition of "Prime Rate" is amended to read in its entirety as
follows:
"Prime Rate" means the rate of interest in effect for such day as
publicly announced from time to time by Bank of America, N.A. as its "prime
rate." Such rate is a rate set by Bank of America, N.A. based upon various
factors including Bank of America, N.A.'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 Bank of America, N.A. shall take
effect at the opening of business on the day specified in the public
announcement of such change.
(d) Sections 7.1, 7.2, 7.3, 7.6, 7.7 and 7.8 are amended in their
entirety to read as follows:
Section 7.1 Appointment and Authorization. Each Bank irrevocably appoints
and authorizes the Agent to take such action as Agent on its behalf and to
exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as
are reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere in this Agreement, the Agent shall not have or
be deemed to have any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or otherwise exist against the Agent.
Without limiting the generality of the foregoing sentence, the use of the
term "agent" in this Agreement with reference to the 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 7.2 Agent and Affiliates. Bank of America, N.A. shall have the same
rights and powers under this Agreement as any other Bank and may exercise or
refrain from exercising the same as though it were not the Agent, and Bank of
America, N.A. and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary
or affiliate of the Borrower as if it were not the Agent hereunder. The
Banks acknowledge that, pursuant to such activities, Bank of America, N.A. or
its affiliates may receive information regarding the Borrower or its
affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or such affiliate) and acknowledge that
the Agent shall be under no obligation to provide such information to them.
Section 7.3 Action by Agent. The obligations of the Agent hereunder are only
those expressly set forth herein. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or under the
Notes unless it shall first receive such advice or concurrence of the
Required Banks as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Required Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
Section 7.6 Indemnification. Each Bank shall, ratably in accordance with its
Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by
the Borrower) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct
provided, however, that no action taken in accordance with the directions of
the Required Banks shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section) that such indemnitees may suffer or
incur in connection with this Agreement, the Existing Agreement, the
Commitments, the use or contemplated use of the proceeds of any Loan, the
relationship of the Borrower, the Agent and the Banks under this Agreement or
any action taken or omitted by such indemnitees hereunder.
Section 7.7 Credit Decision; Disclosure of Information by Agent. Each Bank
acknowledges that it has, independently and without reliance upon the Agent
or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking any action under
this Agreement.
Except for notices, reports and other documents expressly herein required to
be furnished to the Banks by the Agent herein, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Borrower or any of
its Subsidiaries which may come into the possession of the Agent.
Section 7.8 Successor Agent. The Agent may resign at any time by giving
notice thereof to the Banks and the Borrower. Upon any such resignation, the
Required Banks shall have the right to appoint a successor Agent with the
written consent of the Borrower, which shall not be unreasonably withheld.
If no successor Agent shall have been so appointed by the Required Banks with
the consent of the Borrower, and shall have accepted such appointment, within
30 days after the retiring Agent gives notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be a commercial bank organized or licensed under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $1,000,000,000. Upon the acceptance of its appointment
as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
(e) The following provisions are added to Article 7 of the Existing
Agreement as Sections 7.10 and 7.11:
Section 7.10 Delegation of Duties. The Agent may execute any of its duties
under this Agreement by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects with reasonable
care.
Section 7.11 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and
fees required to be paid to the Agent for the account of the Banks, unless
Agent shall have received written notice from a Bank or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". The Agent will notify the
Banks and the Borrower of its receipt of any such notice. The Agent shall
take such action with respect to such Default or Event of Default as may be
requested by the Required Banks in accordance with Article 6; provided,
however, that unless and until the Agent has received any such request, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable or in the best interest of the Agent or the Banks.
Section 4. Governing Law This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
Section 5 Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective on the date (the "Effective Date")
when the Agent shall have received (i) duly executed counterparts hereof
signed by the Borrower and the Banks (or, in the case of any party as to
which an executed counterpart shall not have been received, the Agent shall
have received telegraphic, telex or other written confirmation from such
party of execution of a counterpart hereof by such party) and (ii) an opinion
of the General Counsel of the Borrower (or such other counsel for the
Borrower as may be acceptable to the Agent) substantially in the form of
Exhibit E to the Existing Agreement with reference to this Agreement and the
Existing Agreement as amended and restated hereby.
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President and
General Manager
Commitments
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$100,000,000 BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
$100,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
$100,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.
LOS ANGELES BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Deputy General Manager
$100,000,000 THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
$100,000,000 CITICORP USA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
$100,000,000 CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
$40,000,000 ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Group Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
$40,000,000 PARIBAS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Head, NY Credit Risk
Financial Markets
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior Credit Officer
$40,000,000 BARCLAYS BANK PLC
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Director
$40,000,000 DEUTSCHE BANK AG, NEW YORK BRANCH
/CAYMAN ISLAND BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
$40,000,000 THE SAKURA BANK, LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Joint General Manager
$40,000,000 THE SANWA BANK, LIMITED,
LOS ANGELES BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Senior Vice President &
Deputy General Manager
$40,000,000 THE TOKAI BANK, LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Joint General Manager
$80,000,000 UBS AG, STAMFORD BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Director
By: /s/ ▇▇▇▇▇▇▇ Saint
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Title: Associate Director
Loan Portfolio Support, US
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Total Commitments
$960,000,000
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BANK OF AMERICA, N.A., as Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as retiring Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President