FIVE YEAR CREDIT AGREEMENT Dated as of March 29, 2006 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 CITIGROUP GLOBAL...
EXECUTION
COPY
FIVE
YEAR CREDIT AGREEMENT
Dated
as
of March 29, 2006
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
____________________________________________
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
______________________________________________
THE
BANK OF TOKYO-MITSUBISHI, LTD.,
BNP
PARIBAS
and
JPMORGAN
CHASE BANK, N.A.,
as
Documentation Agents
|
TABLE
OF CONTENTS
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Page
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1
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Section 1.1
Definitions
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1
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Section 1.2
Other
Interpretive Provisions
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14
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ARTICLE
II THE CREDITS
|
15
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|
Section
2.1 Committed
Loans
|
15
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|
Section
2.2 Borrowings,
Conversions and Continuations of Committed
Loans
|
15
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Section 2.3
Money
Market Loans
|
17
|
|
Section
2.4 Prepayments
|
19
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Section 2.5
Termination
or Reduction of Commitments
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20
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Section
2.6 Repayment
of Loans
|
20
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|
Section
2.7 Interest
|
21
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|
Section
2.8 Fees
|
21
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Section
2.9 Computation
of Interest and Fees
|
22
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|
Section
2.10 Evidence
of Debt
|
22
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|
Section
2.11 Payments
Generally
|
23
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|
Section
2.12 Sharing
of Payments
|
24
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|
Section
2.13 Increase
in Commitments
|
25
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|
ARTICLE
III TAXES,
YIELD PROTECTION AND ILLEGALITY
|
26
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|
Section
3.1 Taxes
|
26
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|
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
|
i
|
Section
3.6 Matters
Applicable to all Requests for Compensation
|
29
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|
ARTICLE
IV CONDITIONS
|
30
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Section
4.1 Effectiveness
|
30
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|
Section
4.2 Conditions
to all Loans
|
31
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|
ARTICLE
V REPRESENTATIONS AND WARRANTIES
|
32
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|
Section 5.1
Corporate
Existence and Power
|
32
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|
Section 5.2
Corporate
and Governmental Authorization: No Contravention
|
32
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|
Section 5.3
Binding
Effect
|
32
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|
Section 5.4
Financial
Information
|
32
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|
Section 5.5
Litigation
|
33
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|
Section 5.6
Compliance
with ERISA
|
33
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|
Section 5.7
Taxes
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33
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|
Section 5.8
Subsidiaries
|
33
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|
Section 5.9
Not
an Investment Company
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34
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|
Section 5.10
Disclosure
|
34
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ARTICLE
VI COVENANTS
|
34
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|
Section 6.1
Information
|
34
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|
Section 6.2
Maintenance
of Property; Insurance
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35
|
|
Section 6.3
Conduct
of Business and Maintenance of Existence
|
36
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|
Section 6.4
Compliance
with Laws
|
36
|
|
Section 6.5
Negative
Pledge
|
36
|
|
Section 6.6
Consolidations
|
38
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|
Section 6.7
Use
of Proceeds
|
39
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|
ARTICLE
VII DEFAULTS
|
39
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|
Section 7.1
Events
of Default
|
39
|
ii
|
Section
7.2 Application
of Funds
|
40
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|
ARTICLE
VIII THE ADMINISTRATIVE AGENT
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41
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ARTICLE
VIII THE ADMINISTRATIVE AGENT
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41
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Section
8.1 Appointment
and Authorization of Administrative Agent
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41
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|
Section
8.2 Delegation
of Duties
|
41
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|
Section
8.3 Liability
of Administrative Agent
|
42
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|
Section
8.4 Reliance
by Administrative Agent
|
42
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|
Section
8.5 Notice
of Default
|
42
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|
Section
8.6 Credit
Decision; Disclosure of Information by Administrative
Agent
|
43
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|
Section
8.7 Indemnification
of Administrative Agent
|
43
|
|
Section
8.8 Administrative
Agent in its Individual Capacity
|
44
|
|
Section
8.9 Successor
Administrative Agent
|
44
|
|
Section
8.10 Administrative
Agent May File Proofs of Claim
|
45
|
|
Section
8.11 Other
Agents, Arrangers and Managers
|
45
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|
ARTICLE
IX MISCELLANEOUS
|
46
|
|
Section
9.1 Amendments,
Etc
|
46
|
|
Section
9.2 Notices
and Other Communications; Facsimile Copies
|
47
|
|
Section
9.3 No
Waiver; Cumulative Remedies
|
48
|
|
Section
9.4 Attorney
Costs, Expenses and Taxes
|
48
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|
Section
9.5 Indemnification
by the Borrowers
|
48
|
|
Section
9.6 Payments
Set Aside
|
49
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|
Section
9.7 Successors
and Assigns
|
50
|
|
Section
9.8 Confidentiality
|
52
|
|
Section
9.9 Set-off
|
53
|
|
Section
9.10 Interest
Rate Limitation
|
53
|
iii
|
Section
9.11 Counterparts
|
54
|
|
Section
9.12 Integration
|
54
|
|
Section
9.13
Survival of Representations and Warranties
|
54
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|
Section
9.14 Severability
|
54
|
|
Section
9.15 Tax
Forms
|
54
|
|
Section
9.16 Replacement
of Lenders
|
56
|
|
Section
9.17 Governing
Law
|
57
|
|
Section
9.18 Patriot
Act Notice
|
57
|
|
Section
9.19 Waiver
of Right to Trial by Jury
|
58
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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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Exhibit
J Form
of
Opinion of Shearman & Sterling LLP
iv
FIVE
YEAR CREDIT AGREEMENT
THIS
FIVE
YEAR CREDIT AGREEMENT (this "Agreement") dated as of March 29, 2006, 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, N.A., 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.
1
"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:
|
Applicable
Rate
|
||||
|
Pricing
Level
|
Debt
Ratings
S&P/Moody's
|
Facility
Fee
|
Eurodollar
Rate +
|
Base
Rate +
|
|
1
|
≥AA-
or Aa3
|
0.040%
|
0.11%
|
0.00%
|
|
2
|
Lower
than Level 1 but at least A or A2
|
0.070%
|
0.18%
|
0.00%
|
|
3
|
Lower
than Level 2 or unrated
|
0.090%
|
0.21%
|
0.00%
|
"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,
2
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, 2005 (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, 2005 (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,
3
and
San
▇▇▇▇, 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
4
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, and such failure is continuing, or (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, and such failure is continuing, unless the subject of
a
good faith dispute.
"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
1.00 minus Eurodollar Reserve Percentage
Where,
5
"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 (iii) 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
6
reason
of
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 February 21, 2006 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
7
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.
8
"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.
"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
▇▇▇▇▇'▇ 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.
9
"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.
10
"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 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 Lenders and (c) in all other cases, each
of
the Required Tranche Lenders determined under clauses (a) and (b) of this
definition.
"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
March 29, 2011.
"S&P"
means
Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ 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
12
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.
13
"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
consistent
basis as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements.
14
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 Borrowing made by the Tranche A Lenders,
(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 Tranche A 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 Borrowing made by the Tranche B Lenders,
(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 Tranche B 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
15
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 integral
multiples of $1,000,000 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
16
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 U.S. 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.
17
(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
$1,000,000, (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
18
(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
19
(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.
20
(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
22
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
23
(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
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 (x) in the case of the Tranche A Commitments,
$7,100,000,000 and (y) in the case of the Tranche B Commitments, $450,000,000.
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.
25
(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
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.
26
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
(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 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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) on
the
Closing Date, the following statements shall be true and the Administrative
Agent shall have received for the account of each Lender a certificate of
a
Responsible Officer of each Borrower, stating that:
(A)
the
representations and warranties contained in Article V hereof are correct
on and as of the Closing Date; and
(B) no event has occurred and is continuing that constitutes a Default;
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 the Credit
Agreement (Five Year Facility) dated as of July 30, 2004, among TMCC, TCPR,
the
lenders parties thereto, Bank of America, N.A., as syndication agent, The Bank
of Tokyo-Mitsubishi, Ltd., BNP Paribas and JPMorgan Chase Bank, N.A., as
documentation agents, and Citicorp USA, Inc., as administrative agent for the
lenders. Each of the Lenders that is a party to the foregoing credit agreement
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
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).
31
(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 by 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.
32
(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 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;
34
(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 any one 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 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;
36
(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;
(i) for the avoidance of doubt, any lien or security interest granted or arising in connection with a bona fide securitization transaction by which such Borrower sells vehicle loan receivables, vehicle installment contracts, vehicle leases (together with or without the underlying vehicles), and/or other receivables or assets, the records relating thereto and the proceeds, rights and benefits accruing to it thereunder (the “Securitized Assets”) and underlying vehicles if not included with the Securitized Assets to a trust or entity established for the purpose of, among other things, purchasing, holding or owning Securitized Assets; and
(j) 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 (i), 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.
37
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
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.
38
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.
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
6.1(d),
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;
39
(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 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;
40
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;
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.
41
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 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, facsimile 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.
42
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 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; provided,
further,
that
such Indemnified Liability was incurred by or asserted against such
Agent-Related Person acting as or for the Administrative Agent in connection
with such capacity. 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.
43
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 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.
44
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 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.
45
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;
(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 that has a commitment under the affected Tranche;
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.
46
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
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.
47
(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.
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
48
liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, 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.
49
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 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 or a larger multiple of $1,000,000 in excess
thereof 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
50
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.
(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.
51
(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 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 or
self-regulatory body; (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
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
52
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.
53
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.
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
54
Office)
to avoid any requirement of applicable Laws that TMCC make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(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.
55
(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 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 and if any Lender is
a
Defaulting Lender or has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding, 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
56
execute
and deliver an Assignment and Assumption with respect to such Lender's
Commitment and outstanding Loans.
Section
9.17 Governing
Law.
(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 ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ SITTING IN THE COUNTY
OF
NEW YORK IN ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 Borrower 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 Borrower, which information
includes the name and address of such Borrower and other information that will
allow such Lender or the Agent, as applicable, to identify such Borrower in
accordance with the Act.
57
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.
58
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/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
President and Chief Executive Officer
TOYOTA
CREDIT DE PUERTO RICO CORP.
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
President and Chief Executive Officer
1
CITICORP
USA, INC.,
as
Administrative
Agent and a Lender
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President
2
BANK
OF AMERICA, N.A., as
Syndication
Agent and a Lender
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Director
3
THE
BANK OF TOKYO-MITSUBISHI UFJ
LTD.
LOS ANGELES BRANCH,
as
a
Lender
By:
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
General Manager
4
BNP
PARIBAS,
as
a
Lender
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Vice President
By:
/s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Director
5
JPMORGAN
CHASE BANK, N.A.
as
a
Lender
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Managing Director
6
DEUTSCHE
BANK AG NEW YORK BRANCH,
as
a
Lender
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Director
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Vice President
7
HSBC
BANK USA, N.A.,
as
a
Lender
By:
/s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Senior Vice President
8
SUMITOMO
MITSUI BANKING CORPORATION,
as
a
Lender
By:
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
General Manager
9
BARCLAYS
BANK PLC,
as
a
Lender
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Associate Director
10
CREDIT
SUISSE NEW YORK BRANCH,
as
a
Lender
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Director
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title:
Associate
11
DRESDNER
BANK AG NEW YORK BRANCH AND GRAND CAYMAN BRANCH,
as
a
Lender
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Director
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
12
▇▇▇▇▇▇▇
▇▇▇▇▇ BANK USA,
as
a
Lender
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇
Title:
Director
13
MIZUHO
CORPORATE BANK LTD.,
as
a
Lender
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Joint General Manager
14
▇▇▇▇▇▇
▇▇▇▇▇▇▇ BANK,
as
a
Lender
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
15
THE
ROYAL BANK OF SCOTLAND PLC,
as
a
Lender
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Managing Director
16
UBS
LOAN FINANCE LLC,
as
a
Lender
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇
Title:
Associate Director
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Director
17
WACHOVIA
BANK NATIONAL ASSOCIATION,
as
a
Lender
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Vice President
18
ROYAL
BANK OF CANADA,
as
a
Lender
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇
Title:
Authorized Signatory
19
TORONTO-DOMINION
(TEXAS) LLC,
as
a
Lender
By:
/s/
▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Authorized Signatory
20
ING
LUXEMBOURG S.A.,
as
a
Lender
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Director
By:
/s/
Philippe Gusbin
Title:
Director
21
BANCO
SANTANDER CENTRAL HISPANO, S.A.,
as
a
Lender
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Executive Director
By:
/s/
L.
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Title:
Vice President
22
MELLON
BANK, N.A.,
as
a
Lender
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Vice president
▇▇
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
as
a
Lender
By:
/s/
▇.
▇▇▇▇
Title:
Senior Manager
24
COMERICA
BANK,
as
a
Lender
By:
/s/
▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
25
FIFTH
THIRD BANK,
as
a
Lender
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Relationship Manager
26
▇▇▇▇▇▇
▇▇▇▇▇▇ FINANCING, INC.,
as
a
Lender
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
27
PNC
BANK, NATIONAL ASSOCIATION,
as
Syndication Agent and a Lender
By:
/s/
▇▇▇▇▇ ▇. McLinder
Title:
Vice President
28
THE
BANK OF NEW YORK,
as
a
Lender
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President
29
BANCO
POPULAR DE PUERTO RICO,
as
a
Lender
By:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title:
Vice President
30
SCHEDULE
2.1
COMMITMENTS
AND
PRO RATA SHARES
|
Lender
|
Tranche
A Commitment
|
Tranche
B Commitment
|
Pro
Rata Share of Tranche A
|
Pro
Rata Share of Tranche B
|
|
Citicorp
USA, Inc.
|
$494,857,758.62
|
$30,142,241.38
|
9.05%
|
9.05%
|
|
Bank
of America, N.A.
|
$494,857,758.62
|
$30,142,241.38
|
9.05%
|
9.05%
|
|
The
Bank of Tokyo-Mitsubishi UFJ, Ltd. Los Angeles Branch
|
$345,614,942.53
|
$21,051,724.14
|
6.32%
|
6.32%
|
|
BNP
Paribas
|
$345,614,942.53
|
$21,051,724.14
|
6.32%
|
6.32%
|
|
JPMorgan
Chase Bank, N.A.
|
$345,614,942.53
|
$21,051,724.14
|
6.32%
|
6.32%
|
|
Deutsche
Bank AG New York Branch
|
$267,066,091.95
|
$16,267,241.38
|
4.89%
|
4.89%
|
|
HSBC
Bank USA, N.A.
|
$267,066,091.95
|
$16,267,241.38
|
4.89%
|
4.89%
|
|
Sumitomo
Mitsui Banking Corporation
|
$267,066,091.95
|
$16,267,241.38
|
4.89%
|
4.89%
|
|
Barclays
Bank PLC
|
$172,807,471.26
|
$10,525,862.07
|
3.16%
|
3.16%
|
|
Credit
Suisse New York Branch
|
$172,807,471.26
|
$10,525,862.07
|
3.16%
|
3.16%
|
|
Dresdner
Bank AG New York Branch and Grand Cayman Branch
|
$172,807,471.26
|
$10,525,862.07
|
3.16%
|
3.16%
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇ Bank USA
|
$172,807,471.26
|
$10,525,862.07
|
3.16%
|
3.16%
|
|
Mizuho
Corporate Bank Ltd.
|
$172,807,471.26
|
$10,525,862.07
|
3.16%
|
3.16%
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Bank
|
$172,807,471.26
|
$10,525,862.07
|
3.16%
|
3.16%
|
|
The
Royal Bank of Scotland plc
|
$172,807,471.26
|
$10,525,862.07
|
3.16%
|
3.16%
|
|
UBS
Loan Finance LLC
|
$172,807,471.26
|
$10,525,862.07
|
3.16%
|
3.16%
|
|
Wachovia
Bank National Association
|
$172,807,471.26
|
$10,525,862.07
|
3.16%
|
3.16%
|
|
Royal
Bank of Canada
|
$157,097,701.15
|
$9,568,965.52
|
2.87%
|
2.87%
|
|
Toronto-Dominion
(Texas) LLC
|
$157,097,701.15
|
$9,568,965.52
|
2.87%
|
2.87%
|
|
ING
Luxembourg S.A.
|
$125,678,160.92
|
$7,655,172.41
|
2.30%
|
2.30%
|
|
Banco
Santander Central Hispano, S.A.
|
$94,258,620.69
|
$5,741,379.69
|
1.72%
|
1.72%
|
|
Mellon
Bank, N.A.
|
$94,258,620.69
|
$5,741,379.69
|
1.72%
|
1.72%
|
|
The
Bank of Nova Scotia
|
$94,258,620.69
|
$5,741,379.69
|
1.72%
|
1.72%
|
|
Comerica
Bank
|
$62,839,080.46
|
$3,827,586.21
|
1.15%
|
1.15%
|
|
Fifth
Third Bank
|
$62,839,080.46
|
$3,827,586.21
|
1.15%
|
1.15%
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Financing, Inc.
|
$62,839,080.46
|
$3,827,586.21
|
1.15%
|
1.15%
|
|
PNC
Bank, National Association
|
$62,839,080.46
|
$3,827,586.21
|
1.15%
|
1.15%
|
|
The
Bank of New York
|
$62,839,080.46
|
$3,827,586.21
|
1.15%
|
1.15%
|
|
Banco
Popular de Puerto Rico
|
$47,129,310.34
|
$2,870,689.66
|
0.86%
|
1.15%
|
1
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
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box
2991
Mail
Stop
NF-10
Torrance,
Ca. 90509
Attention:
▇▇▇▇ ▇▇▇▇▇▇, National Treasury Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
(With
a copy to):
Toyota
Motor Credit Corporation
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box
2991
Mail
Stop
NF-10
Torrance,
Ca. 90509
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Cash Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box
2991
Mail
Stop
NF-10
Torrance,
Ca. 90509
Attention:
▇▇▇▇ ▇▇▇▇▇▇, National Treasury Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
1
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
(With
a copy to):
Toyota
Motor Credit Corporation
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box
2991
Mail
Stop
NF-10
Torrance,
Ca. 90509
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Cash Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
ADMINISTRATIVE
AGENT:
CITICORP
USA, INC.
Administrative
Agent's
Office
(for
Notices of Payments and Requests for Loans):
Citicorp
USA, Inc.
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
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 March 29, 2006
(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, N.A., 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:
Form
of
Committed Loan Notice
A-1
EXHIBIT
B
FORM
OF NOTE
__________,
2006
FOR
VALUE
RECEIVED, the undersigned (the "Borrower"),
hereby promises to pay, without setoff or counterclaim, to _____________________
or to its order (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 March 29,
2006 (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, N.A., 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.
Form
of
Note
B-1
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:
Form
of
Note
B-2
LOANS
AND PAYMENTS WITH RESPECT THERETO
|
Date
|
Type
of Loan Made
|
Amount
of Loan Made
|
End
of Interest Period
|
Amount
of Principal or Interest Paid This Date
|
Outstanding
Principal Balance This Date
|
Notation
Made By
|
Form
of
Note
B-3
EXHIBIT
C
FORM
OF COMPLIANCE CERTIFICATE
As
required by Section
6.1(c)
of the
Five Year Credit Agreement, dated as of March 29, 2006, 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, N.A., 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:
___________________________________
Form
of
Compliance Certificate
C-1
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 March 29, 2006, 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.
Assignment
and Assumption
D-1
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, N.A, as Documentation Agents.
6.
Assigned Interest
2:
|
Facility
Assigned:
Tranche
[A][B]
|
Aggregate
Amount
of
Tranche
[A][B] Commitment/Loans
for
all Lenders*
|
Amount
of
Tranche
[A][B]Commitment/Loans
Assigned*
|
Percentage
Assigned
of
Tranche
[A][B]Commitment/Loans3
|
|
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.
Assignment
and Assumption
D-2
[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.
Assignment
and Assumption
D-3
ANNEX
1 TO ASSIGNMENT AND ASSUMPTION
(FIVE
YEAR CREDIT AGREEMENT, DATED AS OF MARCH 29, 2006, 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, N.A., 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
Assignment
and Assumption
D-4
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.
Assignment
and Assumption
D-5
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 March 29, 2006
(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, N.A., 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:
Form
of
Money Market Quote Request
E-1
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 March 29, 2006
(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, N.A., 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
Form
of
Invitation for Money Market Quotes
F-1
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 March 29, 2006
(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, N.A., 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.
Form
of
Money Market Quote
G-1
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
____________________________
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%).
Form
of
Money Market Quote
G-2
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
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 March 29, 2006, 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, N.A., 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
Form
of
Opinion of Counsel to the Borrower
H-1
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,
Form
of
Opinion of Counsel to the Borrower
H-2
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,
▇▇▇▇
▇▇▇▇▇▇▇▇
General
Counsel
Form
of
Opinion of Counsel to the Borrower
H-3
EXHIBIT
I
FORM
OF OPINION Of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
To
the
Lenders and the Administrative Agent
Referred
to Below
c/o
Citicorp USA, Inc., as Administrative Agent
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 March 29, 2006, 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, N.A., 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
Form
of
Opinion of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
I-1
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
Form
of
Opinion of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
I-2
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,
Form
of
Opinion of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
I-3
EXHIBIT J
FORM
OF OPINION OF SHEARMAN & STERLING LLP
__________,
2006
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 March 29, 2006
(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.
|
Opinion
of Shearman & Sterling LLP
J-1
| (C) |
The
conformity to authentic originals of any documents submitted to
us as
copies.
|
| (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.
Opinion
of Shearman & Sterling LLP
J-2
"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 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 any party to any of the Opinion
Documents or any of its affiliates due to the specific assets or business
of
such party or such affiliate.
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.
Opinion
of Shearman & Sterling LLP
J-3
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
Opinion
of Shearman & Sterling LLP
J-4