EXHIBIT D ASSIGNMENT AND ASSUMPTION
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 Finance (Netherlands) B.V.] [Toyota Motor Credit Corporation] [Toyota
Financial Services (UK) PLC] [Toyota Leasing GmbH] [Toyota Credit de Puerto Rico
Corp.] [Toyota Credit Canada Inc.] [Toyota Kreditbank GmbH]
4. Administrative
Agent: ______________________, as the administrative agent under the Credit
Agreement
________________________
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1
Select as applicable.
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D-1
Assignment
and Assumption
5. Credit
Agreement: 364 Day Credit
Agreement, dated as of March 6, 2009 (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 Finance (Netherlands)
B.V., a corporation organized under the laws of the Netherlands, Toyota Motor
Credit Corporation, a California corporation, Toyota Financial Services (UK)
PLC, a corporation organized under the laws of England, Toyota Leasing GmbH, a
corporation organized under the laws of Germany, Toyota Credit de Puerto Rico
Corp., a corporation organized under the laws of Puerto Rico, Toyota Credit
Canada Inc., a corporation organized under the laws of Canada, Toyota Kreditbank
GmbH, a corporation organized under the laws of Germany, the Lenders from time
to time party thereto, Bank of America, N.A., as Administrative Agent, Swing
Line Agent and Swing Line Lender, Banc of America Securities LLC, Citigroup
Global Markets Inc. and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Joint Lead
Arrangers and Joint Book Managers, Citibank, N.A. as Swing Line Lender and
Citibank, N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Syndication
Agents.
6. Assigned
Interest:2
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Facility Assigned:
Tranche [A][B][C][D]
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Aggregate
Amount
of
Tranche
[A][B][C][D] Commitment/Loans
for all Lenders*
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Amount
of
Tranche
[A][B][C][D] Commitment/Loans
Assigned*
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Percentage
Assigned
of
Tranche
[A][B][C][D] Commitment/Loans3
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Assignee’s
Commitment
Cap
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Commitment/Committed
Loans being assigned
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US$_______________
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US$________________
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______________%
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US$________________
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[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.]
[8. The
Assignee represents and warrants to the Assignor and to TCCI that it is not a
non-resident of Canada for the purposes of Part XIII of the Income Tax Act
(Canada).]5
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*
Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective
Date.
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2
The reference to “Loans” in
the table should be used only if the Credit Agreement provides for Term
Loans.
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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.
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D-2
Assignment
and Assumption
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:
D-3
Assignment
and Assumption
[Consented
to and]6 Accepted:
[NAME OF
ADMINISTRATIVE AGENT], as
Administrative
Agent
By:
_________________________________
Title:
[Consented
to:]7
By:
_________________________________
Title:
__________________________________
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6 To be added only if the consent
of the Administrative Agent is required by the terms of the Credit
Agreement.
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7 To be added only if the consent
of the applicable Borrower and/or other parties is required by the terms
of the Credit Agreement.
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D-4
Assignment
and Assumption
ANNEX
1 TO ASSIGNMENT AND ASSUMPTION
(364 DAY
CREDIT AGREEMENT, DATED AS OF MARCH 6, 2009 (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
FINANCE (NETHERLANDS) B.V., A CORPORATION ORGANIZED UNDER THE LAWS OF THE
NETHERLANDS, TOYOTA MOTOR CREDIT CORPORATION, A CALIFORNIA CORPORATION, TOYOTA
FINANCIAL SERVICES (UK) PLC, A CORPORATION ORGANIZED UNDER THE LAWS OF ENGLAND,
TOYOTA LEASING GMBH, A CORPORATION ORGANIZED UNDER THE LAWS OF GERMANY, TOYOTA
CREDIT DE PUERTO RICO CORP., A CORPORATION ORGANIZED UNDER THE LAWS OF PUERTO
RICO, TOYOTA CREDIT CANADA INC., A CORPORATION ORGANIZED UNDER THE LAWS OF
CANADA, TOYOTA KREDITBANK GMBH, A CORPORATION ORGANIZED UNDER THE LAWS OF
GERMANY, THE LENDERS FROM TIME TO TIME PARTY THERETO, BANK OF AMERICA, N.A., AS
ADMINISTRATIVE AGENT, BANC OF AMERICA SECURITIES LLC, CITIGROUP GLOBAL MARKETS
INC. AND THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., AS JOINT LEAD ARRANGERS AND
JOINT BOOK MANAGERS, CITIBANK, N.A., AS SWING LINE LENDER, AND CITIBANK, N.A.
AND THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., AS SYNDICATION 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
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Assignment
and Assumption
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 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.
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Assignment
and Assumption
