FIVE YEAR CREDIT AGREEMENT Dated as of March 28, 2007 among TOYOTA MOTOR FINANCE (NETHERLANDS) B.V. TOYOTA MOTOR CREDIT CORPORATION TOYOTA FINANCIAL SERVICES (UK) PLC TOYOTA KREDITBANK GMBH TOYOTA CREDIT DE PUERTO RICO CORP. TOYOTA CREDIT CANADA INC....
EXECUTION
VERSION
[Published
CUSIP Number:________]
FIVE
YEAR CREDIT AGREEMENT
Dated
as of March 28, 2007
among
TOYOTA
MOTOR FINANCE (NETHERLANDS) B.V.
TOYOTA
MOTOR CREDIT CORPORATION
TOYOTA
FINANCIAL SERVICES (UK) PLC
TOYOTA
KREDITBANK GMBH
TOYOTA
CREDIT DE PUERTO RICO CORP.
TOYOTA
CREDIT CANADA INC.
and
TOYOTA
LEASING GMBH,
as
the Borrowers,
BANK
OF AMERICA, N.A.,
as
Administrative Agent, Swing Line Agent and Swing Line Lender
and
The
Other Lenders Party Hereto
____________________________________________
BANC
OF AMERICA SECURITIES LLC
and
CITIGROUP
GLOBAL MARKETS INC.,
as
Joint Lead Arrangers and Joint Book Managers
_____________________________________________
CITICORP
USA, INC.,
as
Syndication Agent and Swing Line Lender
______________________________________________
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
BNP
PARIBAS
and
JPMORGAN
CHASE BANK, N.A.,
as
Documentation Agents
NYDOCS03/828371
TABLE
OF CONTENTS
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Page
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ARTICLE
I DEFINITIONS
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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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25
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|
Section
1.3 Accounting Terms
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25
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|
Section
1.4 References to Agreements and Laws
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25
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|
Section
1.5 Exchange Rates; Currency Equivalents
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26
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Section
1.6 Additional Alternative Currencies
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26
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|
Section
1.7 Change of Currency
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27
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|
Section
1.8 Times of Day
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27
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ARTICLE
II THE CREDITS
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27
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|
Section
2.1 Committed Loans
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27
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|
Section
2.2 Borrowings, Conversions and Continuations of Committed
Loans
|
29
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|
Section
2.3 Money Market Loans
|
31
|
|
Section
2.4 Prepayments
|
34
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|
Section
2.5 Termination or Reduction of Commitments
|
36
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Section
2.6 Repayment of Loans
|
36
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|
Section
2.7 Interest
|
37
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|
Section
2.8 Fees
|
37
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|
Section
2.9 Computation of Interest and Fees
|
38
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|
Section
2.10 Evidence of Debt
|
39
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|
Section
2.11 Payments Generally
|
39
|
|
Section
2.12 Sharing of Payments
|
42
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|
Section
2.13 Extension of Maturity Date
|
42
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|
Section
2.14 Increase in Commitments
|
43
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|
Section
2.15 Drawings of Bankers’ Acceptances, Drafts and BA Equivalent
Notes
|
45
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Section
2.16 Swing Line Loans
|
48
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ARTICLE
III TAXES, YIELD PROTECTION AND ILLEGALITY
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51
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Section
3.1 Taxes
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51
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|
Section
3.2 Illegality
|
53
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|
Section
3.3 Inability to Determine Rates
|
54
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|
Section
3.4 Increased Cost and Reduced Return; Capital Adequacy; Reserves
on
Eurocurrency Rate Loans
|
54
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|
Section
3.5 Funding Losses
|
55
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|
Section
3.6 Matters Applicable to all Requests for Compensation
|
56
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ARTICLE
IV CONDITIONS
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57
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Section
4.1 Effectiveness
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57
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Section
4.2 Conditions to all Loans
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59
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NYDOCS03/828371
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ARTICLE
V REPRESENTATIONS AND WARRANTIES
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59
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Section
5.1 Corporate Existence and Power
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59
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Section
5.2 Corporate and Governmental Authorization: No
Contravention
|
60
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|
Section
5.3 Binding Effect
|
60
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|
Section
5.4 Financial Information
|
60
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|
Section
5.5 Litigation
|
60
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|
Section
5.6 Compliance with ERISA
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61
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|
Section
5.7 Taxes
|
61
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|
Section
5.8 Subsidiaries
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61
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|
Section
5.9 Not an Investment Company
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61
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Section
5.10 Disclosure
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61
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|
Section
5.11 Representations as to Non-US Obligors
|
61
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ARTICLE
VI COVENANTS
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63
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Section
6.1 Information
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63
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|
Section
6.2 Maintenance of Property; Insurance
|
65
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|
Section
6.3 Conduct of Business and Maintenance of Existence
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65
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|
Section
6.4 Compliance with Laws
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65
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|
Section
6.5 Negative Pledge
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65
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Section
6.6 Consolidations
|
67
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Section
6.7 Use of Proceeds
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68
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ARTICLE
VII DEFAULTS
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68
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|
Section
7.1 Events of Default
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68
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|
Section
7.2 Application of Funds
|
70
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ARTICLE
VIII THE ADMINISTRATIVE AGENT
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70
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|
Section
8.1 Appointment and Authorization of Administrative Agent
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70
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|
Section
8.2 Delegation of Duties
|
71
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|
Section
8.3 Liability of Administrative Agent
|
71
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|
Section
8.4 Reliance by Administrative Agent
|
71
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|
Section
8.5 Notice of Default
|
72
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|
Section
8.6 Credit Decision; Disclosure of Information by Administrative
Agent
|
72
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|
Section
8.7 Indemnification of Administrative Agent
|
72
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|
Section
8.8 Administrative Agent in its Individual Capacity
|
73
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|
Section
8.9 Successor Administrative Agent and Sub-Agents
|
73
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|
Section
8.10 Administrative Agent May File Proofs of Claim
|
74
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|
Section
8.11 Other Agents, Arrangers and Managers
|
75
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|
Section
8.12 Sub-Agent
|
75
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ARTICLE
IX MISCELLANEOUS
|
76
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|
Section
9.1 Amendments, Etc
|
76
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|
Section
9.2 Notices and Other Communications; Facsimile Copies
|
77
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|
Section
9.3 No Waiver; Cumulative Remedies
|
78
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|
Section
9.4 Attorney Costs, Expenses and Taxes
|
78
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NYDOCS03/828371
|
Section
9.5 Indemnification by the Borrowers
|
79
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Section
9.6 Payments Set Aside
|
80
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|
Section
9.7 Successors and Assigns
|
80
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|
Section
9.8 Confidentiality
|
83
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|
Section
9.9 Set-off
|
84
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Section
9.10 Interest Rate Limitation
|
84
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|
Section
9.11 Counterparts
|
84
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|
Section
9.12 Integration
|
84
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Section
9.13 Survival of Representations and Warranties
|
84
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Section
9.14 Severability
|
85
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|
Section
9.15 Tax Forms
|
85
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|
Section
9.16 Replacement of Lenders
|
87
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Section
9.17 Governing Law
|
88
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Section
9.18 No Advisory or Fiduciary Responsibility
|
89
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Section
9.19 Patriot Act Notice
|
89
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Section
9.20 Judgment
|
90
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|
Section
9.21 Waiver of Right to Trial by Jury
|
90
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Schedules
Schedule
1.1 Mandatory
Cost
Schedule
2.1 Commitments
and Pro Rata Shares
Schedule
4.1(d) List
of Agreements to be Terminated
NYDOCS03/828371
Schedule
9.2 Administrative
Agent’s Office, Certain Addresses for Notices
Exhibits
Exhibit
A-1 Form
of Committed Loan Notice
Exhibit
A-2 Form
of Swing Line 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-1 Form
of Opinion of Peitrantoni ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Exhibit
I-2 Form
of Opinion of Stikeman Elliot
Exhibit
I-3 Form
of Opinion of Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ as Netherlands Counsel
to TMFNL
Exhibit
I-4 Form
of Opinion of Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ as English Counsel to TFSUK
Exhibit
I-5 Form
of Opinion of Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ as German Counsel to TKG
and TLG
Exhibit
J Form
of Opinion of Shearman & Sterling LLP
NYDOCS03/828371
FIVE
YEAR CREDIT AGREEMENT
THIS
FIVE YEAR CREDIT AGREEMENT (this “Agreement”) dated as of March 28, 2007, is
made among TOYOTA MOTOR FINANCE (NETHERLANDS) B.V., a corporation organized
under the laws of the Netherlands (“TMFNL”),
TOYOTA MOTOR CREDIT CORPORATION, a California corporation (“TMCC”),
TOYOTA FINANCIAL SERVICES (UK) PLC, a corporation organized under the laws
of
England (“TFSUK”),
TOYOTA KREDITBANK GMBH, a corporation organized under the laws of Germany
(“TKG”),
TOYOTA CREDIT DE PUERTO RICO CORP., a corporation organized under the laws
of
the Commonwealth of Puerto Rico (“TCPR”),
TOYOTA CREDIT CANADA INC., a corporation incorporated under the laws of Canada
(“TCCI”),
TOYOTA LEASING GMBH, a corporation organized under the laws of Germany
(“TLG”
and, together with TMFNL, TMCC, TFSUK, TKG, TCPR and TCCI the “Borrowers”),
each lender from time to time party hereto (collectively, the “Lenders”
and, individually, a “Lender”),
BANK OF AMERICA, N.A.., as Administrative Agent, Swing Line Agent and Swing
Line
Lender, BANC OF AMERICA SECURITIES LLC and CITIGROUP GLOBAL MARKETS INC, as
Joint Lead Arrangers and Joint Book Managers, CITICORP USA, INC., as Syndication
Agent and Swing Line Lender, and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., BNP
PARIBAS and JPMORGAN CHASE BANK, N.A., as Documentation Agents.
ARTICLE
I
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 Bank of America in its capacity as Administrative Agent for the Lenders
hereunder, and its successors in such capacity.
“Administrative
Agent's
Office”
means, with respect to any currency, the Administrative Agent's
address and, as appropriate, account as set forth on Schedule
9.2
with respect to such currency, or such other address or account with respect
to
such currency as the Administrative Agent may from time to time notify to the
Borrowers and the Lenders.
NYDOCS03/828371
“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.
“Agent-Related
Persons”
means the Administrative Agent, together with its Affiliates (including, in
the
case of Bank of America in its capacity as the Administrative Agent, Banc of
America LLC. as an Arranger, Bank of America, acting through its Canada Branch
in its capacity as Canadian Sub-Agent and Bank of America’s London Branch in its
capacity as Swing Line Agent), 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
the
Tranche A Borrowers, the Aggregate Tranche A Commitments, (iii) when used in
relation to TCPR, the Aggregate Tranche B Commitments, (iv) when used in
relation to TCCI, the Aggregate Tranche C Commitments and (v) when used in
relation to TLG, the Aggregate Tranche D 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.
“Aggregate
Tranche C Commitments”
means the Tranche C Commitments of all the Tranche C Lenders.
“Aggregate
Tranche D Commitments”
means the Tranche D Commitments of all the Tranche D Lenders.
“Agreement”
means this Credit Agreement.
“Alternative
Currency”
means each of Euro, Sterling, Canadian Dollars and each other currency (other
than US Dollars) that is approved in accordance with Section 1.6.
“Alternative
Currency Equivalent”
means, at any time, with respect to any amount denominated in US Dollars, the
equivalent amount thereof in the applicable Alternative Currency as determined
by the Administrative Agent at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase
of
such Alternative Currency with US Dollars.
NYDOCS03/828371
“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/▇▇▇▇▇'▇
|
Facility
Fee
|
Eurocurrency
Rate/ Bankers’ Acceptances/ Drafts/ BA Equivalent Notes/ Swing Line
Rate
|
Base
Rate/ Canadian Prime 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 Consolidated 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 on the
Closing Date. 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(g)
and ending on the date immediately preceding the effective date of the next
change and, in the case of a downgrade, 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.
“Applicable
Time”
means, with respect to any borrowings and payments in any Alternative Currency,
the local time in the place of settlement for such Alternative Currency as
may
be determined by the Administrative Agent to be necessary for timely settlement
on the relevant date in accordance with normal banking procedures in the place
of payment.
NYDOCS03/828371
“Applicable
Tranche Lenders”
means (i) with respect to the Tranche A Borrowers, the Tranche A Lenders, (ii)
with respect to TCPR, the Tranche B Lenders, (iii) with respect to TCCI, the
Tranche C Lenders and (iv) with respect to TLG, the Tranche D
Lenders.
“Arranger”
means either of Banc of America Securities LLC or Citigroup Global Markets
Inc.,
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 TMFNL, the audited balance sheet of TMFNL for the fiscal year
ended March 31, 2006 (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, (ii) for TMCC, the audited consolidated balance sheet of
TMCC
and its Subsidiaries for the fiscal year ended March 31, 2006 (or such later
date for which audited financial statements are delivered pursuant to this
Agreement) and the related consolidated statement of income or operations,
shareholders' equity and cash flows for such fiscal year of TMCC and its
Subsidiaries, including the notes thereto, (iii) for TFSUK, the audited
consolidated and company balance sheets of TFSUK for the fiscal year ended
March
31, 2006 (or such later date for which audited financial statements are
delivered pursuant to this Agreement), the consolidated profit and loss account
and statement of total recognized gains and losses for such financial year
of
TFSUK and its Subsidiaries, including the notes thereto, (iv) for TKG, the
audited consolidated balance sheet of TKG for the fiscal year ended March 31,
2006 (or such later date for which audited financial statements are delivered
pursuant to this Agreement) and the related consolidated statement of income
or
operations and shareholders' equity for such fiscal year, including the notes
thereto, (v) for TCPR, the audited balance sheet of TCPR for the fiscal year
ended March 31, 2006 (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, (vi) for TCCI, the audited balance sheet of TCCI for the
fiscal year ended March 31, 2006 (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 and (vii) for TLG, the audited balance sheet
of TLG for the fiscal year ended March 31, 2006 (or such later date for which
audited financial statements are delivered pursuant to this Agreement) and
the
related statement of income or operations, and shareholders’ equity for such
fiscal year, including the notes thereto .
“BA
Equivalent Note”
has the meaning specified in Section 2.15(i).
NYDOCS03/828371
“BA
Maturity Date”
means, for each Bankers’ Acceptance, Draft or BA Equivalent Note comprising part
of the same Drawing, the date on which the Face Amount for such Bankers’
Acceptance, Draft or BA Equivalent Note, as the case may be, becomes due and
payable in accordance with the provisions set forth below, which shall be a
Canadian Business Day occurring 30, 60, 90 or 180 days (or subject to
availability, such greater period not to exceed 364 days) after the date on
which such Bankers’ Acceptance, Draft or BA Equivalent Note is created and
purchased as part of any Drawing, as TCCI may select upon notice received by
the
Administrative Agent not later than 11:00 A.M. (Toronto time) on a Canadian
Business Day at least two Canadian Business Days prior to the date on which
such
Bankers’ Acceptance or Draft is to be purchased or BA Equivalent Note is to be
made (whether as a new Drawing or by renewal); provided,
however, that:
(a) TCCI
may not select any BA Maturity Date for any Bankers’ Acceptance, Draft or BA
Equivalent Note that occurs after the then scheduled Revolving Maturity
Date;
(b) the
BA Maturity Date for all Bankers’ Acceptances, Drafts and BA Equivalent Notes
comprising part of the same Drawing shall occur on the same date;
and
(c) whenever
the BA Maturity Date for any Bankers’ Acceptance, Draft or BA Equivalent Note
would otherwise occur on a day other than a Canadian Business Day, such BA
Maturity Date shall be extended to occur on the next succeeding Canadian
Business Day.
Notwithstanding
the foregoing, TCCI may select a BA Maturity Date which would end after the
Revolving Maturity Date applicable to TCCI only if it has previously delivered,
or delivers concurrently with the applicable Committed Loan Notice, an election
to extend the Revolving Maturity Date pursuant to Section 2.13(c)
“Bankers’
Acceptance”
has the meaning specified in Section 2.1(c).
“Bank
of America”
means Bank of America, N.A.
“Base
Rate”
means, (a) in respect of Tranche A, Tranche B or Tranche D, for any day a
fluctuating rate per annum equal to the higher of (i) the Federal Funds Rate
plus 1/2 of 1% and (ii) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate.” The “prime
rate” is a rate set by Bank of America based upon various factors including Bank
of America’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 and (b) in respect of Tranche
C,
for any day, the fluctuating rate per annum determined in accordance with clause
(a) plus 0.5%. Any change in such rate announced by Bank of America 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.
NYDOCS03/828371
“Base
Rate
Loan”
means a Loan denominated in US Dollars that bears interest based on the Base
Rate. All Base Rate Loans shall be denominated in US Dollars.
“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 any of TMFNL, TMCC, TFSUK, TKG, TCPR, TCCI or TLG, as
applicable.
“Borrower
Materials”
has the meaning specified in Section
6.1.
“Borrowing”
means a Committed Borrowing, a Money Market Borrowing or a Swing Line Borrowing,
as the context may require.
“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, and San ▇▇▇▇, Puerto Rico, (ii) if such day relates to
any
Eurocurrency Rate Loan or Money Market LIBOR Loan denominated in US Dollars,
any
such day on which dealings in US Dollar deposits are conducted by and between
banks in the London interbank eurodollar market, (iii) if such day relates
to
any interest rate settings as to a Eurocurrency Rate Loan, Money Market LIBOR
Loan or Swing Line Loan denominated in Euro, a TARGET Day; (iv) if such day
relates to any interest rate settings as to a Eurocurrency Rate Loan, Money
Market LIBOR Loan or Swing Line Loan denominated in a currency other than US
Dollars or Euro, means any such day on which dealings in deposits in the
relevant currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and (v) if such day
relates to any Tranche C Loan, a Canadian Business Day.
“Canadian
Business Day”
means a day of the year on which banks are not required or authorized by law
to
close in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
“Canadian
Dollars”
and “CDN$”
each means lawful money of Canada.
“Canadian
Prime Rate”
means, on any day, a fluctuating rate of interest per annum equal to the average
of the rates of interest per annum most recently announced by each Canadian
Reference Bank as its reference rate of interest for loans made in Canadian
Dollars to Canadian customers and designated as such Canadian Reference Bank’s
“prime rate” (a Canadian Reference Bank’s “prime rate” being a rate set by such
Canadian Reference Bank based upon various factors, including such Canadian
Reference Bank’s costs and desired returns and general economic conditions, 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 the
Canadian Sub-Agent shall take effect at the opening of business on the day
specified in the public announcement of such change. Each interest rate based
upon the Canadian Prime Rate shall be adjusted simultaneously with any change
in
the Canadian Prime Rate.
NYDOCS03/828371
“Canadian
Prime Rate Loan”
means a Tranche C Loan denominated in Canadian Dollars that bears interest
based
on the Canadian Prime Rate.
“Canadian
Reference Banks”
means Bank of America, acting through its Canada Branch, Royal Bank of Canada
and Canadian Imperial Bank of Commerce.
“Canadian
Sub-Agent”
means Bank of America, acting through its Canada Branch.
“Canadian
Sub-Agent’s
Office”
means, with respect to Canadian Dollars, the Canadian Sub-Agent’s
address and, as appropriate, account as set forth on Schedule
9.2,
or such other address or account with respect to such currency as the Canadian
Sub-Agent may from time to time notify to TCCI and the Tranche C
Lenders.
“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, its Tranche B Commitment,
its Tranche C Commitment or its Tranche D Commitment, as
applicable.
“Commitment
Cap”
means, as to each Lender, the amount set opposite its name on Schedule 2.1
as
such Lender’s “Commitment Cap” 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.
“Committed
Borrowing”
means a borrowing consisting of simultaneous Committed Loans of the same Type
and Tranche and, in the case of Eurocurrency 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, a Committed Tranche B Loan, a Committed
Tranche C Loan or a Committed Tranche D 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 Eurocurrency Rate Loans,
pursuant to Section
2.2(a),
which, if in writing, shall be substantially in the form of Exhibit
A-1.
A Committed Loan Notice for a Eurocurrency Rate Loan with an Interest Period
extending beyond the Revolving Maturity Date applicable to the Borrower giving
such notice may only be delivered concurrently with (or, in the case of (b)
or
(c) above, concurrently with or subsequently to) a notice of election by such
Borrower to extend the Revolving Maturity Date applicable to such Borrower
pursuant to Section
2.13(c).
A Committed Loan Notice for Bankers’ Acceptances or BA Equivalent Notes with BA
Maturity Date extending beyond the Revolving Maturity Date applicable to TCCI
may only be delivered concurrently with (or, in the case of (b) or (c) above,
concurrently with or subsequently to) a
NYDOCS03/828371
notice
of election by TCCI to extend the Revolving Maturity Date applicable to TCCI
pursuant to Section
2.13(c).
“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).
“Committed
Tranche C Loan”
means a loan made by, or the purchase or acceptance of Bankers’ Acceptances or
purchase of Drafts by, a Tranche C Lender pursuant to Section
2.1(c).
“Committed
Tranche D Loan”
means a loan made by a Tranche D Lender pursuant to Section
2.1(d).
“Compliance
Certificate”
means a certificate substantially in the form of Exhibit
C.
“Consenting
Lenders”
has the meaning specified in Section
2.13(b).
“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.”
“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 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) in the case of Loans denominated in US
Dollars, (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus
(iii) 2% per annum; provided,
however,
that with respect to a Eurocurrency Rate Loan or Money Market Loan, the Default
Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus
2% per annum and (b) in the case of Loans denominated in Canadian Dollars (i)
the Canadian Prime Rate plus (ii) the Applicable Rate, if any, applicable to
Canadian Prime Rate Loans plus (iii) 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
or participations in Swing Line Loans required to be funded by it hereunder
NYDOCS03/828371
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.
“Discount
Rate”
means, in respect of any Bankers’ Acceptances or Drafts to be purchased by a
Tranche C Lender pursuant to Section 2.1(c): (i) for a Tranche C Lender that
is
a Schedule I Bank, the average rate (calculated on an annual basis of a year
of
365 days and rounded up to the nearest five decimal places, if such average
is
not such a multiple) for Canadian Dollar bankers’ acceptances having a
comparable term that appears on the Reuters Screen CDOR Page (or such other
page
as is a replacement page for such bankers’ acceptances) at 10:00 A.M. (Toronto
time) or, if such rate is not available at such time, the applicable discount
rate in respect of such Bankers’ Acceptances or Drafts shall be the average (as
determined by the Canadian Sub-Agent) of the respective actual discount rates
(calculated on an annual basis of 365 days and rounded up to the nearest five
decimal places, if such average is not such a multiple), quoted to the Canadian
Sub-Agent by each Canadian Reference Bank as the discount rate at which such
Canadian Reference Bank would purchase, as of 10:00 A.M. (Toronto time) on
the
date of such Drawing, its own bankers’ acceptances having an aggregate Face
Amount equal to and with a term to maturity the same as the Bankers’ Acceptances
or Drafts to be acquired by such Lender as part of such Drawing; and (ii) for
each other Tranche C Lender and any other Lender or Person, the average rate
determined by the Canadian Sub-Agent pursuant to clause (a) plus
0.05%.
“Dollar
Equivalent”
means, at any time, (a) with respect to any amount denominated in US
Dollars, such amount, and (b) with respect to any amount denominated in any
Alternative Currency, the equivalent amount thereof in US Dollars as determined
by the Administrative Agent at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase
of
US Dollars with such Alternative Currency.
“Draft”
means, at any time, either a depository ▇▇▇▇ within the meaning of the
Depository Bills and Notes Act, or a ▇▇▇▇ of exchange within the meaning of
the
Bills of Exchange Act (Canada), drawn by TCCI on a Lender or any other Person
and bearing such distinguishing letters and numbers as the Lender or the Person
may determine, but which at such time has not been completed as the payee or
accepted by the Lender or the Person.
“Drawing”
means the simultaneous (i) creation and purchase of Bankers’ Acceptances by the
Tranche C Lenders, in accordance with Section 2.15(a), or (ii) the purchase
of
completed Drafts by a Tranche C Lender in accordance with Section
2.15(a).
“Drawing
Fee”
means, with respect to each Draft drawn by TCCI and purchased by any Person
on
any Drawing Date and subject to the provisions of Section 2.15, an amount equal
to the product of (i) the Applicable Rate times the aggregate Face Amount of
the
Draft, multiplied by (ii) a fraction the numerator of which is the number of
days in the term to maturity of such Draft and the denominator of which is
365
or 366, as applicable.
“Drawing
Purchase Price”
means, with respect to each Bankers’ Acceptance or Draft to be purchased by any
Tranche C Lender at any time, the amount (adjusted to the nearest whole
NYDOCS03/828371
cent
or, if there is no nearest whole cent, the next higher whole cent) obtained
by
dividing (i) the aggregate Face Amount of such Bankers’ Acceptance, by (ii) the
sum of (A) one and (B) the product of (1) the Discount Rate applicable to such
Tranche C Lender in effect at such time (expressed as a decimal) multiplied
by
(2) a fraction the numerator of which is the number of days in the term to
maturity of such Bankers’ Acceptance or Draft and the denominator of which is
365 days.
“Eligible
Assignee”
has the meaning specified in Section
9.7(h).
“EMU”
means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Maastricht Treaty of
1992
and the Amsterdam Treaty of 1998.
“EMU
Legislation”
means the legislative measures of the European Council for the introduction
of,
changeover to or operation of a single or unified European
currency.
“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 organized under the laws of the United States or any State
thereof, the District of Columbia or Puerto Rico, any Subsidiary of such
Borrower 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 such Subsidiary, are treated as a single employer
under Section 414 of the Code.
“Euro”
and “EUR”
mean the lawful currency of the Participating Member States introduced in
accordance with the EMU Legislation.
“Eurocurrency
Base Rate”
has the meaning set forth in the definition of Eurocurrency Rate.
“Eurocurrency
Rate”
means for any Interest Period with respect to any Eurocurrency Rate Loan, a
rate
per annum determined by the Administrative Agent pursuant to the following
formula:
Eurocurrency
Rate = Eurocurrency
Base Rate
1.00
minus Eurocurrency Reserve Percentage
Where,
NYDOCS03/828371
“Eurocurrency
Base Rate”
means, for such Interest Period, the rate per annum equal to the British Bankers
Association LIBOR Rate (“BBA
LIBOR”),
as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time
to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the
commencement of such Interest Period, for deposits in the relevant currency
(for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason,
then the “Eurocurrency Base Rate” for such Interest Period shall be the rate per
annum determined by the Administrative Agent to be the rate at which deposits
in
the relevant currency for delivery on the first day of such Interest Period
in
Same Day Funds in the approximate amount of the Eurocurrency Rate Loan being
made, continued or converted by Bank of America’s London Branch and with a term
equivalent to such Interest Period would be offered by Bank of America’s London
Branch (or other Bank of America branch or Affiliate) to major banks in the
London or other offshore interbank market for such currency at their request
at
approximately 11:00 a.m. (London time) two Business Days prior to the first
day
of such Interest Period.
“Eurocurrency
Reserve Percentage”
means, for any day 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
Eurocurrency Rate for each outstanding Eurocurrency Rate Loan shall be adjusted
automatically as of the effective date of any change in the Eurocurrency Reserve
Percentage.
“Eurocurrency
Rate Loan”
means a Committed Loan that bears interest at a rate based on the Eurocurrency
Rate. Eurocurrency Rate Loans may be denominated in US Dollars or in an
Alternative Currency. All Committed Loans denominated in an Alternative Currency
(other than Canadian Dollar Loans made under Tranche C) must be Eurocurrency
Rate Loans.
“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 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.
NYDOCS03/828371
“Face
Amount”
means, with respect to any Bankers’ Acceptance, Drafts or BA Equivalent Note,
the amount payable to the holder of such Bankers’ Acceptance, Draft or BA
Equivalent Note on its maturity date.
“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 Bank of America on such day on such transactions
as
determined by the Administrative Agent.
“Fee
Letter”
means a letter, dated as of February 22, 2007 among TMCC, the Administrative
Agent, Citibank, N.A. and the Arrangers.
“FRB”
means the Board of Governors of the Federal Reserve System of the United
States.
“GAAP”
means, (i) in the case of TMCC and TCPR, 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, (ii) in the case of TCCI, accounting
principles generally accepted in Canada as recommended in the Handbook of the
Canadian Institute of Chartered Accountants, consistently applied, and (iii)
in
the case of any other Borrower to which United States generally accepted
accounting principles are not applicable, accounting principles generally
accepted in the country in which such Borrower is organized, as adopted,
recommended or declared by the applicable accounting board or similar entity
regularly determining such matters in such country, consistently applied.
“Governmental
Authority”
means any nation or government, any state, provincial 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.
“ICTA”
means the United Kingdom Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
“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 Eurocurrency 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 Eurocurrency Rate Loan or Money
NYDOCS03/828371
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, any Canadian Prime Rate
Loan
or any Swing Line Loan, the last Business Day of each March,
June, September and December, the Revolving Maturity Date applicable to the
Borrower of such Loan, and, if later than the Revolving Maturity
Date, the Maturity Date applicable to the Borrower of such Loan.
“Interest
Period”
means, (a) as to each Eurocurrency Rate Loan, the period commencing on the
date
such Loan is disbursed or converted to or continued as a Eurocurrency Rate
Loan
and ending on the date one, two, three or six months, thereafter, as selected
by
the applicable Borrower in its Committed Loan 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,
(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
and (d) as to each Swing Line 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 2.16; 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; and
(iii) no
Interest Period for a Eurocurrency Rate Loan shall extend beyond the Maturity
Date applicable to such Borrower, and no Interest Period for Money Market Loans
shall extend beyond the Revolving Maturity Date applicable to such
Borrower.
Notwithstanding
the foregoing, a Borrower may select an Interest Period for a Eurocurrency
Rate
Loan which would end after the Revolving Maturity Date applicable to such
Borrower only if it has previously delivered, or delivers concurrently with
the
applicable Committed Loan Notice, an election to extend the Revolving Maturity
Date pursuant to Section
2.13(c).
“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.
“ITA”
means the Income
Tax Act
(Canada), as amended.
NYDOCS03/828371
“Laws”
means, collectively, all federal, state and local statutes, executive orders,
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 and, as the
context requires, includes each Swing Line Lender.
“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 Eurocurrency 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, a Money Market Loan or a Swing Line
Loan.
“Loan
Documents”
means this Agreement, each Note, and the Fee Letter.
“Mandatory
Cost”
means, with respect to any period, the percentage rate per annum determined
in
accordance with Schedule 1.1.
“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 denominated in US Dollars 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 Eurocurrency Rate, having the same Interest Period made by a Lender
pursuant to Section
2.3.
“Money
Market LIBOR Loan”
means a loan denominated in US Dollars 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).
NYDOCS03/828371
“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.
“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.
NYDOCS03/828371
“Outstanding
Amount”
means, (i) with respect to Committed Loans and Money Market Loans on any date,
the aggregate outstanding principal amount or, in the case of Bankers’
Acceptances, Drafts and BA Equivalent Notes, Face 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; and (ii) with
respect to Swing Line Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of such Swing Line Loans occurring on such date.
“Overnight
Rate”
means, for any day, (a) with respect to any amount denominated in US Dollars,
the Federal Funds Rate, (b) with respect to any amount denominated in Canadian
Dollars, an overnight rate determined by the Administrative Agent, the Swing
Line Agent or Canadian Sub-Agent, as the case may be, in accordance with banking
industry rules on interbank compensation, and (c) with respect to any amount
denominated in an Alternative Currency other than Canadian Dollars, the rate
of
interest per annum at which overnight deposits in the applicable Alternative
Currency, in an amount approximately equal to the amount with respect to which
such rate is being determined, would be offered for such day by a branch or
Affiliate of Bank of America in the applicable offshore interbank market for
such currency to major banks in such interbank market.
“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.
“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.
“Platform”
has the meaning specified in Section
6.1.
“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
NYDOCS03/828371
assignments
made pursuant to the terms hereof, (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, (c) with respect to each Tranche C 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 C Commitment of such Lender
at
such time and the denominator of which is the amount of the Aggregate Tranche
C
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 C 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, (d) with respect to each Tranche D 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 D Commitment of such Lender
at
such time and the denominator of which is the amount of the Aggregate Tranche
D
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 D 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 and (e) with respect to the aggregate Commitments
of
all Lenders at any time, a fraction (expressed as a percentage, carried out
to
the ninth decimal place), the numerator of which is the amount of such Lender’s
Commitment Cap and the denominator of which is the aggregate amount of the
Commitments at such time.
“Public
Lender”
has the meaning specified in Section
6.1.
“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).
“Regulation
U”
means Regulation U of the FRB, as in effect from time to time.
“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, (b) with respect to a Money Market
Borrowing,
NYDOCS03/828371
a
Notice of Money Market Borrowing (as defined in Section
2.3(f)),
and (c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.
“Required
Lenders”
means, (a) with respect to matters related solely to the Tranche A Borrowers
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 the Tranche A Borrowers (with the aggregate amount
of
each Lender’s risk participation and funded participation in Swing Line Loans
under Tranche A being deemed “held” by such Lender for purposes of this
definition); provided
that the Commitment of, and the portion of the Total Outstandings applicable
to
the Tranche A Borrowers 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 solely 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 (with the aggregate amount of each Lender’s risk
participation and funded participation in Swing Line Loans under Tranche B
being
deemed “held” by such Lender for purposes of this definition); 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, (c) with respect to
matters related solely to TCCI as of any date of determination, Lenders having
more than 50% of the Aggregate Tranche C Commitments or, if the commitment
of
each Tranche C Lender to make Loans has been terminated pursuant to Section
7.1,
Tranche C Lenders holding in the aggregate more than 50% of the Total
Outstandings applicable to TCCI (with the aggregate amount of each Lender’s risk
participation and funded participation in Swing Line Loans under Tranche C
being
deemed “held” by such Lender for purposes of this definition); provided
that the Commitment of, and the portion of the Total Outstandings applicable
to
TCCI held, or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders, (d) with respect to
matters related solely to TLG as of any date of determination, Lenders having
more than 50% of the Aggregate Tranche D Commitments or, if the commitment
of
each Tranche D Lender to make Loans has been terminated pursuant to Section
7.1,
Tranche D Lenders holding in the aggregate more than 50% of the Total
Outstandings applicable to TLG (with the aggregate amount of each Lender’s risk
participation and funded participation in Swing Line Loans under Tranche D
being
deemed “held” by such Lender for purposes of this definition); provided
that the Commitment of, and the portion of the Total Outstandings applicable
to
TLG held, or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders and (e) in all other
cases, Lenders having more than 50% of the Aggregate Commitments of all Lenders
or, to the extent the Commitments have been terminated, more than 50% of the
Total Outstandings of all Loans, provided that the Commitment of, and the
portion of the Total Outstandings held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required
Lenders.
“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
NYDOCS03/828371
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.
“Revaluation
Date”
means each of the following: (i) each date of a Borrowing of a Eurocurrency
Rate
Loan denominated in an Alternative Currency, (ii) each date of a continuation
of
a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to
Section 2.02,
and (iii) such additional dates as the Administrative Agent shall determine
or
the Required Lenders shall request.
“Revolving
Maturity Date”
means, with respect to any Borrower, the later of (a) March 27, 2012, and (b)
if
maturity is extended upon the request of such Borrower pursuant to Section
2.13(b),
such extended revolving maturity date as determined pursuant to such Section;
provided,
however, that the Revolving Maturity Date of any Lender that is a non-Consenting
Lender to any requested extension pursuant to Section
2.13(b)
shall be the Revolving Maturity Date in effect immediately prior to the
applicable Revolving Extension Effective Date for all purposes of this
Agreement.
“S&P”
means Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. and any successor thereto.
“Same
Day Funds”
means (a) with respect to disbursements and payments in US Dollars, immediately
available funds, and (b) with respect to disbursements and payments in an
Alternative Currency, same day or other funds as may be determined by the
Administrative Agent to be customary in the place of disbursement or payment
for
the settlement of international banking transactions in the relevant Alternative
Currency.
“Schedule
I Banks”
shall mean, at any time, the Lenders that are listed in Schedule I to the Bank
Act (Canada) at such time.
“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.
“Special
Notice Currency”
means at any time an Alternative Currency, other than the currency of a country
that is a member of the Organization for Economic Cooperation and Development
at
such time located in North America or Europe.
“Spot
Rate”
for a currency means the rate determined by the Administrative Agent to be
the
rate quoted by the Person acting in such capacity as the spot rate for the
purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the
date two Business Days prior to the date as of which the foreign exchange
computation is made; provided that
the Administrative Agent may obtain
NYDOCS03/828371
such
spot rate from another financial institution designated by the Administrative
Agent if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency.
“Sterling”
and “£”
mean the lawful currency
of the United Kingdom.
“Sub-Agents”
means the Canadian Sub-Agent and the Swing Line Agent.
“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.
“Swing
Line Agent”
means Bank of America, acting through its London Branch.
“Swing
Line Borrowing”
means a borrowing of a Swing Line Loan pursuant to Section
2.16.
“Swing
Line Commitment”
means, as to each Swing Line Lender, its obligation to make Swing Line Loans
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
as its “Swing Line Commitment” 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.
“Swing
Line Lenders”
means each of the Lenders that has a Swing Line Commitment on Schedule 2.1
hereto, or any successor swing line lender hereunder.
“Swing
Line Loan”
has the meaning specified in Section
2.16(a).
“Swing
Line Loan Notice”
means a notice of a Swing Line Borrowing pursuant to Section
2.16(b),
which, if in writing, shall be substantially in the form of Exhibit
A-2.
“Swing
Line Rate”
means, (a) in respect of Swing Line Loans made in US Dollars or any Alternate
Currency other than Canadian Dollars, for any Interest Period, the sum of (i)
the rate per annum determined by the Swing Line Agent as the rate of interest
(rounded upward to the next 1/100th of 1%) at which deposits in the relevant
currency for delivery on the first day of such Swing Line Loan in Same Day
Funds
in the approximate amount of the Swing Line Loan being made by the Swing Line
Agent (or its affiliate) and with a term equivalent to such Interest Period
would be offered by Bank of America’s London Branch to major banks in the London
or other offshore interbank market for such currency at their request at
approximately 11:00 A.M. (London time) on the first day of such Swing Line
Loan
(ii) the Applicable Rate and (iii) the applicable Mandatory Cost and (b) in
the
case of Swing Line Loans made in Canadian Dollars, the Canadian Prime
Rate.
“Swing
Line Sublimit”
means an amount equal to the least of (a) US$2,000,000,000, (b) the aggregate
Swing Line Commitments of the Swing Line Lenders and (c) the Aggregate
NYDOCS03/828371
Commitments.
The Swing Line Sublimit is part of, and not in addition to, the Aggregate
Commitments.
“TARGET
Day”
means any day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET) payment system (or, if such payment system ceases
to
be operative, such other payment system (if any) determined by the
Administrative Agent to be a suitable replacement) is open for the settlement
of
payments in Euro.
“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 (1) United States or Puerto Rico withholding tax imposed
on
payments by the Tranche A Borrowers or TCPR, respectively under this Agreement
or any other Loan Document, or (2) Canadian withholding tax imposed on payments
by TCCI, under this Agreement or any other Loan Document to a Tranche C 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 the Tranche A Borrowers, the Outstanding Amount of all Loans made
to
the Tranche A Borrowers, (iii) when used in relation to TCPR, the Outstanding
Amount of all Loans made to TCPR, (iv) when used in relation to TCCI, the
Outstanding Amount of all Loans made to TCCI and (v) when used in relation
to
TLG, the Outstanding Amount of all Loans made to TLG.
“Tranche
A Availability Period”
means the period from and including the Closing Date to the earliest of (a)
the
Revolving Maturity Date applicable to the Tranche A Borrowers, (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 Borrowers”
means TMFNL, TMCC, TFSUK and TKG.
“Tranche
A Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to the
Tranche A Borrowers pursuant to Section
2.1(a)
and (b) purchase participations in Swing Line Loans, 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
as its “Tranche A Commitment” or in the Assignment and Assumption pursuant to
which such
NYDOCS03/828371
Lender
becomes a party hereto, as applicable, as such amount may be adjusted from
time
to time in accordance with this Agreement.
“Tranche
A Facility”
means the aggregate of the Tranche A Commitments.
“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 a Tranche A Borrower under
Article
II
in the form of a Committed Loan or a Money Market Loan. Tranche A Loans shall
be
denominated in US Dollars or any Alternative Currency.
“Tranche
B Availability Period”
means the period from and including the Closing Date to the earliest of (a)
the
Revolving Maturity Date applicable to TCPR, (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 (a) make Committed Loans to TCPR
pursuant to Section
2.1(b)
and (b) purchase participations in Swing Line Loans, 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
as its “Tranche
B Commitment”
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 Facility”
means the aggregate of the Tranche B Commitments.
“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.
“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. Tranche B Loans shall
be
denominated in US Dollars or any Alternative Currency.
“Tranche
C Availability Period”
means the period from and including the Closing Date to the earliest of (a)
the
Revolving Maturity Date applicable to TCCI, (b) the date of termination of
the
Aggregate Tranche C Commitments pursuant to
Section 2.5,
and (c) the date of termination of the commitment of each Tranche C Lender
to
make Loans pursuant to Section
7.1.
“Tranche
C Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to TCCI
pursuant to Section
2.1(c)
and (b) purchase participations in Swing Line Loans, 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
as its “Tranche C Commitment” 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.
NYDOCS03/828371
“Tranche
C Facility”
means the aggregate of the Tranche C Commitments.
“Tranche
C Lender”
means each Lender that has a Tranche C Commitment on Schedule
2.1
or any Lender to which a portion of the Tranche C Commitment hereunder has
been
assigned pursuant to an Assignment and Assumption.
“Tranche
C Loan”
means an extension of credit by a Lender to TCCI under Article
II
and shall, unless the context otherwise requires, be deemed to include Drafts
accepted or purchased by any such Lender, and BA Equivalent Notes issued to
such
Lender in exchange for Drafts. Tranche C Loans may be denominated in Canadian
Dollars (as Canadian Prime Rate Loans, Bankers’ Acceptances, Drafts or BA
Equivalent Notes), US Dollars (as Base Rate Loans or Eurocurrency Rate Loans)
or
any Alternative Currency (as Eurocurrency Rate Loans).
“Tranche
D Availability Period”
means the period from and including the Closing Date to the earliest of (a)
the
Revolving Maturity Date applicable to TLG, (b) the date of termination of the
Aggregate Tranche D Commitments pursuant to Section
2.5,
and (c) the date of termination of the commitment of each Tranche D Lender
to
make Loans pursuant to
Section 7.1.
“Tranche
D Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to TLG
pursuant to Section
2.1(d)
and (b) purchase participations in Swing Line Loans, 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
as its “Tranche D Commitment” 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
D Facility”
means the aggregate of the Tranche D Commitments.
“Tranche
D Lender”
means each Lender that has a Tranche D Commitment on Schedule
2.1
or any Lender to which a portion of the Tranche D Commitment hereunder has
been
assigned pursuant to an Assignment and Assumption.
“Tranche
D Loan”
means an extension of credit by a Lender to TLG under Article
II
in the form of a Committed Loan or a Money Market Loan. Tranche D Loans shall
be
denominated in US Dollars or any Alternative Currency.
“Type”
means, with respect to a Loan, its character as a Base Rate Loan, a Canadian
Prime Rate Loan, a Eurocurrency Rate Loan, a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
“UK
Qualifying Lender”
means (a) a Lender which is beneficially entitled to interest payable to that
Lender in respect of a Loan to TFSUK and is (i) a Lender: (1) which is a bank
(as defined for the purpose of section 349 ICTA) making an advance to TFSUK
under this Agreement; or (2) in respect of an advance made under this Agreement
to TFSUK by a person that was a bank (as defined for the purpose of section
349
ICTA) at the time the advance was
NYDOCS03/828371
made,
and which is within the charge to United Kingdom corporation tax as regards
any
payment of interest made in respect of that advance; or (ii) a Lender which
is:
(1) a company resident in the United Kingdom for United Kingdom tax purposes,
(2) a company not so resident in the United Kingdom which carries on a trade
in
the United Kingdom through a permanent establishment and the payment falls
to be
brought into account in computing its chargeable profits (within the meaning
given by section 11(2) ICTA); or (iii) a UK Treaty Lender, or (b) a US LLC
Lender.
“UK
Treaty Lender”
means a Lender which:
(i)
is treated as a resident of a jurisdiction having a double taxation agreement
with the United
Kingdom which makes provision for full exemption from Tax imposed by the
United
Kingdom on interest; and
(ii)
does not carry on business in the United Kingdom through a permanent
establishment with
which that Lender’s participation in respect of a Loan to TFSUK is effectively
connected;
and
(iii)
if a US Lender, is fully entitled to the benefits of the UK/US Treaty (or if
not
so entitled,
would have been so entitled but for its failure to be so fully entitled being
attributable
to (x) the status of or any action or omission of TFSUK or any affiliate
thereof
or to any relationship between the Lender and TFSUK or any affiliate thereof
or
(y)
any steps taken pursuant to Section 9.16),
provided
that “UK Treaty Lender” shall mean any Lender in respect of a Loan to TFSUK, if
such Lender becomes a Lender when an Event of Default has occurred and is
continuing.
“UK/US
Treaty”
means the convention between the Government of the United Kingdom of Great
Britain and Northern Ireland and the Government of the United States of America
for the avoidance of double taxation and the prevention of fiscal evasion with
respect to taxes on income and on capital gains which is, on the date the
relevant payment of interest on a Loan falls due, in force.
“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.
“Unused
Tranche A Commitment”
means, with respect to any Tranche A Lender at any time (a) such Lender’s
Tranche A Commitment at such time minus
(b) the sum of (i) the
NYDOCS03/828371
aggregate
principal amount of all Tranche A Loans made by such Lender and outstanding
at
such time plus
(ii) such Lender’s Pro Rata Share of the aggregate principal amount of all Money
Market Loans made to the Tranche A Borrowers pursuant to Section 2.3 and
outstanding at such time plus
(iii) such Lender’s Pro Rata Share of the aggregate principal amount of all
Swing Line Loans made to the Tranche A Borrowers pursuant to Section 2.16 and
outstanding at such time plus
(iv) in the case of a Tranche A Lender that is (or has an Affiliate that is)
a
Tranche B Lender, such Tranche B Lender’s Pro Rata Share of the Total
Outstandings applicable to TCPR in excess of US$400,000,000 plus
(v) in the case of a Tranche A Lender that is (or has an Affiliate that is)
a
Tranche C Lender, such Tranche C Lender’s Pro Rata Share of the Total
Outstandings applicable to TCCI in excess of US$366,666,667 plus
(vi) in the case of a Tranche A Lender that is (or has an Affiliate that is)
a
Tranche D Lender, such Tranche D Lender’s Pro Rata Share of the Total
Outstandings applicable to TLG in excess of US$166,666,667, provided,
that the amounts set forth in clauses (iv), (v) and (vi) shall be decreased
pro
rata if the applicable Commitment is decreased as provided in Section 2.5 and
shall be increased pro rata if the applicable Commitment is increased as
provided in Section 2.14.
“US
Dollar”
and “US$”
mean lawful money of the United States.
“US
Lender”
means a Lender which is treated as resident (for the purposes of the UK/US
Treaty) in the United States of America.
“US
LLC Lender”
means a Lender in respect of a Loan to TFSUK which is a US limited liability
company where each ultimate recipient of the interest payable to that Lender
would be a UK Qualifying Lender pursuant to limb (a) of the definition of UK
Qualifying Lender were that ultimate recipient a Lender in respect of that
Loan.
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.
NYDOCS03/828371
(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.
Section
1.4 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 1.5
Exchange
Rates; Currency Equivalents.
(a) The Administrative Agent shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of Loan
and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates
shall become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between the applicable currencies until
the
next Revaluation Date to occur. Except for purposes of financial statements
delivered by the Borrowers hereunder or calculating financial covenants
hereunder or except as otherwise provided herein, the applicable amount of
any
currency (other than US Dollars) for purposes of the Loan Documents shall be
such Dollar Equivalent amount as so determined by the Administrative
Agent.
(b) Wherever
in this Agreement in connection with a Committed Borrowing, conversion,
continuation or prepayment of a Eurocurrency Rate Loan, an amount, such as
a
required minimum or multiple amount, is expressed in US Dollars, but such
Committed Borrowing or Eurocurrency Rate Loan is denominated in an Alternative
Currency, such amount shall be the relevant Alternative Currency Equivalent
of
such US Dollar amount (rounded to the nearest unit of such Alternative Currency,
with 0.5 of a unit being rounded upward), as determined by the Administrative
Agent.
Section 1.6
Additional
Alternative Currencies. (a)
The Borrowers may from time to time request that Eurocurrency Rate Loans be
made
in a currency other than those specifically listed in the definition of
NYDOCS03/828371
“Alternative
Currency;” provided
that such requested currency is a lawful currency (other than
US
Dollars) that is readily available and freely transferable and convertible
into
US Dollars. In the case of any such request with respect to the making of
Eurocurrency Rate Loans, such request shall be subject to the approval of the
Administrative Agent and the Lenders.
(b) Any
such request shall be made to the Administrative Agent not later than 11:00
a.m., 20 Business Days prior to the date of the desired Committed Loan (or
such
other time or date as may be agreed by the Administrative Agent in its sole
discretion). In the case of any such request pertaining to Eurocurrency Rate
Loans, the Administrative Agent shall promptly notify each Lender thereof.
Each
Lender (in the case of any such request pertaining to Eurocurrency Rate Loans)
shall notify the Administrative Agent, not later than 11:00 a.m., ten Business
Days after receipt of such request whether it consents, in its sole discretion,
to the making of Eurocurrency Rate Loans in such requested
currency.
(c) Any
failure by a Lender to respond to such request within the time period specified
in the preceding sentence shall be deemed to be a refusal by such Lender to
permit Eurocurrency Rate Loans to be made in such requested currency. If the
Administrative Agent and all the Lenders consent to making Eurocurrency Rate
Loans in such requested currency, the Administrative Agent shall so notify
the
Borrowers and such currency shall thereupon be deemed for all purposes to be
an
Alternative Currency hereunder for purposes of any Committed Borrowings of
Eurocurrency Rate Loans. If the Administrative Agent shall fail to obtain
consent to any request for an additional currency under this Section
1.6,
the Administrative Agent shall promptly so notify the Borrowers.
Section
1.7 Change
of Currency.
(a) Each obligation of the Borrowers to make a payment denominated in the
national currency unit of any member state of the European Union that adopts
the
Euro as its lawful currency after the date hereof shall be redenominated into
Euro at the time of such adoption (in accordance with the EMU Legislation).
If,
in relation to the currency of any such member state, the basis of accrual
of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market
for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date
on
which such member state adopts the Euro as its lawful currency; provided
that if any Committed Borrowing in the currency of such member state is
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Committed Borrowing, at the end of the then current
Interest Period.
(b) Each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to
the
Euro.
(c) Each
provision of this Agreement also shall be subject to such reasonable changes
of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect a change in currency of any other country and any
relevant market conventions or practices relating to the change in
currency.
NYDOCS03/828371
Section
1.8 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
Section
2.1 Committed
Loans.
(a) Subject to the terms and conditions set forth herein, each Tranche A Lender
severally agrees to make loans in US Dollars or in one or more Alternative
Currencies (each such loan, a “Committed
Tranche A Loan”)
to the Tranche A Borrowers from time to time, on any Business Day during the
Tranche A Availability Period, in an amount not to exceed the amount of such
Lender’s Unused Tranche A Commitment at such time. Within the limits of each
Lender's Unused Tranche A Commitment, and subject to the other terms and
conditions hereof, the Tranche A Borrowers 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 Eurocurrency 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 in US Dollars or in one or more Alternative Currencies
(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 plus such Lender’s ratable
share of the Outstanding Amount of all Money Market Loans made to TCPR plus
such
Lender’s ratable share of the Outstanding Amount of all Swing Line Loans made to
TCPR 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 Eurocurrency Rate Loans,
as
further provided herein.
(c) Subject
to the terms and conditions set forth herein, each Tranche C Lender severally
agrees to make loans to TCCI in US Dollars or in one or more Alternative
Currencies, and (i) in the case of a Tranche C Lender willing and able to accept
Drafts, to create acceptances (“Bankers’
Acceptances”)
by accepting Drafts and to purchase such Bankers’ Acceptances in accordance with
Section
2.15(a)
and (ii) in the case of a Tranche C Lender which is unwilling or unable to
accept Drafts, to purchase completed Drafts, which will not be accepted by
the
Tranche C Lender or any other Tranche C Lender in accordance with Section
2.15(a)
from time to time, on any Business Day during the Tranche C Availability Period,
in an aggregate amount not to exceed at any time outstanding the amount of
such
Lender’s Tranche C Commitment; provided,
however,
that after giving effect to any Committed Borrowing made by the Tranche C
Lenders,
NYDOCS03/828371
(i)
the Total Outstandings applicable to TCCI shall not exceed the Aggregate Tranche
C Commitments, and (ii) the aggregate Outstanding Amount of the Committed
Tranche C Loans of any Tranche C Lender plus such Lender’s ratable share of the
Outstanding Amount of all Swing Line Loans made to TCCI shall not exceed such
Lender’s Tranche C Commitment. Within the limits of each Lender’s Tranche C
Commitment, and subject to the other terms and conditions hereof, TCCI may
borrow under this Section
2.1(c),
prepay under Section
2.4,
and reborrow under this Section
2.1(c).
Committed Tranche C Loans may be Base Rate Loans, Eurocurrency Rate Loans,
Canadian Prime Rate Loans, Bankers’ Acceptances or BA Equivalent Notes, as
further provided herein.
(d) Subject
to the terms and conditions set forth herein, each Tranche D Lender severally
agrees to make loans in US Dollars or in one or more Alternative Currencies
(each such loan, a “Committed
Tranche D Loan”)
to TLG from time to time, on any Business Day during the Tranche D Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount
of such Lender's Tranche D Commitment; provided,
however,
that after giving effect to any Committed Borrowing made by the Tranche D
Lenders, (i) the Total Outstandings applicable to TLG shall not exceed the
Aggregate Tranche D Commitments, and (ii) the aggregate Outstanding Amount
of
the Committed Tranche D Loans of any Tranche D Lender plus such Lender’s ratable
share of the Outstanding Amount of all Money Market Loans made to TLG plus
such
Lender’s ratable share of the Outstanding Amount of all Swing Line Loans made to
TLG shall not exceed such Lender's Tranche D Commitment. Within the limits
of
each Lender's Tranche D Commitment, and subject to the other terms and
conditions hereof, TLG may borrow under this Section
2.1(d),
prepay under Section
2.4,
and reborrow under this Section
2.1(d).
Committed Tranche D Loans may be Base Rate Loans or Eurocurrency Rate Loans,
as
further provided herein.
(e) After
giving effect to Committed Loans made pursuant to this Section
2.1,
the aggregate Outstanding Amount of all Loans (other than Money Market Loans)
made by such Lender or its Affiliates shall not exceed such Lender’s Commitment
Cap.
(a) Each
Committed Borrowing, each conversion of Committed Loans from one Type to the
other, and each continuation of Eurocurrency Rate Loans shall be made upon
the
applicable Borrower's irrevocable notice to the Administrative Agent (or
Canadian Sub-Agent, in the case of Tranche C), which may be given by telephone.
Each such notice must be received by the Administrative Agent or the Canadian
Sub-Agent, as applicable, not later than 10:00 a.m. (Pacific time), (i) three
Business Days prior to the requested date of any Borrowing of, conversion to
or
continuation of Eurocurrency Rate Loans denominated in US Dollars or of any
conversion of Eurocurrency Rate Loans denominated in US Dollars to Base Rate
Loans, (ii) four Business Days (or five Business Days in the case of a Special
Notice Currency) prior to the requested date of any Borrowing or continuation
of
Eurocurrency Rate Loans denominated in Alternative Currencies, (iii) on the
requested date of any Borrowing of or conversion of Eurocurrency Rate Loans
to
Base Rate Committed Loans, (iv) on the requested date of any Borrowing of
Canadian Prime Rate Loans and (v) as set forth in Section
2.15(a)
for Bankers’ Acceptances or BA Equivalent Notes.
Each telephonic notice by a Borrower pursuant to this
NYDOCS03/828371
Section
2.2(a)
must be confirmed promptly by delivery to the Administrative Agent or Canadian
Sub-Agent, as applicable, 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
or
Canadian Sub-Agent, as applicable. Except as otherwise provided in Section
2.15(a),
each Borrowing of, conversion to or continuation of Loans shall be (x) for
Loans
other than Tranche C Loans denominated in Canadian Dollars, in a principal
amount of US$50,000,000 or a whole multiple of US$5,000,000 in excess thereof
(or the Dollar Equivalent thereof); provided
that,
in the case of TMFNL, such amount shall not be less than the Dollar Equivalent
of EUR50,000 or (y) for Tranche C Loans denominated in Canadian Dollars, in
a
principal amount of CDN$5,000,000 or integral multiples of CDN$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
Eurocurrency 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, (v) if applicable, the duration of the Interest Period
with
respect thereto and (vi) the currency of the Committed Loans to be borrowed.
If
any Borrower fails to specify a currency in a Committed Loan Notice requesting
a
Borrowing, then the Committed Loans so requested shall be made in US Dollars.
If
any 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, (x) in the case of Loans denominated in Canadian Dollars, Canadian
Prime Rate Loans or (y) in the case of Loans denominated in a currency other
than Canadian Dollars, Base Rate Loans in an amount being the Dollar Equivalent
of such Loans; provided, however, that in the case of a failure to timely
request a continuation of Committed Loans denominated in an Alternative Currency
other than Canadian Dollars, such Loans shall be continued as Eurocurrency
Rate
Loans in their original currency with an Interest Period of one month. 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 Eurocurrency
Rate Loans. If the applicable Borrower requests a Borrowing of, conversion
to,
or continuation of Eurocurrency 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. No Committed Loan may be converted into or
continued as a Committed Loan denominated in a different currency, but instead
must be prepaid in the original currency of such Committed Loan and reborrowed
in the other currency.
(b) Following
receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each appropriate Lender of the contents thereof and the amount
(and currency) 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 or continuation of
Committed Loans denominated in a currency other than US Dollars, in each case
as
described in the preceding subsection. In the case of a Committed Borrowing,
each appropriate Tranche A Lender, Tranche B Lender and Tranche D Lender shall
make the amount of its Committed Loan available to the Administrative Agent,
and
each appropriate Tranche C Lender shall make the amount of its Committed Loan
available to the Canadian Sub-Agent, in
NYDOCS03/828371
Same
Day Funds at the Administrative Agent's
Office for the applicable currency or the office of the Canadian Sub-Agent
located in Toronto, Canada, as the case may be, not later than 1:00 p.m. on
the
Business Day specified, in the case of any Committed Loan denominated in US
Dollars, and not later than the Applicable Time specified by the Administrative
Agent in the case of any Committed Loan in an Alternative Currency in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section
4.2,
the Administrative Agent, or the Canadian Sub-Agent, as the case may be, shall
make all funds so received available to the applicable Borrower in like funds
as
received by the Administrative Agent or the Canadian Sub-Agent either by (i)
crediting the account of such Borrower on the books of Bank of America 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 or the Canadian Sub-Agent by such Borrower.
(c) Except
as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency
Rate
Loan. During the existence of an Event of Default, no Loans may be requested
as,
converted to or continued as Eurocurrency Rate Loans (whether in US Dollars
or
any Alternative Currency) without the consent of the applicable Required
Lenders, and the Required Lenders may demand that any or all of the then
outstanding Eurocurrency Rate Loans denominated in an Alternative Currency
be
prepaid, or redenominated into US Dollars in the amount of the Dollar Equivalent
thereof, on the last day of the then current Interest Period with respect
thereto.
(d) The
Administrative Agent shall promptly notify the applicable Borrower and the
appropriate Lenders of the interest rate applicable to any Interest Period
for
Eurocurrency Rate Loans upon determination of such interest rate. The
determination of the Eurocurrency 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 Bank of America’s prime rate used
in determining the Base Rate promptly following the public announcement of
such
change. At any time that Canadian Prime Rate Loans are outstanding, the Canadian
Sub-Agent shall notify TCCI and the Tranche C Lenders of any change in the
Canadian Prime Rate promptly following the public announcement of a change
in a
Canadian Reference Bank’s “prime rate” by any Canadian Reference
Bank.
(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 fifteen (15) 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,
the Tranche A Borrowers, TCPR or TLG may, as set forth in this Section, request
the appropriate Lenders during the Tranche A Availability Period, the Tranche
B
Availability Period or the Tranche D Availability Period, as applicable, to
make
offers to make Money Market Loans in US Dollars to such Borrower; provided,
however,
that after giving effect to any Money Market Borrowing (i) the Total
Outstandings applicable to the Tranche A Borrowers shall not exceed the
Aggregate
NYDOCS03/828371
Tranche
A Commitments, (ii) the Total Outstandings applicable to TCPR shall not exceed
the Aggregate Tranche B Commitments and (iii) the Total Outstandings applicable
to TLG shall not exceed the Aggregate Tranche D 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
any Tranche A Borrower, TCPR or TLG 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 US$50,000,000 or a larger multiple of US$5,000,000 (provided
that, in case of TMFNL, the aggregate amount of such Borrowing shall not be
less
than the Dollar Equivalent of EUR 50,000),
(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 appropriate Lenders by facsimile transmission an Invitation for
Money Market Quotes, which shall constitute an invitation by the applicable
Tranche A Borrower, TCPR or TLG, as applicable, 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.
(d) (i)
Each
Tranche A 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
made by a Tranche A Borrower, each Tranche B 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 made by TCPR, and each Tranche D 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 made by
TLG.
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
NYDOCS03/828371
case,
such other time or date as such Tranche A Borrower, TCPR or TLG, as applicable,
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 such Tranche
A
Borrower, TCPR or TLG, as applicable.
(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 US$5,000,000 or a larger multiple of
US$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 Eurocurrency 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 Tranche A Borrower,
TCPR or TLG, as applicable, 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
disregarded by the Administrative Agent unless such subsequent Money Market
Quote is submitted solely to correct a manifest error in such former Money
Market Quote. The Administrative Agent's notice to the applicable Borrower
shall
specify (i) the aggregate principal amount of Money Market Loans for which
offers have been received for each Interest Period specified in the related
Money Market Quote Request, (ii) the respective principal amounts and Money
Market Margins or Money Market Absolute Rates, as the case
NYDOCS03/828371
may
be, so offered and (iii) if applicable, limitations on the aggregate principal
amount of Money Market Loans for which offers in any single Money Market Quote
may be accepted.
(f) Not
later than 9:00 a.m. on the third Business Day prior to the proposed date of
Borrowing of Money Market LIBOR Loans or 10:00 a.m. on the Business Day of
the
proposed date of Borrowing of Money Market Absolute Rate Loans (or such other
time or date as the applicable Borrower and the Administrative Agent shall
have
mutually agreed and shall have notified to the Lenders not later than the date
of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the applicable Tranche A
Borrower, TCPR or TLG, as applicable, 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 US$50,000,000 or a larger multiple of US$5,000,000
(provided
that, in case of TMFNL, the aggregate amount of such Borrowing shall not be
less
than the Dollar Equivalent of EUR 50,000);
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
US$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) The
Tranche A Borrowers, TCPR and TLG may, upon notice to the Administrative Agent,
and TCCI may, upon notice to the Canadian Sub-Agent, at any time or from time
to
time voluntarily prepay Committed Loans (other than Bankers’ Acceptances, Drafts
and BA Equivalent Notes) 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 or the
Canadian Sub-Agent, as applicable, not later than 10:00 a.m. (Pacific time),
(A)
three Business Days prior to any date of prepayment of Eurocurrency Rate Loans
denominated in US Dollars, (B) four Business Days (or five, in the case of
prepayment of Loans denominated in Special Notice Currencies) prior to any
date
of prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies
and (C) on the date of prepayment of Base Rate or the Canadian Prime Rate
Committed Loans or Money Market Loans bearing interest at the Base Rate pursuant
to Section
3.2;
(ii) any prepayment of Loans other than Tranche C Loans denominated in Canadian
Dollars shall be in a principal amount of US$50,000,000 or a whole multiple
of
US$1,000,000 in excess thereof; and (iii) any prepayment
NYDOCS03/828371
of
Tranche C Loans denominated in Canadian Dollars shall be in a principal amount
of CDN$5,000,000 or a whole multiple of CDN$500,000 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 are Committed Loans
or Money Market Loans, and the Type(s) of Loans to be prepaid. The
Administrative Agent or the Canadian Sub-Agent, as the case may be, will
promptly notify each appropriate Lender of its receipt of each such notice
and
the contents thereof with respect to Committed Loans, and of the amount of
such
Lender's
Pro Rata Share of such prepayment of such Committed Loans. The Administrative
Agent will promptly notify each Lender that has made a Money Market Loan that
is
to be prepaid of the receipt by the Administrative Agent of each notice and
the
contents thereof with respect to such Money Market Loan and the contents thereof
and of the amount of such prepayment of such Money Market Loan. If such notice
is given by a Borrower, such Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by
all
accrued interest thereon, together with any additional amounts required pursuant
to Section
3.5.
Each such prepayment of Committed Loans shall be applied to the Committed Loans
of the appropriate Lenders in accordance with their respective Pro Rata Shares.
Each such prepayment of Money Market Loans shall be applied ratably to the
Money
Market Loans of the Lenders that made such Loans.
(b) (i)
If for any reason the Total Outstandings applicable to the Tranche A Borrowers
at any time exceed the Aggregate Tranche A Commitments then in effect, the
Tranche A Borrowers 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. (iii)
If
for any reason the Total Outstandings applicable to TCCI at any time exceed
the
Aggregate Tranche C Commitments then in effect, TCCI shall (x) immediately
prepay Loans in an aggregate amount equal to such excess and (y) to the extent
necessary after TCCI has made all prepayments required pursuant to clause (x),
cash collateralize the outstanding Bankers’ Acceptances, Drafts and BA
Equivalent Notes in accordance with Section 2.15(n) in any aggregate amount
sufficient to eliminate such excess. (iv) If for any reason the Total
Outstandings applicable to TLG at any time exceed the Aggregate Tranche D
Commitments then in effect, TLG shall immediately prepay Loans in an aggregate
amount equal to such excess.
(c) Any
Borrower may, upon notice to the Swing Line Agent (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans made to it in whole or in part without premium or penalty;
provided
that (i) such notice must be received by the Swing Line Agent and the
Administrative Agent not later than 10:00 a.m. (London, England time) in the
case of any Swing Line Loans funded in Europe or 10:00 a.m. (Pacific time)
in
the case of any Swing Line Loans funded in North America on the date of the
prepayment, and (ii) any such prepayment shall be in a minimum principal amount
of US$1,000,000. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the applicable Borrower, such Borrower
shall make such prepayment and the payment amount specified in such notice
shall
be due and payable on the date specified therein.
NYDOCS03/828371
(d) If
the Administrative Agent notifies at any time (i) the Tranche A Borrowers that
the Total Outstandings under the Tranche A Facility at such time exceed an
amount equal to 105% of the Aggregate Commitments then in effect in respect
of
Tranche A, (ii) TCPR that the Total Outstandings under the Tranche B Facility
at
such time exceed an amount equal to 105% of the Aggregate Commitments then
in
effect in respect of Tranche B, (iii) TCCI that the Total Outstandings under
the
Tranche C Facility at such time exceed an amount equal to 105% of the Aggregate
Commitments then in effect in respect of Tranche C, or (iv) TLG that the Total
Outstandings under the Tranche D Facility at such time exceed an amount equal
to
105% of the Aggregate Commitments then in effect in respect of Tranche D, then
in each case, within two Business Days after receipt of such notice, the
applicable Borrower(s) shall prepay Loans and in an aggregate amount sufficient
to reduce such Outstanding Amount as of such date of payment to an amount not
to
exceed 100% of the Aggregate Commitments then in effect in respect of such
Tranche.
(e) If
at any time Section
2.4(d)
does not apply to any Tranche, and the Administrative Agent notifies the
Borrowers that the aggregate of a Lender’s Tranche A Loans, Tranche B Loans,
Tranche C Loans and Tranche D Loans plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
exceeds such Lender’s Commitment Cap, then within two Business Days after
receipt of such notice, then (i) the Tranche A Borrowers shall prepay Tranche
A
Loans in an aggregate amount sufficient to reduce the aggregate of such Lender’s
Tranche A Loans, Tranche B Loans, Tranche C Loans and Tranche D Loans
plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
to an amount not to exceed 100% of such Lender’s Commitment Cap then in effect,
(ii) TCPR shall prepay Tranche B Loans in an aggregate amount sufficient to
reduce the aggregate of such Lender’s Tranche A Loans, Tranche B Loans, Tranche
C Loans and Tranche D Loans plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
to an amount not to exceed 100% of such Lender’s Commitment Cap then in effect,
(iii) TCCI shall prepay Tranche C Loans in an aggregate amount sufficient to
reduce the aggregate of such Lender’s Tranche A Loans, Tranche B Loans, Tranche
C Loans and Tranche D Loans plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
to an amount not to exceed 100% of such Lender’s Commitment Cap then in effect
and (iv) TLG shall prepay Tranche D Loans in an aggregate amount sufficient
to
reduce the aggregate of such Lender’s Tranche A Loans, Tranche B Loans, Tranche
C Loans and Tranche D Loans plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans;
provided that each Borrower shall be deemed to have met its obligations under
this Section 2.4(e) once the aggregate amount of such Lender’s Tranche A Loans,
Tranche B Loans, Tranche C Loans and Tranche D Loans plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
has been reduced to an amount not greater than 100% of such Lender’s Commitment
Cap then in effect.
Section
2.5 Termination
or Reduction of Commitments.
The Tranche A Borrowers 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, 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, TCCI may, upon notice
to
the
NYDOCS03/828371
Canadian
Sub-Agent and the Administrative Agent, terminate the Aggregate Tranche C
Commitments, or from time to time permanently reduce the Aggregate Tranche
C
Commitments and TLG may, upon notice to the Administrative Agent, terminate
the
Aggregate Tranche D Commitments, or from time to time permanently reduce the
Aggregate Tranche D Commitments; provided
that (i) any such notice shall be received by the Administrative Agent or the
Canadian Sub-Agent, as applicable, not later than 10:00 a.m. (Pacific time),
three Business Days prior to the date of termination or reduction, (ii) any
such
partial reduction shall be in an aggregate amount of US$25,000,000 or any whole
multiple of US$5,000,000 in excess thereof, (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, and (iv) if, after giving effect to any reduction of the Aggregate
Commitments, the Swing Line Sublimit exceeds the amount of the Aggregate
Commitments, such Sublimit shall be automatically reduced by the amount of
such
excess. 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 Administrative Agent for the account of 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.
(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 applicable to such Borrower.
(c) Each
Borrower shall repay each Swing Line Loan made to it on the earlier to occur
of
(i) the date ten Business Days after such Loan is made and (ii) the Revolving
Maturity Date applicable to such Borrower.
Section
2.7 Interest.
(a) Subject
to the provisions of subsection (b) below, (i) subject to Section
3.2,
each Eurocurrency Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurocurrency Rate for such Interest Period plus
the Applicable Rate plus
in the case of a Eurocurrency Rate Loan of any Lender which is lent from a
Lending Office in the United Kingdom or a Participating Member State, the
Mandatory Cost; (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) each Canadian Prime Rate Loan shall bear interest
on
the outstanding principal amount thereof from the applicable borrowing date
at a
rate per annum equal to the Canadian Prime Rate plus the Applicable Rate; (iv)
each Swing Line Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum
NYDOCS03/828371
equal
to the Swing Line Rate; (v) 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 Eurocurrency Rate for such Interest Period plus
or
minus
the Money Market Margin quoted by the Lender making such Loan; and (vi) 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.
TMCC, for the account of the Borrowers, shall pay or cause to be paid (i) to
the
Administrative Agent for the account of each Tranche A Lender in accordance
with
its Pro Rata Share, a facility fee in US Dollars 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 and Swing Line Loans made to the
Tranche A Borrowers), which fee shall accrue at all times during the Tranche
A
Availability Period (and thereafter so long as any Tranche A Loans or Swing
Line
Loans made to any Tranche A Borrower remain outstanding), including at any
time
during which one or more of the conditions in Article
IV
is not met, (ii) to the Administrative Agent for the account of each Tranche
B
Lender in accordance with its Pro Rata Share, a facility fee in US Dollars
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 and Swing Line Loans made to TCPR),
which fee shall accrue at all times during the Tranche B Availability Period
(and thereafter so long as any Tranche B Loans or Swing Line Loans made to
TCPR
remain outstanding), including at any time during which one or more of the
conditions in Article
IV
is not met, (iii) to the Canadian Sub-Agent for the account of each Tranche
C
Lender in accordance with its Pro Rata Share, a facility fee in US Dollars
equal
to the Applicable Rate times
the actual daily
NYDOCS03/828371
amount
of the Aggregate Tranche C Commitments, regardless of usage (or, if the
Aggregate Tranche C Commitments have terminated, on the Outstanding Amount
of
all Tranche C Loans and Swing Line Loans made to TCCI), which fee shall accrue
at all times during the Tranche C Availability Period (and thereafter so long
as
any Tranche C Loans or Swing Line Loans made to TCCI remain outstanding),
including at any time during which one or more of the conditions in Article
IV
is not met, and (iv) to the Administrative Agent for the account of each Tranche
D Lender in accordance with its Pro Rata Share, a facility fee in US Dollars
equal to the Applicable Rate times
the actual daily amount of the Aggregate Tranche D Commitments, regardless
of
usage (or, if the Aggregate Tranche D Commitments have terminated, on the
Outstanding Amount of all Tranche D Loans and Swing Line Loans made to TLG),
which fee shall accrue at all times during the Tranche D Availability Period
(and thereafter so long as any Tranche D Loans or Swing Line Loans made to
TLG
remain outstanding), including at any time during which one or more of the
conditions in Article
IV
is not met. Facility fees shall be calculated quarterly in arrears, and are
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 Maturity Date (and, if applicable, thereafter on
demand). Notwithstanding the above, the facility fees payable to each Lender
shall be calculated with respect to such Lender’s Commitment Cap, such that in
no event shall the aggregate amount of the facility fees paid to any Lender
pursuant to this Section
2.8(a)
exceed the facility fees that would have been payable to such Lender if the
aggregate amount of such Lender’s Commitments were equal to the amount of its
Commitment Cap.
(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 (a) of interest for Base Rate Loans when the Base Rate is
determined by Bank of America’s “prime rate” and (b) of interest for Canadian
Prime Rate Loans shall be made on the basis of a year of 365 or 366 days, as
the
case may be, and actual days elapsed. All computations of Drawing Fees shall
be
made on the basis of a year of 365 or 366 days, as applicable, and the term
to
maturity of the applicable Draft. All computations of a Drawing Purchase Price
shall be made on the basis of a year of 365 days, and the term to maturity
of
the applicable Draft. 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), or, in the case of interest in respect of Committed Loans
denominated in Alternative Currencies as to which market practice differs from
the foregoing, in accordance with such market practice. 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.
NYDOCS03/828371
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 schedules to its Note and endorse thereon the date, Type
(if
applicable), amount, currency and maturity of its Loans and payments with
respect thereto.
Section
2.11 Payments
Generally.
(a) All
payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein and except with respect to principal of
and
interest on Loans denominated in an Alternative Currency, all payments by the
Borrowers hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s
(or in the case of Tranche C Lenders, the Canadian Sub-Agent’s) Office in US
Dollars and in Same Day Funds not later than 2:00 p.m. (or in the case of the
Tranche C Lenders, not later than 12:00 p.m.) on the date specified herein.
Except as otherwise expressly provided herein, all payments by the Borrowers
hereunder with respect to principal and interest on Loans denominated in an
Alternative Currency shall be made to the Administrative Agent (or in the case
of TCCI, the Canadian Sub-Agent), for the account of the respective Lenders
to
which such payment is owed, at the applicable Administrative Agent’s Office or
Canadian Sub-Agent’s Office in such Alternative Currency and in Same Day Funds
not later than the Applicable Time specified by the Administrative Agent on
the
dates specified herein. Except as otherwise expressly provided herein, all
payments by (i) the Tranche A Borrowers, TCPR and TLG shall be made to the
Administrative Agent and (ii) TCCI shall be made to the Canadian Sub-Agent,
for
the account of the respective Lenders to which such payment is owed. Without
limiting the generality of the foregoing, the Administrative Agent may require
that (x) any payment by any Borrower due under this Agreement, other than any
payment to be made in respect of the Tranche C Facility, be made in the United
States and (y) any payments to be made by TCCI in respect of the Tranche C
Facility be made in Canada. If, for any reason, any Borrower is prohibited
by
any Law from making any required payment hereunder in an Alternative Currency,
such Borrower shall make such payment in US Dollars in the Dollar Equivalent
of
the Alternative Currency payment amount. The Administrative Agent or the
Canadian Sub-Agent, as the case may be, will promptly distribute to each Lender
its Pro Rata Share (or other applicable share as provided herein) of such
payment in like funds as
NYDOCS03/828371
received
by wire transfer to such Lender's Lending Office. All payments received by
the
Administrative Agent or the Canadian Sub-Agent (i) after 2:00 p.m., in the
case
of payments in US Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent or the Canadian Sub-Agent, in the case of payments in
an
Alternative Currency, shall in each case 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. Whenever any payment hereunder in respect of Bankers’ Acceptances,
Drafts or BA Equivalent Notes shall be stated to be due on a day other than
a
Canadian Business Day, such payment shall be made on the next succeeding
Canadian Business Day.
(c) Unless
a Borrower or any Lender has notified the Administrative Agent or the Canadian
Sub-Agent, as the case may be, prior to the time any payment is required to
be
made by it to the Administrative Agent or the Canadian Sub-Agent hereunder,
that
such Borrower or such Lender, as the case may be, will not make such payment,
the Administrative Agent or the Canadian Sub-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 or the Canadian
Sub-Agent in Same Day Funds, then:
(i) if
a Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Administrative Agent or the Canadian Sub-Agent, as the case may
be,
the portion of such assumed payment that was made available to such Lender
in
Same Day Funds, together with interest thereon in respect of each day from
and
including the date such amount was made available by the Administrative Agent
or
the Canadian Sub-Agent to such Lender to the date such amount is repaid to
the
Administrative Agent or Canadian Sub-Agent in Same Day Funds at the Overnight
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 or the Canadian Sub-Agent, as the case may
be,
the amount thereof in Same Day Funds, together with interest thereon for the
period from the date such amount was made available by the Administrative Agent
or the Canadian Sub-Agent to the applicable Borrower to the date such amount
is
recovered by the Administrative Agent or the Canadian Sub-Agent (the
“Compensation
Period”)
at a rate per annum equal to the Overnight Rate from time to time in effect.
If
such Lender pays such amount to the Administrative Agent or the Canadian
Sub-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
or the Canadian Sub-Agent’s demand therefor, the Administrative Agent or the
Canadian Sub-Agent may make a demand therefor upon the applicable Borrower,
and
such Borrower shall pay such amount to the Administrative Agent or the Canadian
Sub-Agent, together with interest thereon for the Compensation Period at a
rate
per annum equal to the rate of interest
NYDOCS03/828371
applicable
to the applicable Borrowing. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent, the Canadian Sub-Agent or any Borrower may
have
against any Lender as a result of any default by such Lender
hereunder.
A
notice of the Administrative Agent or the Canadian Sub-Agent, as the case may
be, to any Lender or any Borrower with respect to any amount owing under this
subsection (c) shall be conclusive, absent manifest error.
(d) If
any Lender makes available to the Administrative Agent or the Canadian
Sub-Agent, as the case may be, 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 or the Canadian Sub-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 or the Canadian Sub-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 and to fund
participations in Swing Line Loans are several and not joint. The failure of
any
Lender to make any Committed Loan or to fund participations in Swing Line Loans
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
or
to fund participations in Swing Line Loans.
(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.
(g) For
the purposes of the Interest
Act
(Canada) and disclosure under such act, whenever any interest or fees to be
paid
by TCCI under this Agreement is to be calculated on the basis of a period of
time that is less than a calendar year, the yearly rate of interest to which
the
rate determined pursuant to such calculation is equivalent is the rate so
determined multiplied by the number of days in the calendar year in which the
same is to be ascertained and divided by the actual number of days in such
period of time.
(h) Notwithstanding
any provision of this Agreement, in no event shall the aggregate “interest” (as
defined in section 347 of the Criminal
Code
(Canada)) payable by TCCI under this Agreement exceed the effective annual
rate
of interest on the “credit advanced” (as defined in that section) under this
Agreement lawfully permitted by that section and, if any payment, collection
or
demand pursuant to this Agreement in respect of “interest” (as defined in that
section) payable by TCCI is determined to be contrary to the provisions of
that
section, such payment, collection or demand shall be deemed to have been made
by
mutual mistake of TCCI, the Administrative Agent and the Lenders and the amount
of such payment or collection shall be refunded to TCCI. For the purposes of
this Agreement, the effective annual rate of interest shall be determined in
accordance with generally accepted actuarial practices and principles over
the
NYDOCS03/828371
relevant
term and, in the event of dispute, a certificate of a Fellow of the Canadian
Institute of Actuaries appointed by the Administrative Agent will be
prima
facie
evidence of such rate.
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, or the participations
in Swing Line Loans held by it resulting in such Lender’s receiving payment of a
proportion of the aggregate amount of such Committed Loans or participations
and
accrued interest thereon greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent or the Canadian Sub-Agent,
as the case may be, of such fact, and (b) purchase from the other Lenders such
participations in the Committed Loans and subparticipations in Swing Line Loans
and Swing Line 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 and Swing Line 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 or subparticipation 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 or subparticipation as fully as if such
Lender were the direct creditor of such Borrower in the amount of such
participation or subparticipation. The Administrative Agent or the Canadian
Sub-Agent, as the case may be, will keep records (which shall be conclusive
and
binding in the absence of manifest error) of participations or subparticipation
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation
or
subparticipation pursuant to this Section shall from and after such purchase
have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
Section
2.13 Extension
of Maturity Date.
(a) Not
earlier than 60 days prior to, nor later than 30 days prior to, the first
anniversary of the Closing Date, the Borrowers may, upon notice to the
Administrative Agent (which shall promptly notify the appropriate Lenders),
request a one year extension of the Revolving Maturity Date then in effect.
Not
earlier than 60 days prior to, nor later than 30 days prior to, the second
anniversary of the Closing Date, the Borrowers may, upon notice to the
Administrative Agent (which shall promptly notify the appropriate Lenders),
request a one year extension of the Revolving Maturity Date then in effect.
No
earlier than 30 days prior to, nor later than 20 days prior to such anniversary
of the Closing Date, each appropriate Lender shall
NYDOCS03/828371
notify
the Administrative Agent whether or not it consents to such extension (which
consent may be given or withheld in such Lender’s sole and absolute discretion).
Any Lender not responding within the above time period shall be deemed not
to
have consented to such extension. No later than 15 days prior to such
anniversary, the Administrative Agent shall promptly notify the applicable
Borrower and the appropriate Lenders of the Lenders’ responses.
(b) The
Revolving Maturity Date applicable to the Borrowers shall be extended only
if
Lenders holding at least 51% of all outstanding commitments (after giving effect
to any replacements of Lenders permitted herein) (the “Consenting
Lenders”)
have consented thereto. If so extended, the Revolving Maturity Date applicable
to the Borrowers, as to the Consenting Lenders, shall be extended to a date
one
year from the Revolving Maturity Date then in effect, effective as of such
existing Revolving Maturity Date (such existing Revolving Maturity Date being
the “Revolving
Extension Effective Date”).
The Administrative Agent and the Borrowers shall promptly confirm to the Lenders
such extension and the Revolving Extension Effective Date. As a condition
precedent to such extension, each Borrower shall deliver to the Administrative
Agent a certificate of such Borrower dated as of the Revolving Extension
Effective Date (in sufficient copies for each appropriate Lender) signed by
a
Responsible Officer of such Borrower (i) certifying and attaching the
resolutions adopted by the Borrower approving or consenting to such extension
and (ii) certifying that, before and after giving effect to such extension,
(A)
the representations and warranties of such Borrower contained in Article
V
and the other Loan Documents are true and correct on and as of the Revolving
Extension Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this
Section
2.13,
the representations and warranties contained in subsections (a) and (b) of
Section
5.4
shall be deemed to refer to the most recent statements furnished pursuant to
subsections (a) and (b), respectively, of Section
6.1,
and (B) no Default with respect to such Borrower exists.
(c) If
any Lender declines, or is deemed to have declined, to consent to such
extension, such Lender’s Commitment will be terminated on Revolving Extension
Effective Date. Upon the Revolving Extension Effective Date, the Borrowers
may
accept commitments from third party financial institutions acceptable to the
Administrative Agent and the swingline participants in an amount equal to the
amount of the Commitment of any such declining Lender, provided that the
Consenting Lenders shall have the right to increase their commitments up to
the
amount of such declining Lender's Commitment before the Borrowers shall be
permitted to substitute any other financial institutions for such declining
Lender.
(d) This
Section shall supersede any provisions in Section
2.12
or Section
9.1
to the contrary.
Section
2.14 Increase
in Commitments.
(a) Provided
there exists no Default applicable to a Borrower (or in the case of a Tranche
A
Borrower, provided there exists no Default applicable to any Tranche 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
▇▇▇▇▇▇▇▇/▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Commitments applicable to such Borrower (or, in the case of a Tranche A
Borrower, to all Tranche A Borrowers) to an amount (for all such requests)
not
exceeding (w) in the case of the Tranche A Commitments, US$9,066,666,667, (x)
in
the case of the Tranche B Commitments, US$666,666,667, (y) in the case of the
Tranche C Commitments, US$666,666,667 and (z) in the case of the Tranche D
Commitments, US$666,666,667; provided,
that in no event shall the Aggregate Commitments applicable to all Borrowers
exceed US$10,000,000,000. 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 (or, where a request
was made by a Tranche A Borrower, all of the Tranche A Borrowers) 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; provided that the minimum commitment of each such Eligible
Assignee is not less than US$25,000,000.. 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 the 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.
(c) This
Section shall supersede any provisions in Sections
2.12
or 9.1
to the contrary.
Section
2.15 Drawings
of Bankers’ Acceptances, Drafts and BA Equivalent Notes.
NYDOCS03/828371
(a) Request
for Drawing.
Each Drawing shall be made on notice, given not later than 11:00 A.M. (Toronto
time) on a Canadian Business Day at least two Canadian Business Days prior
to
the date of the proposed Drawing, by TCCI to the Canadian Sub-Agent, which
shall
give each Tranche C Lender prompt notice thereof by telecopier. Each notice
of a
Drawing shall be in writing (including by telecopier), in substantially the
form
of Exhibit A-1 hereto, specifying therein the requested (i) date of such Drawing
(which shall be a Canadian Business Day), (ii) aggregate Face Amount of such
Drawing and (iii) initial BA Maturity Date for each Bankers’ Acceptance and
Draft comprising part of such Drawing; provided,
however,
that, if the Canadian Sub-Agent determines in good faith (which determination
shall be conclusive and binding upon TCCI) that the Drafts to be accepted and
purchased (or purchased, as the case may be) as part of any Drawing cannot,
due
solely to the requested aggregate Face Amount thereof, be accepted and/or
purchased ratably by the Tranche C Lenders in accordance with Section 2.01(c),
then the aggregate Face Amount of such Bankers’ Acceptances to be created and
purchased and Drafts to be purchased shall be reduced to such lesser amount
as
the Canadian Sub-Agent determines will permit such Drafts comprising part of
such Drawing to be so accepted and purchased (or to be purchased, as the case
may be). The Canadian Sub-Agent agrees that it will, as promptly as practicable,
notify TCCI of the unavailability of Bankers’ Acceptances. Each Draft in
connection with any requested Drawing (A) shall be in a minimum amount of
CDN$5,000,000 or an integral multiple of CDN$1,000,000 in excess thereof, and
(B) shall be dated the date of the proposed Drawing. Each Tranche C Lender
shall, before 1:00 P.M. (Toronto time) on the date of each Drawing, (i) complete
one or more Drafts in accordance with the related Committed Loan Notice, accept
such Drafts and purchase the Bankers’ Acceptances created thereby for the
Drawing Purchase Price; or (ii) complete one or more Drafts in accordance with
the Drawing Notice and purchase such Drafts for the Drawing Purchase Price
and
shall, before 1:00 P.M. (Toronto time) on such date, make available for the
account of its Applicable Lending Office to the Canadian Sub-Agent at its
Canadian Sub-Agent’s Office, in same day funds, the Drawing Purchase Price
payable by such Tranche C Lender for such Drafts less the Drawing Fee payable to
such Tranche C Lender with respect thereto under Section 2.15(b). Upon the
fulfillment of the applicable conditions set forth in Section 4.2, the Canadian
Sub-Agent will make the funds it has received from the Tranche C Lenders
available to TCCI at the applicable Canadian Sub-Agent’s Office.
(b) Drawing
Fees.
TCCI shall, on the date of each Drawing and on the date of each renewal of
any
outstanding Bankers’ Acceptances or BA Equivalent Notes, pay to the Canadian
Sub-Agent, in Canadian Dollars, for the ratable account of the Tranche C Lenders
accepting Drafts and purchasing Bankers’ Acceptances or purchasing Drafts which
have not been accepted by any Tranche C Lender, the Drawing Fee with respect
to
such Drafts.
TCCI irrevocably authorizes each such Tranche C Lender to deduct the Drawing
Fee
payable with respect to each Draft of such Tranche C Lender from the Drawing
Purchase Price payable by such Tranche C Lender in respect of such Draft in
accordance with this Section 2.15 and to apply such amount so withheld to
the payment of such Drawing Fee for the account of TCCI and, to the extent
such
Drawing Fee is so withheld and legally permitted to be so applied, TCCI’s
obligations under the preceding sentence in respect of such Drawing Fee shall
be
satisfied.
NYDOCS03/828371
(c)
Limitations
on Drawings.
Anything in Section 2.15(a) to the contrary notwithstanding, TCCI may not
select a Drawing if the obligation of the Tranche C Lenders to purchase and
accept Bankers’ Acceptances shall then be suspended pursuant to
Section 2.15(e) or 3.2(b).
(d) Binding
Effect of Committed Loan Notices.
Each Committed Loan Notice for a Drawing shall be irrevocable and binding on
TCCI. In the case of any proposed Drawing, TCCI shall indemnify each Tranche
C
Lender (absent any gross negligence by the Tranche C Lender) against any loss,
cost or expense incurred by such Tranche C Lender as a result of any failure
to
fulfill on or before the date specified in the Committed Loan Notice for such
Drawing the applicable conditions set forth in Section 4.2, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation
or
reemployment of deposits or other funds acquired by such Tranche C Lender to
fund the Drawing Purchase Price to be paid by such Tranche C Lender for Drafts
when, as a result of such failure, such Drafts are not issued on such date
(but,
in any event, excluding any loss of profit and the Drawing Fee applicable to
such Drafts).
(e) Circumstances
Making Bankers’ Acceptances Unavailable.
If the Canadian Sub-Agent in good faith determines that for any reason a market
for Bankers’ Acceptances does not exist at any time or the Tranche C Lenders
cannot for other reasons, after reasonable efforts, readily sell Bankers’
Acceptances or perform their other obligations under this Agreement with respect
to Bankers’ Acceptances, the Canadian Sub-Agent will promptly so notify TCCI and
each Tranche C Lender. Thereafter, TCCI’s right to request the acceptance and/or
purchase of Drafts shall be and remain suspended until the Canadian Sub-Agent
determines and notifies TCCI and each Tranche C Lender that the condition
causing such determination no longer exists.
(f) Presigned
Draft Forms.
To enable the Tranche C Lenders to create Bankers’ Acceptances or purchase
Drafts, as the case may be, in accordance with Section 2.01(c) and this
Section 2.15, TCCI hereby appoints each Tranche C Lender as its attorney to
sign and endorse on its behalf (for the purpose of acceptance and/or purchase
of
Drafts pursuant to this Agreement), in handwriting or by facsimile or mechanical
signature as and when deemed necessary by such Tranche C Lender, blank forms
of
Drafts. In this respect, it is each Tranche C Lender’s responsibility to
maintain an adequate supply of blank forms of Drafts for acceptance under this
Agreement. TCCI recognizes and agrees that all Drafts signed and/or endorsed
on
its behalf by a Tranche C Lender shall bind TCCI as fully and effectually as
if
signed in the handwriting of and duly issued by the proper signing officers
of
TCCI. Each Tranche C Lender is hereby authorized (for the purpose of acceptance
and/or purchase of Drafts pursuant to this Agreement) to complete and issue
such
Drafts endorsed in blank in such face amounts as may be determined by such
Tranche C Lender; provided
that the aggregate amount thereof is equal to the aggregate amount of Drafts
required to be purchased by such Tranche C Lender. On request by TCCI, a Tranche
C Lender shall cancel all forms of Drafts which have been pre-signed or
pre-endorsed by or on behalf of TCCI and which are held by such Tranche C Lender
and have not yet been issued in accordance herewith. Each Tranche C Lender
further agrees to retain such records in the manner and/or the statutory periods
provided in the various Canadian provincial or federal statutes and regulations
which apply to such Tranche C Lender. Each Tranche C Lender
NYDOCS03/828371
shall
maintain a record with respect to Drafts held by it in blank hereunder, voided
by it for any reason, accepted and purchased by it hereunder, and cancelled
at
their respective maturities. Each Tranche C Lender agrees to provide such
records to TCCI at TCCI’s expense upon request. Drafts shall be signed by a duly
authorized officer or officers of TCCI or by its attorneys, including its
attorneys appointed pursuant to this Section 2.15(f). Notwithstanding that
any
person whose signature appears on any Drafts as a signatory for TCCI may no
longer be an authorized signatory for TCCI at the date of issuance of a Drafts
,
such signature shall nevertheless be valid and sufficient for all purposes
as if
such authority had remained in force at the time of such issuance, and any
such
Drafts so signed shall be binding on TCCI.
(g) Distribution
of Bankers’ Acceptances.
Bankers’ Acceptances and Drafts purchased by a Tranche C Lender in accordance
with the terms of Section 2.01(c) and this Section 2.15 may, in such
Tranche C Lender’s sole discretion, be held by such Tranche C Lender for its own
account until the applicable BA Maturity Date or sold, rediscounted or otherwise
disposed of by it at any time prior thereto in any relevant market
therefor.
(h) Failure
to Fund in Respect of Drawings.
The failure of any Tranche C Lender to fund the Drawing Purchase Price to be
funded by it as part of any Drawing shall not relieve any other Tranche C Lender
of its obligation hereunder to fund its Drawing Purchase Price on the date
of
such Drawing, but no Tranche C Lender shall be responsible for the failure
of
any other Tranche C Lender to fund the Drawing Purchase Price to be funded
or
made, as the case may be by such other Tranche C Lender on the date of any
Drawing.
(i) Issue
of BA Equivalent Notes.
TCCI shall, at the request of a Tranche C Lender, issue one or more non-interest
bearing promissory notes (each a “BA
Equivalent Note”)
payable on the date of maturity of the unaccepted Draft referred to below,
in
such form as such Tranche C Lender may specify, in a principal amount equal
to
the Face Amount of, and in exchange for, any unaccepted Drafts which such
Tranche C Lender has purchased or has arranged to have purchased in accordance
with Section 2.1(c).
(j) Payment,
Conversion or Renewal of Bankers’ Acceptances.
Upon the maturity of a Bankers’ Acceptance, Draft or BA Equivalent Note, TCCI
may (i) elect to issue a replacement Bankers’ Acceptance, Draft or BA Equivalent
Note by giving a Drawing Notice in accordance with Section 2.15(a), (ii) elect
to have all or a portion of the Face Amount of such Bankers’ Acceptance, Draft
or BA Equivalent Note converted to a Canadian Prime Rate Loan, by giving a
Notice of Borrowing in accordance with Section 2.2, or (iii) pay, on or before
10:00 a.m. (Toronto time) on the maturity date for such Bankers’ Acceptance,
Draft or BA Equivalent Note, an amount in Canadian Dollars equal to the Face
Amount of such Bankers’ Acceptance, Draft or BA Equivalent Note (notwithstanding
that a Tranche C Lender may be the holder thereof at maturity). Any such payment
shall satisfy TCCI’s obligations under the Bankers’ Acceptance, Draft or BA
Equivalent Note to which it relates and the relevant Lender shall thereafter
be
solely responsible for the payment of such Bankers’ Acceptances, Drafts or BA
Equivalent Notes.
(k) Automatic
Conversion.
If TCCI fails to pay any Bankers’ Acceptance, Draft or BA Equivalent Note when
due, or to issue a replacement Bankers’ Acceptance, Draft or BA Equivalent Note
in the Face Amount of such Bankers’ Acceptance, Draft or BA Equivalent Note
pursuant to Section 2.15 (j), the unpaid amount due and payable in respect
thereof shall be
NYDOCS03/828371
converted,
as of such date, and without any necessity for TCCI to give a Notice of
Borrowing in accordance with Section 2.2, to a Canadian Prime Rate Loan made
by
the Tranche C Lenders ratably under this Agreement and shall bear interest
calculated and payable as provided in Section 2.7
(l) Payment
of Bankers Acceptances on Default.
In
the event that the maturity of outstanding Bankers’ Acceptances, Drafts and BA
Equivalent Notes is accelerated pursuant to Section 6.01, TCCI shall pay to
the
Canadian Sub-Agent in Canadian Dollars in same-day funds the aggregate principal
amount of all such Bankers’ Acceptances, Drafts and BA Equivalent Notes in
satisfaction of its obligations in respect thereof.
(m) Inconsistencies.
In the event of any inconsistency between the provisions of this Section 2.15
and any other provision of Article II with respect to Bankers’ Acceptances or BA
Equivalent Notes, the provisions of this Section 2.15 shall
prevail.
Section
2.16 Swing
Line Loans.
(a) The
Swing Line.
Subject to the terms and conditions set forth herein, each Swing Line Lender
severally agrees, in reliance upon the agreements of the other Lenders set
forth
in this Section
2.16
to make loans in US Dollars or any Alternative Currency (each such loan, a
“Swing
Line Loan”)
to the Borrowers from time to time on any Business Day during the Availability
Period applicable to such Borrower in an aggregate amount not to exceed at
any
time outstanding (i) for each Swing Line Lender, such Swing Line Lender’s Swing
Line Commitment or (ii) for all Swing Line Loans, the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated
with the ratable share of the Outstanding Amount of Committed Loans and Money
Market Loans of the Lender acting as Swing Line Lender, may exceed the amount
of
such Lender’s Commitments; provided,
however,
that after giving effect to any Swing Line Loan, (i) the Total Outstandings
in respect of the Tranche A Borrowers, TCPR, TCCI or TLG, respectively, shall
not exceed the applicable Aggregate Commitments, (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender under the Tranche A
Commitments, Tranche B Commitments, Tranche C Commitments or Tranche D
Commitments, as applicable, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
to the applicable Borrower(s) shall not exceed such Lender’s Commitment
applicable to such Borrower(s) and (iii) the aggregate Outstanding Amount of
Committed Loans of any Lender under the Tranche A Facility, Tranche B Facility,
Tranche C Facility and Tranche D Facility, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Commitment Cap and provided,
further,
that the Borrowers shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. Each Swing Line Borrowing shall
consist of borrowings made from the several Swing Line Lenders ratably to their
respective Swing Line Commitments. Within the foregoing limits, and subject
to
the other terms and conditions hereof, the Borrowers may borrow under this
Section
2.16,
prepay under Section
2.4,
and reborrow under this Section
2.16.
Immediately upon the making of a Swing Line Loan, each Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
Swing Line Lender a risk participation in such Swing Line Loan in an amount
equal to the product of such Lender’s ratable share times
the amount of such Swing Line Loan.
NYDOCS03/828371
(b) Borrowing
Procedures.
Each Swing Line Borrowing shall be made upon the applicable Borrower’s
irrevocable notice to the Swing Line Agent and the Administrative Agent, which
(x) in the case of Swing Line Loans requested by notice to the Administrative
Agent, may be given by telephone and (y) in the case of Swing Line Loans
requested by notice to the Swing Line Agent, may not be given by telephone,
but
may be given by facsimile, confirmed promptly by delivery to the Swing Line
Agent and the Administrative Agent of an original Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the applicable
Borrower. Each such notice must be received by the Swing Line Agent and the
Administrative Agent not later than 10:00 a.m. (London, England time) in
the case of any Swing Line Loans to be funded in Europe or 10:00 a.m. (Pacific
time) in the case of any Swing Line Loans to be funded in North America on
the
requested borrowing date, and shall specify (i) the amount and currency to
be
borrowed, which shall be a minimum of US$1,000,000 (or CDN$500,000 where the
Swing Line Borrowing is requested by TCCI) (provided
that, in case of TMFNL, such amount shall not be less than the Dollar Equivalent
of EUR 50,000),
and (ii) the requested borrowing date, which shall be a Business Day. Each
such
telephonic notice must be confirmed promptly by delivery to the Swing Line
Agent
and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the applicable Borrower.
Promptly after receipt by the Swing Line Agent of any telephonic Swing Line
Loan
Notice, the Swing Line Agent will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such
Swing Line Loan Notice and, if not, the Swing Line Agent will notify the
Administrative Agent (by telephone or in writing) of the contents thereof,
and
will notify each Swing Line Lender (by telephone or in writing) of the contents
thereof. Unless the Swing Line Agent has received notice (by telephone or in
writing) from the Administrative Agent (including at the request of any Lender)
prior to 2:00 p.m. (London, England time, in the case of any Swing Line Loan
to
be funded in Europe or New York City time, in the case of any Swing Line Loan
to
be funded in North America) on the date of the proposed Swing Line Borrowing
(A)
directing each Swing Line Lender not to make such Swing Line Loan as a result
of
the limitations set forth in the first proviso to the first sentence of
Section
2.16(a),
or (B) that one or more of the applicable conditions specified in Article
IV
is not then satisfied, then, subject to the terms and conditions hereof, each
Swing Line Lender will, not later than 3:00 p.m. (London, England time, in
the
case of any Swing Line Loan to be funded in Europe or Pacific time, in the
case
of any Swing Line Loan to be funded in North America) on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan
available to the applicable Borrower at its office by crediting the account
of
such Borrower on the books of the Swing Line Agent in Same Day Funds or as
otherwise directed by such Borrower.
(i) The
Swing Line Lenders at any time in their respective sole and absolute discretion
may direct the Swing Line Agent to request, on behalf of the applicable Borrower
(and each Borrower hereby irrevocably authorizes the Swing Line Agent to so
request on its behalf), that each Applicable Tranche Lender make a Base Rate
Committed Loan for the account of such Borrower in an amount equal to such
Lender’s ratable share of (A) the amount of Swing Line Loans made to such
Borrower and then outstanding, in
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the
case of Swing Line Loans denominated in US Dollars, or (B) the Dollar Equivalent
of the amount of Swing Line Loans made to such Borrower and then outstanding,
in
the case of Swing Line Loans denominated in any Alternative Currency. Such
request shall be made in writing (which written request shall be deemed to
be a
Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section
2.2,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section
4.2.
The Swing Line Agent shall furnish the applicable Borrower with a copy of the
applicable Committed Loan Notice promptly after delivering such notice to the
Administrative Agent or the Canadian Sub-Agent, as applicable. Each Applicable
Tranche Lender shall make an amount equal to its ratable share of the amount
specified in such Committed Loan Notice available to the Administrative Agent
or
the Canadian Sub-Agent, as applicable, in Same Day Funds for the account of
the
Swing Line Lenders at the Administrative Agent’s Office or the Canadian
Sub-Agent’s Office, as applicable, for US Dollar-denominated payments not later
than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon,
subject to Section
2.16(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Committed Loan to the applicable Borrower in such amount. The
Administrative Agent or the Canadian Sub-Agent, as applicable, shall remit
the
funds so received to the Swing Line Lenders.
(ii) If
for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section
2.16(c)(i),
the request for Base Rate Committed Loans submitted by the Swing Line Agent
as
set forth herein shall be deemed to be a request by the Swing Line Agent that
each Applicable Tranche Lender fund its risk participation in the relevant
Swing
Line Loan and each such Lender’s payment to the Administrative Agent or the
Canadian Sub-Agent, as applicable, for the account of the Swing Line Lender
pursuant to Section
2.16(c)(i)
shall be deemed payment in respect of such participation.
(iii) If
any Applicable Tranche Lender fails to make available to the Administrative
Agent or the Canadian Sub-Agent, as applicable, for the account of the Swing
Line Lenders any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section
2.16(c)
by the time specified in Section
2.16(c)(i),
the Swing Line Lenders shall be entitled to recover from such Lender (acting
through the Administrative Agent or the Canadian Sub-Agent, as applicable),
on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available
to the Swing Line Lenders at a rate per annum equal to the applicable Overnight
Rate from time to time in effect, plus any administrative, processing or similar
fees customarily charged by the applicable Swing Line Lender in connection
with
the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Committed Loan
included in the relevant Committed Borrowing or funded participation in the
relevant Swing Line Loan, as the case may be. A certificate of a Swing Line
Lender submitted to any Lender (through the Administrative Agent or the Canadian
Sub-Agent, as applicable) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.
NYDOCS03/828371
(iv) Each
Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section
2.16(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against any Swing Line Lender, any
Borrower or any other Person for any reason whatsoever, (B) the occurrence
or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided,
however,
that each Lender’s obligation to make Committed Loans pursuant to this
Section
2.16(c)
is subject to the conditions set forth in Section
4.2.
No such funding of risk participations shall relieve or otherwise impair the
obligation of any Borrower to repay Swing Line Loans made to it, together with
interest as provided herein.
(i) At
any time after any Lender has purchased and funded a risk participation in
a
Swing Line Loan, if the applicable Swing Line Lender receives any payment on
account of such Swing Line Loan, the Swing Line Lender will promptly distribute
to such Lender its ratable share thereof in the same funds as those received
by
such Swing Line Lender.
(ii) If
any payment received by a Swing Line Lender in respect of principal or interest
on any Swing Line Loan is required to be returned by such Swing Line Lender
under any of the circumstances described in Section
9.6
(including pursuant to any settlement entered into by such Swing Line Lender
in
its discretion), each Lender shall pay to such Swing Line Lender its ratable
share thereof on demand of the Administrative Agent, plus interest thereon
from
the date of such demand to the date such amount is returned, at a rate per
annum
equal to the applicable Overnight Rate. The Administrative Agent will make
such
demand upon the request of the applicable Swing Line Lender. The obligations
of
the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Interest
for Account of Swing Line Lenders.
The Swing Line Agent shall be responsible for invoicing the applicable Borrower
for interest on the Swing Line Loans. Until each Lender funds its Base Rate
Committed Loan or risk participation pursuant to this Section
2.16
to refinance such Lender’s ratable share of any Swing Line Loan, interest in
respect of such ratable share shall be solely for the account of the respective
Swing Line Lenders.
(f) Payments
Directly to Swing Line Lender.
Each Borrower shall make all payments of principal and interest in respect
of
the Swing Line Loans made directly to the Swing Line Agent, for the account
of
the respective Swing Line Lenders.
ARTICLE
III
NYDOCS03/828371
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.
(e) In
the case of interest payments made by TKG, this Section
3.1
shall only apply to a Lender who is the beneficial owner of amounts received
pursuant to this Agreement and has provided evidence to TKG: (i) that such
Lender is a person (a corporate body or an individual) which is, for taxation
purposes, resident outside of the territory of the Federal Republic of Germany,
or (ii) if such Lender is a partnership, that all direct and indirect partners
of that partnership are persons who are, for taxation purposes, resident outside
of the territory of the Federal Republic of Germany, and does not hold any
amounts received pursuant to this Agreement through a permanent establishment
or
a permanent representative in Germany or (iii)
NYDOCS03/828371
that
such Lender qualifies as a credit institution or financial institution within
the meaning of the German Banking Act (Kreditwesengesetz).
(f) TFSUK
is not required to pay additional amounts to a Lender (other than a new Lender
pursuant to a request by a Borrower under Section
9.16)
pursuant to Section
3.1(a)
in respect of any Tax that is required by the United Kingdom to be withheld
from
a payment of interest on a Loan made to TFSUK if at the time the payment falls
due (i) the relevant Lender is not a UK Qualifying Lender and that Tax would
not
have been required to be withheld had that Lender been a UK Qualifying Lender
unless the reason that that Lender is not a UK Qualifying Lender is a change
after the date on which it became a Lender under this Agreement in (or in the
interpretation, administration or application of) any law or double taxation
agreement or any published practice or published concession of any relevant
Governmental Authority; or (ii) the relevant Lender is a UK Treaty Lender and
TFSUK is able to demonstrate that that Tax is required to be withheld as a
result of the failure of the relevant Lender to comply with its obligations
under Section
9.15(a).
Any Lender which is a Lender in respect of a Loan to TFSUK and which is not,
or
ceases to be, a UK Qualifying Lender, for whatever reason, shall promptly notify
the Administrative Agent and TFSUK.
Section
3.2 Illegality.
(a) 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 Eurocurrency
Rate Loans (whether denominated in US Dollars or an Alternative Currency) or
Money Market LIBOR Loans, or to determine or charge interest rates based upon
the Eurocurrency Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, US Dollars or any Alternative Currency in the applicable interbank
market, then, on notice thereof by such Lender to the applicable Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurocurrency Rate Loans in the affected currency or currencies or,
in
the case of Eurocurrency Rate Loans in US Dollars, to convert Base Rate
Committed Loans to Eurocurrency 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 Eurocurrency 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 and such Loans are denominated in US Dollars, convert all
Eurocurrency 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 Eurocurrency
Rate Loans or Money Market LIBOR Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurocurrency 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
NYDOCS03/828371
avoid
the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially
disadvantageous to such Lender.
(b) Notwithstanding
any other provision of this Agreement, if the introduction of or any change
in
the interpretation of any law or regulation shall make it unlawful, or any
central bank or other governmental authority shall assert that it is unlawful,
for any Tranche C Lender or its Lending Office to perform its obligations
hereunder to complete and accept Drafts, to purchase Bankers’ Acceptances or to
purchase Drafts or to continue to fund or maintain Bankers’ Acceptances or BA
Equivalent Notes hereunder, then, on notice thereof and demand therefor by
such
Tranche C Lender to TCCI through the Administrative Agent (i) an amount
equal to the aggregate Face Amount of all Bankers’ Acceptances, Drafts and BA
Equivalent Notes outstanding at such time shall, upon such demand, be deposited
by TCCI with the Administrative Agent in accordance with Section 2.15(l) until
the BA Maturity Date of each such Bankers’ Acceptance, Drafts and BA Equivalent
Note, (ii) upon the BA Maturity Date of any Bankers’ Acceptance, Draft or
BA Equivalent Note in respect of which any such deposit has been made, the
Administrative Agent shall be, and hereby is, authorized (without notice to
or
any further action by TCCI) to apply such amount (or the applicable portion
thereof) to the payment of such Bankers’ Acceptance, Draft or (iii) the
obligation of the Tranche C Lenders to complete and accept Drafts and purchase
Bankers’ Acceptances and to purchase Drafts that have not been accepted by a
Tranche C Lender shall be suspended until the Administrative Agent shall notify
TCCI that such Tranche C Lender has determined that the circumstances causing
such suspension no longer exist (and such Lender shall give such notice promptly
upon receiving knowledge that such circumstances no longer exist).
Section
3.3 Inability
to Determine Rates.
If the applicable Required Lenders determine that for any reason in connection
with any request for a Eurocurrency Rate Loan or a conversion to or continuation
thereof that (a) deposits (whether in US Dollars or an Alternative Currency)
are
not being offered to banks in the applicable offshore interbank market for
such
currency for the applicable amount and Interest Period of such Eurocurrency
Rate
Loan, (b) adequate and reasonable means do not exist for determining the
Eurocurrency Base Rate for any requested Interest Period with respect to a
proposed Eurocurrency Rate Loan (whether denominated in US Dollars or an
Alternative Currency) made to a Borrower, or (c) the Eurocurrency Base Rate
for
any requested Interest Period with respect to a proposed Eurocurrency 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 Eurocurrency Rate Loans in the affected currency
or
currencies 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 Eurocurrency Rate Loans in the affected currency or currencies
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.
NYDOCS03/828371
Section
3.4 Increased
Cost and Reduced Return; Capital Adequacy;
Reserves on Eurocurrency Rate Loans.
(a) If
on or after (i) the date hereof, in the case of Eurocurrency Rate Loans,
Bankers’ Acceptances, Drafts and BA Equivalent Notes, 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
Eurocurrency Rate Loans or Money Market LIBOR Loan or of purchasing, accepting,
making or maintaining Bankers’ Acceptances or BA Equivalent Notes, or a
reduction in the amount received or receivable by such Lender in connection
with
any Eurocurrency Rate Loan, Money Market LIBOR Loan, Bankers’ Acceptance Draft
or BA Equivalent Note (excluding for purposes of this subsection (a) any such
increased costs or reduction in amount resulting from (i) Taxes or Other Taxes
(as to which Section
3.1
shall govern), (ii) changes in the basis of taxation of overall net income
or
overall gross income by the ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ or any foreign
jurisdiction or any political subdivision of either thereof under the Laws
of
which such Lender is organized or has its Lending Office, and (iii) reserve
requirements utilized in the determination of the Eurocurrency Rate), then
from
time to time within 15 days of demand by such Lender (with a copy of such demand
to the Administrative Agent), subject to Section
3.4(c),
the applicable Borrower shall pay to such Lender such additional amounts as
will
compensate such Lender for such increased cost or reduction.
(b) If
any Lender determines that the introduction of any Law after the date hereof
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith
(including determination that, for purposes of capital adequacy requirements,
the Commitment of such Lender does not constitute a commitment with an original
maturity of one year or less), has the effect of materially reducing the rate
of
return on the capital of such Lender or any corporation controlling such Lender
as a consequence of such Lender's obligations hereunder (taking into
consideration its policies with respect to capital adequacy and such Lender's
desired return on capital), then from time to time upon demand of such Lender
(with a copy of such demand to the Administrative Agent), subject to
Section
3.4(c),the
applicable Borrower shall pay within 15 days of demand by such Lender such
additional amounts as will compensate such Lender for such reduction.
(c) Promptly
after receipt of knowledge of any Regulatory Change or other event that will
entitle any Lender to compensation under this Section
3.4,
such Lender shall give notice thereof to the applicable Borrower and the
Administrative Agent certifying the basis for such request for compensation
in
accordance with Section
3.6(a)
and designate a different Lending Office if such designation will avoid, or
reduce the amount of, compensation payable under this Section
3.4
and will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. Notwithstanding anything in Sections
3.4(a)
or 3.4(b)
to the contrary, no Borrower shall be obligated to compensate any Lender for
any
amount arising or accruing before the earlier of (i) 180 days prior to the
date
on which such Lender gives notice to
NYDOCS03/828371
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 or a Canadian Prime 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);
(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 or a Canadian Prime Rate Loan on the date or in the amount notified
by
such Borrower;
(c) any
failure by any Borrower to make payment of any Loan (or interest due thereon)
denominated in an Alternative Currency on its scheduled due date or any payment
thereof in a different currency; or
(d) any
assignment of a Eurocurrency 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 foreign exchange loss and 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.
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 Eurocurrency 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 Eurocurrency Rate Loans, the applicable Borrower may give
NYDOCS03/828371
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 Eurocurrency Rate Loans shall be made
instead as Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Eurocurrency Rate Loans of the other
Lenders), and (B) after each of such Lender's Eurocurrency Rate Loans has been
repaid, all payments of principal which would otherwise be applied to
Eurocurrency 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 Eurocurrency 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.
(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
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;
NYDOCS03/828371
(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 its jurisdiction of organization;
(v) a
favorable opinion of O’Melveny & ▇▇▇▇▇ LLP, counsel to TMCC, 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-1;
(vii) a
favorable opinion of Stikeman Elliott LLP, counsel to TCCI, addressed to the
Administrative Agent and each Lender, as to the matters and in the form set
forth in Exhibit
I-2;
(viii) favorable
opinions of Freshfields Bruckhaus ▇▇▇▇▇▇▇▇, counsel to TMFNL, TFSUK, TKG and
TLG, addressed to the Administrative Agent and each Lender, as to the matters
and in the forms set forth in Exhibit
I-3,
Exhibit
I-4
and Exhibit
I-5;
(ix) 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;
(x) 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
(xi) such
other assurances, certificates, documents or consents as the Administrative
Agent, the Swing Line Lenders 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
NYDOCS03/828371
of
Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude a final settling
of
accounts between the Borrowers and the Administrative Agent).
(d) The
Borrowers shall have terminated the commitments, and paid in full all
indebtedness, interest, fees and other amounts outstanding, under (i) the Five
Year Credit Agreement dated as of March 29, 2006, among TMCC, TCPR, the lenders
parties thereto, Bank of America, N.A., as syndication agent, The Bank of
Tokyo-Mitsubishi UFJ, Ltd., BNP Paribas and JPMorgan Chase Bank, N.A., as
documentation agents, and Citicorp USA, Inc., as administrative agent for the
lenders and (ii) the credit facilities of TMFNL and TFSUK listed on Schedule
4.1(d)
hereto. Each of the Lenders that is a party to any of the foregoing credit
facilities hereby waives, upon execution of this Agreement, the requirement
of
prior notice under such credit agreement relating to the termination of
commitments thereunder.
Without
limiting the generality of the provisions of Section
8.3,
for purposes of determining compliance with the conditions specified in this
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
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 Eurocurrency 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).
(b) No
Default with respect to such Borrower shall exist, or would result from such
proposed Loan.
(c) The
Administrative Agent, the Canadian Sub-Agent or Swing Line Agent, as applicable,
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
Eurocurrency Rate Loans) submitted by any Borrower shall be deemed to be a
representation and warranty by such
NYDOCS03/828371
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
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 or results of operations 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 (i) any provision of applicable Law or of the
Organization Documents of such Borrower or (ii) of any agreement, judgment,
injunction, order, decree or other instrument binding upon such Borrower or
any
of its Subsidiaries where such default, individually or in the aggregate, would
be reasonably likely to result in a material adverse change in the business,
financial position or results of operations of such Borrower and its
Subsidiaries, considered as a whole.
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, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors’ rights generally or by equitable
principles relating to enforceability.
Section 5.4
Financial
Information.
(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
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Subsidiaries
as of such date and their consolidated results of operations and cash flows
for
such fiscal year, (B) in the case of TFSUK, the consolidated financial position
of TFSUK and its Consolidated Subsidiaries as of such date and their
consolidated results of operations for such fiscal year , (C) in the case of
TKG, the consolidated financial position of TKG and its Consolidated
Subsidiaries as of such date and their consolidated results of operations for
such fiscal year and (D) in the case of each other Borrower, the financial
position of such Borrower 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 or results of operations 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 likelihood 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 contests 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, the Puerto Rico Code and the ITA 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, except
any assessment that is being contested in good faith by appropriate proceedings
diligently conducted and for which reserves have been provided in accordance
with GAAP. 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.
Each Significant Subsidiary of any Borrower 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
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material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
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 written 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, on the date as of which such information is delivered or certified, not
contain any material misstatement of fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided
that, with respect to projected financial information, the Borrowers represent
only that such information was prepared in good faith based upon assumptions
believed by them to be reasonable at the time (it being understood that
projections are not to be viewed as facts and that actual results may differ
significantly from such projections).
Section 5.11
Representations
as to Non-US Obligors.
Each
of TMFNL, TFSUK, TKG, TCCI and TLG (each, a “Non-US
Obligor”)
additionally represents and warrants to the Administrative Agent and the Lenders
that:
(a) Such
Non-US Obligor
is subject to Laws with respect to its obligations under this Agreement and
the
other Loan Documents to which it is a party (collectively as to such Non-US
Obligor, the “Applicable
Non-US Obligor Documents”),
and the execution, delivery and performance by such Non-US Obligor of the
Applicable Non-US Obligor Documents constitute and will constitute private
and
commercial acts and not public or governmental acts. Neither such Non-US Obligor
nor any of its property has any immunity from jurisdiction of any court or
from
any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) under the
laws
of the jurisdiction in which such Non-US Obligor is organized and existing
in
respect of its obligations under the Applicable Non-US Obligor
Documents.
(b) The
Applicable Non-US Obligor Documents are in proper legal form under the Laws
of
the jurisdiction in which such Non-US Obligor is organized and existing for
the
enforcement thereof against such Non-US Obligor under the Laws of such
jurisdiction, and to ensure the legality, validity, enforceability, priority
or
admissibility in evidence of the Applicable Non-US Obligor Documents. It is
not
necessary to ensure the legality, validity, enforceability, priority or
admissibility in evidence of the Applicable Non-US Obligor Documents that the
Applicable Non-US Obligor Documents be filed, registered or recorded with,
or
executed or notarized before, any court or other authority in the jurisdiction
in which such Non-US Obligor is organized and existing or that any registration
charge or stamp or similar tax be paid on or in respect of the Applicable Non-US
Obligor Documents or any other document,
NYDOCS03/828371
except
for (i) any such filing, registration, recording, execution or notarization
as
has been made or is not required to be made until the Applicable Non-US Obligor
Document or any other document is sought to be enforced and (ii) any charge
or
tax as has been timely paid.
(c) There
is no tax, levy, impost, duty, fee, assessment or other governmental charge,
or
any deduction or withholding, imposed by any Governmental Authority in or of
the
jurisdiction in which such Non-US Obligor is organized and existing either
(i)
on or by virtue of the execution or delivery of the Applicable Non-US Obligor
Documents or (ii) on any payment to be made by such Non-US Obligor pursuant
to
the Applicable Non-US Obligor Documents, except as has been disclosed to the
Administrative Agent.
(d) The
execution, delivery and performance of the Applicable Non-US Obligor Documents
executed by such Non-US Obligor are, under applicable foreign exchange control
regulations of the jurisdiction in which such Non-US Obligor is organized and
existing, not subject to any notification or authorization except (i) such
as
have been made or obtained or (ii) such as cannot be made or obtained until
a
later date (provided
that any notification or authorization described in clause (ii) shall be made
or
obtained as soon as is reasonably practicable).
ARTICLE
VI
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 180 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 (to the
extent that such Borrower is required to prepare statements of cash flow in
accordance with GAAP), 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; provided,
however, that no Borrower other than TMCC and TCPR shall be required to provide
financial information under
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this
subsection
(b);
(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;
(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.
NYDOCS03/828371
Each
Borrower hereby acknowledges that (a) the Administrative Agent, the Sub-Agents
and the Arrangers will make available to the Lenders materials and/or
information provided by or on behalf of such Borrower hereunder (collectively,
“Borrower
Materials”)
by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”)
and (b) certain of the Lenders (each, a “Public
Lender”)
may have personnel who do not wish to receive material non-public information
with respect to any of the Borrowers or their respective Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in
investment and other market-related activities with respect to such Persons’
securities. The Administrative Agent, the Sub-Agents, the Arrangers and each
Borrower hereby agree that (w) no Borrower Materials shall be made available
to
Public Lenders unless such Borrower has clearly and conspicuously marked such
Borrower Materials “PUBLIC” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized
the Administrative Agent, the Sub-Agents, the Arrangers and the Lenders to
treat
such Borrower Materials as not containing any material non-public information
with respect to the Borrowers or their respective securities for purposes of
United States Federal and state securities laws (provided, however, that to
the
extent such Borrower Materials constitute Information, they shall be treated
as
set forth in Section 9.8); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated
“Public Investor;” and (z) the Administrative Agent, the Sub-Agents and the
Arrangers shall treat any Borrower Materials that are not marked “PUBLIC” as
being suitable only for posting on a portion of the Platform not designated
“Public Investor.”
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.
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 business
reasonably related or incidental thereto 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
NYDOCS03/828371
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 its 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, Puerto Rico, Canada, the
Netherlands, Germany and the United Kingdom 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 US
Dollars to secure borrowings in jurisdictions other than the United States,
Puerto Rico, Canada, the Netherlands, Germany and the United
Kingdom;
(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;
NYDOCS03/828371
(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 to 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.
Section 6.6
Consolidations.
Mergers
and Sales of Assets.
(a) Such Borrower shall not consolidate with or merge into any other Person
or
NYDOCS03/828371
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 jurisdiction of organization
of such Borrower, the United States of America, any State thereof, the District
of Columbia or Puerto Rico or, in the case of TCCI, Canada or any province
of
Canada (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, together with a written opinion or opinions of counsel
satisfactory to the Administrative Agent (who may be counsel to such Borrower),
stating that such amendment or supplement to this Agreement complies with this
Section
6.6
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
(b) Upon
any consolidation or merger or any conveyance, transfer or lease of all or
substantially all of the properties and assets of such Borrower in accordance
with Section
6.6(a),
the Successor Corporation shall succeed to, and be substituted for, and may
exercise every right and power of, such Borrower under this Agreement and the
Loans with the same effect as if the Successor Corporation had been named as
a
Borrower therein and herein, and thereafter, such Borrower, except in the case
of a lease of such Borrower's properties and assets, shall be released from
its
liability as obligor on any of the Loans and under this Agreement.
Section 6.7
Use
of Proceeds.
The proceeds of the Loans made under this Agreement will be used by such
Borrower for its general
NYDOCS03/828371
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, the Tranche B Availability Period, the Tranche C
Availability Period and the Tranche D 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
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 US$50,000,000 or its Dollar Equivalent 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
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property
is instituted without the consent of such Person and continues undismissed
or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding;
(g) any
member of the ERISA Group shall fail to pay when due an amount or amounts
aggregating in excess of US$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 US$50,000,000;
(h) judgments
or orders for the payment of money in excess of US$50,000,000 or its Dollar
Equivalent 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;
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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
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.
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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.
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.
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
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Administrative
Agent shall take such action with respect to such Default as may be directed
by
the applicable Required Lenders in accordance with Article
VII;
provided,
however,
that unless and until the Administrative Agent has received any such direction,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default as it shall
deem advisable or in the best interest of the Lenders.
Section
8.6 Credit
Decision; Disclosure of Information by Administrative Agent. Each
Lender acknowledges that no Agent-Related Person has made any representation
or
warranty to 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-
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pocket
expenses (including Attorney Costs) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrowers.
The
undertaking in this Section shall survive termination of the Aggregate
Commitments, the payment of all other Obligations and the resignation of the
Administrative Agent.
Section
8.8 Administrative
Agent in its Individual Capacity.
Bank of America 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 Bank of
America were not the Administrative Agent hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Bank of America 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, Bank of America
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 Bank of America in its
individual capacity.
Section
8.9 Successor
Administrative Agent and Sub-Agents.
(a) The Administrative Agent and each Sub-Agent may resign as Administrative
Agent or Sub-Agent, as applicable, upon 30 days' notice to the applicable
Lenders. If (i) the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor administrative
agent for the Lenders, (ii) the Canadian Sub-Agent resigns, the Required Lenders
referred to in paragraph (c) in the definition of “Required Lenders” shall
appoint from among the Tranche C Lenders a successor Canadian sub-agent, which
shall be a bank that is not a non-resident of Canada for the purposes of Part
XIII of the ITA and (iii) the Swing Line Agent resigns, the Required Lenders
shall appoint from among the Swing Line Lenders a successor Swing Line agent,
which shall be a bank with an office in the United Kingdom, or an Affiliate
of
any such bank with an office in the United Kingdom, which successor, in each
case, 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 such successor is so appointed prior
to the effective date of the resignation of the Administrative Agent or
applicable Sub-Agent, the Administrative Agent or Sub-Agent, as applicable,
may
appoint, after consulting with the Lenders and the Borrowers, a successor
meeting the qualifications set forth above. Upon the acceptance of its
appointment as successor administrative agent or sub-agent hereunder, the Person
acting as such successor administrative agent or sub-agent shall succeed to
all
the rights, powers and duties of the retiring Administrative Agent or Sub-Agent
and the term “Administrative Agent” or “Sub-Agent”, as applicable, shall mean
such successor administrative agent or sub-agent, and the retiring
Administrative Agent's or Sub-Agent’s appointment, powers
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and
duties as Administrative Agent or Sub-Agent shall be terminated. After any
retiring Administrative Agent's or Sub-Agent’s resignation hereunder as
Administrative Agent or Sub-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 or Sub-Agent under this Agreement. If no
successor administrative agent or sub-agent, as applicable, has accepted
appointment as Administrative Agent or Sub-Agent by the date which is 30 days
following a retiring Administrative Agent's or Sub-Agent’s notice of
resignation, the retiring Administrative Agent's or Sub-Agent’s resignation
shall nevertheless thereupon become effective and the Lenders shall perform
all
of the duties of the Administrative Agent or Sub-Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided
for
above.
(b)
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitments and Committed Loans pursuant to
subsection
9.7(b),
Bank of America may, upon 30 days’ notice to the Borrowers, resign as Swing Line
Agent and Swing Line Lender. In the event of any such resignation as Swing
Line
Agent and Swing Line Lender, the Borrowers shall be entitled to appoint from
among the Lenders a successor Swing Line Agent and successor Swing Line Lender
hereunder; provided,
however,
that no failure by the Borrowers to appoint any such successor shall affect
the
resignation of Bank of America as Swing Line Agent and Swing Line Lender. If
Bank of America resigns as Swing Line Agent and Swing Line Lender, it shall
retain all the rights of the Swing Line Agent and Swing Line Lender provided
for
hereunder with respect to Swing Line Loans made by it and outstanding as of
the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Committed Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section
2.16(c).
Upon the appointment of a successor Swing Line Agent and Swing Line Lender,
such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring Swing Line Agent and Swing Line Lender.
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;
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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.
Section
8.12 Canadian
Sub-Agent.
The Canadian Sub-Agent is not a non-resident of Canada for purposes of Part
XIII
of the ITA and, as such, it and not the Administrative Agent has been designated
under this Agreement to carry out certain duties of the Administrative Agent
in
respect of TCCI. The Canadian Sub-Agent shall be subject to each of the
obligations in this Agreement to be performed by the Administrative Agent,
and
each of TCCI and the Tranche C Lenders agrees that the Canadian Sub-Agent shall
be entitled to exercise each of the rights and shall be entitled to each of
the
benefits of the Administrative Agent under this Agreement as relate to the
performance of its obligations hereunder. References in Sections 2.15 and 3.1
to
the Administrative Agent shall also include the Canadian Sub-Agent.
ARTICLE
IX
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
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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 or Commitment Cap 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) amend
Section
1.6
or the definition of “Alternative Currency” without the written consent of each
Lender; or
(g) 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; (ii) no amendment, waiver or consent shall, unless in writing
and
signed by a Swing Line Lender in addition to the Lenders required above, affect
the rights or duties of such Swing Line Lender under this Agreement; (iii)
no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Agent in addition to the Lenders required above, affect the rights or
duties of such Swing Line Agent under this Agreement; and (iv) 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) made by a Lender
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hereunder
shall be effective if signed by such Lender and the applicable Borrower and
acknowledged by the Administrative Agent and
(ii) no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without
the consent of such Lender.
Section
9.2 Notices
and Other Communications; Facsimile Copies.
(a) General.
Unless otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including by facsimile
transmission). All such written notices shall be mailed, faxed or delivered
to
the applicable address, facsimile number or (subject to subsection (c) below)
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(i) if
to a Borrower, the Administrative Agent or the Swing Line 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, the Swing Line 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
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and
other information as provided in Section
6.1,
and to distribute Loan Documents (or amendments or waivers thereto) for
execution by the parties thereto, and may not be used for any other
purpose.
(d) Reliance
by Administrative Agent, the Swing Line Agent and Lenders. The
Administrative Agent, the Swing Line Agent and the Lenders shall be entitled
to
rely and act upon any notices (including telephonic Committed Loan Notices
and
Swing Line 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 and the Swing Line 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 of a single
counsel (and one local counsel in each jurisdiction or other additional counsel
to the extent required due to a conflict of interest), 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
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the
Borrowers of a certificate setting forth in reasonable detail the basis for
the
amounts demanded. The agreements in this Section shall survive the termination
of the Aggregate Commitments and repayment of all other
Obligations.
Section
9.5 Indemnification
by the Borrowers. Whether
or not the transactions contemplated hereby are consummated, the Borrowers
shall
indemnify and hold harmless each Agent-Related Person, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the “Indemnitees”)
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including Attorney Costs) of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any
Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment, Loan or the use or
proposed use of the proceeds therefrom, or (c)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory (including any investigation of, preparation for, or defense of any
pending or threatened claim, investigation, litigation or proceeding) and
regardless of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the “Indemnified
Liabilities”);
provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, 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.
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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 Overnight Rate from time to time in
effect, in the applicable currency of such recovery or payment.
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 no 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 (including for purposes of this
subsection
(b),
participations in Swing Line 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 US$10,000,000 (provided
that, in case of TMFNL, such
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amount
shall not be less than the Dollar Equivalent of EUR 50,000), unless
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing in respect of such Borrower, the applicable Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed); (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Committed Loans or the Commitment assigned;
(iii) any assignment of a Commitment must be approved by the Administrative
Agent (which approval shall not be unreasonably withheld or delayed) unless
the
Person that is the proposed assignee is itself a Lender or an Affiliate of
a
Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); (iv) if the assigning Lender has a Commitment in more than
one Tranche, such Lender shall make a pro rata assignment to its assignee of
its
Commitments under each such Tranche; and (v) 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 US$3,500, which
fee may be waived by the Administrative Agent in its sole discretion. Subject
to
acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified
in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of
the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections
3.1,
3.4,
3.5,
9.4
and 9.5
with respect to facts and circumstances occurring prior to the effective date
of
such assignment). Upon request, each Borrower (at its expense) shall execute
and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender
of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section. If the Eligible Assignee is required to deliver
documents pursuant to Section
9.15,
it shall deliver those documents to the applicable Borrower and the
Administrative Agent in accordance with Section
9.15.
(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 absent manifest error, 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
NYDOCS03/828371
Lender's
rights and/or obligations under this Agreement (including all or a portion
of
its Commitment and/or the Loans (including such Lender’s participations in Swing
Line 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, (iii) in the case of
a
Tranche C Lender, such Participant is not a non-resident of Canada for the
purposes of Part XIII of the ITA, (iv) in the case of TMFNL, the amount of
such
participations sold shall not be less than the Dollar Equivalent of EUR 50,000
and (v) the Borrowers, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and
to
approve any amendment, modification or waiver of any provision of this
Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section
9.1
that directly affects such Participant. Subject to subsection (e) of this
Section, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections
3.1,
3.4
and 3.5 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by Law, each Participant also shall be entitled to the benefits of Section
9.9
as though it were a Lender, provided such Participant agrees to be subject
to
Section
2.12
as though it were a Lender.
(e) A
Participant shall not be entitled to receive any greater payment under
Section
3.1
or Section
3.4 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant unless the sale of the participation
to
such Participant is made with the Borrowers' prior written consent. A
Participant shall not be entitled to the benefits of Section
3.1
unless the Borrowers are notified of the participation sold to such Participant
and such Participant agrees, for the benefit of each Borrower, to comply with
Section
9.15
as though it were a Lender.
(f) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note, if any)
to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Where
a Lender (the “Designating Lender”) has designated in its Administrative
Questionnaire an Affiliate of the Designating Lender as the entity which shall
participate in or make Loans to a particular Borrower (i) the Commitment shall
be held by the Designating Lender, (ii) such Affiliate shall be entitled to
all
rights and benefits (other than voting rights, which remain with the Designating
Lender) under this Agreement relating to its participation in any Loan and
(iii)
the Designating Lender shall procure that such Affiliate complies with the
corresponding duties in relation to such Loan.
(h) As
used herein, the following terms have the following meanings:
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“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 (w) notwithstanding the foregoing, no Person shall qualify as an Eligible
Assignee without the approval of each Swing Line Lender (such approval not
to be
unreasonably withheld or delayed), (x) notwithstanding the foregoing, “Eligible
Assignee” shall not include a Borrower or any of the Borrowers' Affiliates; and
(y) with respect to any Tranche C Commitment or any Tranche C Loans, any Person
that is a non-resident of Canada for the purposes of Part XIII of the ITA shall
not qualify as an Eligible Assignee.
“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.
NYDOCS03/828371
For
the purposes of this Section, “Information”
means all information received from a Borrower relating to such Borrower or
its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by such Borrower; provided
that, in the case of information received from a Borrower after the date hereof,
such information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord
to
its own confidential information.
Section
9.9 Set-off.
Upon the occurrence and during the continuance of any Event of Default with
respect to a Borrower, nothing in this Agreement shall preclude any Lender,
at
any time and from time to time, from exercising any right of set off,
counterclaim, or other rights it may have otherwise than under this Agreement
and or from applying amounts realized against any and all Obligations owing
by
such Borrower to such Lender hereunder or under any other Loan Document, now
or
hereafter existing. Each Lender agrees promptly to notify the applicable
Borrower and the Administrative Agent after any such set-off and application
made by such Lender; provided,
however,
that the failure to give such notice shall not affect the validity of such
set-off and application.
Section
9.10 Interest
Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document, the
interest paid or agreed to be paid under the Loan Documents shall not exceed
the
maximum rate of non-usurious interest permitted by applicable Law (the
“Maximum
Rate”).
If the Administrative Agent or any Lender shall receive interest in an amount
that exceeds the Maximum Rate, the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal, refunded to
the
applicable Borrower.
Section
9.11 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
Section
9.12 Integration.
This Agreement, together with the other Loan Documents, comprises the complete
and integrated agreement of the parties on the subject matter hereof and thereof
and supersedes all prior agreements, written or oral, on such subject matter.
In
the event of any conflict between the provisions of this Agreement and those
of
any other Loan Document, the provisions of this Agreement shall control;
provided
that the inclusion of supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with
the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
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
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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 and Tranche D 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, to the extent it may lawfully do so, (A) promptly submit to the
Administrative Agent such additional duly completed and signed copies of one
of
such forms (or such successor forms as shall be adopted from time to time by
the
relevant United States taxing authorities) as may then be available under then
current United States Laws and regulations to avoid, or such evidence as is
satisfactory to TMCC and the Administrative Agent of any available exemption
from or reduction of, United States withholding taxes in respect of all payments
to be made to such Foreign Lender by TMCC pursuant to this Agreement, (B)
promptly notify the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction, and (C)
take
such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws that TMCC make any deduction or withholding for taxes from amounts payable
to such Foreign Lender. In relation to all payments to be made to a Tranche
A
Lender by TFSUK, such Lender shall cooperate, to the extent it is able to do
so,
with TFSUK in completing any procedural formalities necessary for TFSUK to
obtain authorization to make such a payment without a deduction or withholding
for or on account of UK Taxes, including, to
NYDOCS03/828371
the
extent reasonably practicable, making and filing an appropriate application
for
relief under a double taxation agreement.
(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) As
of the date that each Lender becomes a Tranche C Lender under this Agreement,
each such Lender represents and warrants to the Administrative Agent and TCCI
that it is not a non-resident in Canada for the purposes of Part XIII of the
ITA
and agrees that as long as it is a Tranche C Lender, it will not be a
non-resident of Canada for the purposes of Part XIII of the ITA.
(iv) 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; (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; and (C) in the case of a Tranche C Lender, evidence that no Person for
whom such Lender is receiving any portion of any
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sums
paid or payable to such Lender is a non-resident of Canada for purposes of
Part
XIII of the ITA.
(v) No
Borrower (other than TFSUK) 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.
(vi) 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 (i) if any Lender
is a Defaulting Lender, (ii) any Lender has been deemed insolvent or become
the
subject of a bankruptcy or insolvency proceeding or (iii) any Lender fails
to
consent to an amendment, modification or waiver of this Agreement, or to a
request that Eurocurrency Rate Loans be made in a currency other than those
NYDOCS03/828371
specifically
listed in the definition of “Alternative Currency”, that pursuant to the terms
hereof requires consent of all of the Lenders or all of the Lenders affected
thereby (provided that, (x) such amendment, modification, waiver or currency
request has been consented to by the Required Lenders and (y) all such
non-consenting Lenders are replaced on the same terms) 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, accrued interest,
accrued fees and other amounts owing to such Lender through the date of
replacement (including any amounts payable pursuant to Section
3.5)
and (z) release such Lender from its obligations under the Loan Documents.
Any
Lender being replaced shall execute and deliver an Assignment and Assumption
with respect to such Lender's Commitment and outstanding Loans.
Section
9.17 Governing
Law.
(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.
(c)EACH
BORROWER OTHER THAN TMCC HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS
TMCC, IN THE CASE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE UNITED STATES
OF AMERICA AS ITS
NYDOCS03/828371
DESIGNEE,
APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF,
AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS THAT MAY BE SERVED IN ANY ACTION OR PROCEEDING ARISING
OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY LOAN DOCUMENT, AND TMCC HEREBY
IRREVOCABLY ACCEPTS SUCH DESIGNATION, APPOINTMENT AND EMPOWERMENT. SUCH SERVICE
MAY BE MADE BY MAILING (BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID) OR
DELIVERING A COPY OF SUCH PROCESS TO SUCH BORROWER IN CARE OF TMCC AT TMCC’S
ADDRESS SPECIFIED IN SCHEDULE 9.2, AND EACH BORROWER HEREBY IRREVOCABLY
AUTHORIZES AND DIRECTS TMCC TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN
ALTERNATIVE METHOD OF SERVICE, THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE
OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING (BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID) OF COPIES OF SUCH PROCESS TO
TMCC
OR THE BORROWER OR SUCH LOAN PARTY AT ITS ADDRESS SPECIFIED IN SCHEDULE 9.2.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
Section
9.18 No
Advisory or Fiduciary Responsibility. In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each Borrower acknowledges
and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the
Administrative Agent, the Sub-Agents, the Arrangers and the Lenders are
arm’s-length commercial transactions between such Borrower and its Affiliates,
on the one hand, and the Administrative Agent, the Sub-Agents, the Arrangers
and
the Lenders, on the other hand, (B) such Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate,
and (C) such Borrower is capable of evaluating, and understands and accepts,
the
terms, risks and conditions of the transactions contemplated hereby and by
the
other Loan Documents; (ii) (A) each of the Administrative Agent, the Sub-Agents,
the Arrangers and the Lenders is and has been acting solely as a principal
and,
except as expressly agreed in writing by the relevant parties, has not been,
is
not, and will not be acting as an advisor, agent or fiduciary for such Borrower
or any of its Affiliates, or any other Person and (B) none of the Administrative
Agent, the Sub-Agents, the Arrangers or the Lenders has any obligation to such
Borrower or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other
Loan
Documents; and (iii) the Administrative Agent, the Sub-Agents, the Arrangers
and
the Lenders and their respective Affiliates may be engaged in a broad range
of
transactions that involve interests that differ from those of such Borrower
and
its Affiliates, and neither the Administrative Agent, nor any Sub-Agent, nor
any
Arranger, nor any Lender has any obligation to disclose any of such interests
to
the Borrower or its Affiliates. To the fullest extent permitted by law, each
of
the Borrowers hereby waives and releases any claims
that it may have against the Administrative Agent, the Sub-Agents, the Arrangers
and the Lenders with respect to any breach or alleged breach of agency or
fiduciary duty in connection with any aspect of any transaction contemplated
hereby.
NYDOCS03/828371
Section
9.19 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.
Section
9.20 Judgment.
(a) If for the purposes of obtaining judgment in any court it is necessary
to
convert a sum due hereunder in US Dollars or Canadian Dollars into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking
procedures the Agent could purchase US Dollars or Canadian Dollars with such
other currency at Bank of America’s principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(b) The
obligation of any Borrower in respect of any sum due from it in any currency
(the “Primary
Currency”)
to any Lender or the Administrative Agent hereunder shall, notwithstanding
any
judgment in any other currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Administrative Agent (as
the case may be), of any sum adjudged to be so due in such other currency,
such
Lender or the Administrative Agent (as the case may be) may in accordance with
normal banking procedures purchase the applicable Primary Currency with such
other currency; if the amount of the applicable Primary Currency so purchased
is
less than such sum due to such Lender or the Administrative Agent (as the case
may be) in the applicable Primary Currency, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender
or
the Administrative Agent (as the case may be) against such loss, and if the
amount of the applicable Primary Currency so purchased exceeds such sum due
to
any Lender or the Administrative Agent (as the case may be) in the applicable
Primary Currency, such Lender or the Administrative Agent (as the case may
be)
agrees to remit to such Borrower such excess.
Section
9.21 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
NYDOCS03/828371
COURT
AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER
OF
THEIR RIGHT TO TRIAL BY JURY.
NYDOCS03/828371
IN
WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.
TOYOTA
MOTOR FINANCE
(NETHERLANDS)
B.V.
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Power of Attorney
TOYOTA
MOTOR CREDIT CORPORATION
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇
Title:
President and Chief Executive Officer
TOYOTA
FINANCIAL SERVICES (UK) PLC
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Authorized Signatory
TOYOTA
KREDITBANK GMBH
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Managing Director
By:
/s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Managing Director
NYDOCS03/828371
TOYOTA
CREDIT DE PUERTO RICO CORP.
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇
Title:
President and Chief Executive Officer
TOYOTA
CREDIT CANADA INC.
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
S.V.P.
TOYOTA
LEASING GMBH
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Managing Director
By:
/s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Managing Director
BANK
OF AMERICA, N.A., as
administrative Agent, Swing Line Agent, a Swingline Lender and a
Lender
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Director
▇▇▇▇▇▇▇▇/▇▇▇▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇.▇., acting
through its Canada Branch as Canadian Sub-Agent and as a Lender
By:
/s/
▇▇▇▇▇▇ Sales ▇▇ ▇▇▇▇▇▇▇
Title:
Vice President
CITICORP
USA, INC, as
Syndication Agent, a Swing Line Lender and a Lender
By:
/s/
▇▇▇▇▇ ▇▇▇
Title:
Vice President
CITIBANK,
N.A., CANADIAN BRANCH,
as a Lender
By:
/s/
▇▇▇▇▇▇ Homes
Title:
Authorized Signer
BANK
OF TOKYO- MITSUBISHI UFJ , LTD, as
a Documentation Agent and as a Lender
By:
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
General Manager
BANK
OF TOKYO MITSUBISHI UFJ (CANADA),
as
a Lender
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President and Chief Executive Officer
NYDOCS03/828371
BNP
PARIBAS,
as
a Documentation Agent and as a Lender
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Managing Director
By:
/s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Director
BNP
PARIBAS (CANADA),
as
a Lender
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Director Corporate Banking
By:
/s/
▇▇▇ ▇. ▇▇▇
Title:
Managing Director Corporate Banking
▇▇
▇▇▇▇▇▇ CHASE BANK N.A.,
as
a Documentation Agent and as a Lender
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Managing Director
▇▇
▇▇▇▇▇▇ CHASE BANK N.A., TORONTO BRANCH
as
a Lender
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Executive Director
NYDOCS03/828371
BARCLAYS
BANK PLC,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Director
DEUTSCHE
BANK AG, NEW YORK BRANCH,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Manging Director
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President
DEUTSCHE
BANK AG, CANADA BRANCH,
as
a Lender
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Managing Director & Principal Officer
By:
/s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Assistant Vice President
HSBC
BANK USA, NATIONAL ASSOCIATION,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
NYDOCS03/828371
HSBC
BANK USA, NATIONAL ASSOCIATION (TORONTO BRANCH),
as
a Lender
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Director
ROYAL
BANK OF CANADA,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇▇ Majesty
Title:
Authorized Signatory
By:
/s/
▇▇▇▇ ▇▇▇▇
Title:
Attorney-in-fact
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Director
SUMITOMO
MITSUI BANKING CORPORATION,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Senior Vice President
By:
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Deputy General Manager
NYDOCS03/828371
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Deputy General Manager
SUMITOMO
MITSUI BANKING CORPORATION OF CANADA,
as
a Lender
By:
/s/
Yusuke Ono
Title:
Senior Vice President
BANCO
SANTANDER CENTRAL HISPANO, S.A. NY BRANCH,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Executive Director
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Managing Director
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH
as
a Lender
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Managing Director
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title:
Associate
NYDOCS03/828371
FORTIS
BANK S.A./N.V.,
as
a Lender
By:
/s/
Hans De Langhe
Title:
Manager
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Manager
ING
BELGIUM FINANCIAL SERVICES DUBLIN LIMITED,
as
a Lender
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Director
▇▇▇▇▇▇▇
▇▇▇▇▇ BANK USA,
as
a Lender
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
MIZUHO
CORPORATE BANK, LTD.,
as
a Lender
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Joint General Manager
NYDOCS03/828371
MIZUHO
CORPORATE BANK, LTD.,
as
Agent for MIZUHO CORPORATE BANK (CANADA)
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Joint General Manager
▇▇▇▇▇▇
▇▇▇▇▇▇▇ BANK,
as
a Lender
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President
THE
ROYAL BANK OF SCOTLAND PLC,
as
a Lender
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Managing Director, Autos & Industrials
TORONTO
DOMINION BANK
as
a Lender
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Authorized Signatory
NYDOCS03/828371
UBS
LOAN FINANCE LLC,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Director
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇
Title:
Associate Director
UBS
AG CANADA BRANCH,
as
a Lender
By:
/s/
▇▇▇ ▇▇▇▇
Title:
Director
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
Title:
Associate Director
BANK
OF MONTREAL, LONDON BRANCH
as
a Lender
By:
/s/
▇.▇. ▇▇▇▇▇
Title:
Director
BANK
OF MONTREAL, TORONTO BRANCH
as
a Lender
By:
/s/
▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Vice President
▇▇▇▇▇▇▇▇/▇▇▇▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ BRANCH
as
a Lender
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Vice President
BANK
OF MONTREAL IRELAND PLC
as
a Lender
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Risk Manager
CIBC,
INC.,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Executive Director
CIBC
World Markets Corp. Authorized Signatory
CANADIAN
IMPERIAL BANK OF COMMERCE,
as
a Lender
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Executive Director
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Director
DRESDNER
BANK AG NEW YORK BRANCH AND GRAND CAYMAN BRANCH,
as
a Lender
By:
/s/
▇▇▇▇ van der Griend
Title:
Managing Director
NYDOCS03/828371
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
INTESA
SANPAOLO S.P.A.,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Co-Chief Manager of London Branch
By:
/s/
▇▇▇ ▇▇▇▇▇▇▇
Title:
Senior Relationship Manager-Nordic Region
SCOTIABANC,
INC.,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Managing Director
THE
BANK OF NOVA SCOTIA,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Managing Director
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
a Lender
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Vice President
NYDOCS03/828371
COMERICA
BANK,
as
a Lender
By:
/s/
▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
FIFTH
THIRD BANK,
as
a Lender
By:
/s/
▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
KBC
BANK NV DUBLIN BRANCH,
as
a Lender
By:
/s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Manager
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
General Manager
MELLON
BANK, N.A.,
as
a Lender
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇
Title:
First Vice President
SOCIETE
GENERALE,
as
a Lender
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Director
SOCIETE
GENERALE (CANADA BRANCH),
as
a Lender
NYDOCS03/828371
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Director
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Vice President
NORDEA
BANK FINLAND PLC,
as
a Lender
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
Senior Vice President
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title:
SVP Credit
PNC
BANK, NATIONAL ASSOCIATION,
as
a Lender
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Senior Vice President
THE
BANK OF NEW YORK,
as
a Lender
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President
BANCO
POPULAR DE PUERTO RICO,
as
Lender
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Vice President
NYDOCS03/828371
SCHEDULE
1.1
MANDATORY
COST FORMULAE
1.The
Mandatory Cost (to the extent applicable) is an addition to the interest rate
to
compensate Lenders for the cost of compliance with:
(a)the
requirements of the Bank of England and/or the Financial Services Authority
(or,
in either case, any other authority which replaces all or any of its functions);
or
(b)the
requirements of the European Central Bank.
2.On
the first day of each Interest Period (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the
“Additional
Cost Rate”)
for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Administrative Agent as a weighted average of
the
Lenders’ Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the relevant Loan) and will be expressed as
a
percentage rate per annum.
The Administrative Agent will, at the request of any Borrower or any Lender,
deliver to such Borrower or such Lender as the case may be, a statement setting
forth the calculation of any Mandatory Cost.
3.The
Additional Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender to
the
Administrative Agent. This percentage will be certified by such Lender in its
notice to the Administrative Agent to be its reasonable determination of the
cost (expressed as a percentage of such Lender’s participation in all Loans made
from such Lending Office) of complying with the minimum reserve requirements
of
the European Central Bank in respect of Loans made from that Lending
Office.
4.The
Additional Cost Rate for any Lender lending from a Lending Office in the United
Kingdom will be calculated by the Administrative Agent as follows:
(a)in
relation to any Loan in Sterling:
|
AB+C(B-D)+E
x 0.01
|
per
cent per annum
|
|
100
- (A+C)
|
(b)in
relation to any Loan in any currency other than Sterling:
|
E
x 0.01
|
per
cent per annum
|
|
300
|
Where:
“A” is
the percentage of Eligible Liabilities (assuming these to be in excess of any
NYDOCS03/828371
stated
minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash
ratio requirements.
“B” is
the percentage rate of interest (excluding the Applicable Rate, the Mandatory
Cost and any interest charged on overdue amounts pursuant to the first sentence
of Section
2.08(b)
and, in the case of interest (other than on overdue amounts) charged at the
Default Rate, without counting any increase in interest rate effected by the
charging of the Default Rate) payable for the relevant Interest Period of such
Loan.
“C” is
the percentage (if any) of Eligible Liabilities which that Lender is required
from time to time to maintain as interest bearing Special Deposits with the
Bank
of England.
“D” is
the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.
“E” is
designed to compensate Lenders for amounts payable under the Fees Rules and
is
calculated by the Administrative Agent as being the average of the most recent
rates of charge supplied by the Lenders to the Administrative Agent pursuant
to
paragraph
7
below and expressed in pounds per £1,000,000.
5.For
the purposes of this Schedule:
(a)“Eligible
Liabilities”
and “Special
Deposits”
have the meanings given to them from time to time under or pursuant to the
Bank
of England Act 1998 or (as may be appropriate) by the Bank of
England;
(b)“Fees
Rules”
means the rules on periodic fees contained in the FSA Supervision Manual or
such
other law or regulation as may be in force from time to time in respect of
the
payment of fees for the
acceptance of deposits;
(c)“Fee
Tariffs”
means the fee tariffs specified in the Fees Rules under the activity group
A.1
Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant
to the Fees Rules but taking into account any applicable discount rate);
and
(d)“Tariff
Base”
has the meaning given to it in, and will be calculated in accordance with,
the
Fees Rules.
▇.▇▇
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e.
5% will be included in the formula as 5 and not as 0.05). A negative result
obtained by subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7.If
requested by the Administrative Agent or any Borrower, each Lender with a
Lending Office in the United Kingdom or a Participating Member State shall,
as
soon as
NYDOCS03/828371
practicable
after publication by the Financial Services Authority, supply to the
Administrative Agent and such Borrower, the rate of charge payable by such
Lender to the Financial Services Authority pursuant to the Fees Rules in respect
of the relevant financial year of the Financial Services Authority (calculated
for this purpose by such Lender as being the average of the Fee Tariffs
applicable to such Lender for that financial year) and expressed in pounds
per
£1,000,000 of the Tariff Base of such Lender.
8.Each
Lender shall supply any information required by the Administrative Agent for
the
purpose of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information in writing on
or
prior to the date on which it becomes a Lender:
(a)the
jurisdiction of the Lending Office out of which it is making available its
participation in the relevant Loan; and
(b)any
other information that the Administrative Agent may reasonably require for
such
purpose.
Each
Lender shall promptly notify the Administrative Agent in writing of any change
to the information provided by it pursuant to this paragraph.
9.The
percentages of each Lender for the purpose of A and C above and the rates of
charge of each Lender for the purpose of E above shall be determined by the
Administrative Agent based upon the information supplied to it pursuant to
paragraphs
7
and 8
above and on the assumption that, unless a Lender notifies the Administrative
Agent to the contrary, each Lender’s obligations in relation to cash ratio
deposits and Special Deposits are the same as those of a typical bank from
its
jurisdiction of incorporation with a Lending Office in the same jurisdiction
as
its Lending Office.
10.The
Administrative Agent shall have no liability to any Person if such determination
results in an Additional Cost Rate which over- or under-compensates any Lender
and shall be entitled to assume that the information provided by any Lender
pursuant to paragraphs
3,
7
and 8
above is true and correct in all respects.
11.The
Administrative Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the Additional
Cost
Rate for each Lender based on the information provided by each Lender pursuant
to paragraphs
3,
7
and 8
above.
12.Any
determination by the Administrative Agent pursuant to this Schedule in relation
to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and binding
on all parties hereto.
13.The
Administrative Agent may from time to time, after consultation with the
Borrowers and the Lenders, determine and notify to all parties any amendments
which are required to be made to this Schedule in order to comply with any
change in law, regulation or any requirements from time to time imposed by
the
Bank of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which
NYDOCS03/828371
replaces
all or any of its functions) and any such determination shall, in the absence
of
manifest error, be conclusive and binding on all parties hereto.
NYDOCS03/828371
SCHEDULE
2.1
COMMITMENTS
AND
PRO RATA SHARES
|
Lender
|
Tranche
A Commitment
|
Tranche
B Commitment
|
Tranche
C Commitment
|
Tranche
D Commitment
|
Swing
Line Commitment
|
Commitment
Cap
|
|
Bank
of America, N.A. (Tranche C Commitment is held by Bank of America,
Canada
Branch)
|
557,333,333
|
31,333,333
|
41,666,667
|
50,666,667
|
1,000,000,000
|
603,333,333
|
|
Citicorp
USA, Inc. (Tranche C Commitment is held by Citibank, N.A., Canadian
Branch)
|
557,333,333
|
31,333,333
|
41,666,667
|
50,666,667
|
1,000,000,000
|
603,333,333
|
|
Bank
of Tokyo-Mitsubishi UFJ, Ltd (Tranche C Commitment is held by Bank
of
Tokyo Mitsubishi UFJ (Canada))
|
449,333,333
|
24,666,667
|
33,333,333
|
40,000,000
|
0
|
483,333,333
|
|
BNP
Paribas (Tranche C Commitment is held by BNP Paribas
(Canada))
|
456,000,000
|
24,666,667
|
16,666,667
|
40,000,000
|
0
|
483,333,333
|
|
▇▇
▇▇▇▇▇▇ Chase Bank NA (Tranche C Commitment is held by ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Bank, N.A., Toronto Branch)
|
456,000,000
|
24,666,667
|
16,666,667
|
40,000,000
|
0
|
483,333,333
|
|
Barclays
Bank PLC
|
321,333,333
|
16,000,0000
|
0
|
28,666,667
|
0
|
333,333,333
|
1
|
Deutsche
Bank AG, New York Branch (Tranche C Commitment is held by Deutsche
Bank
AG, Canada Branch)
|
311,333,333
|
16,000,0000
|
16,666,667
|
28,666,667
|
0
|
333,333,333
|
|
HSBC
Bank USA, National Association (Tranche C Commitment is held by HSBC
Bank
USA, National Assoication (Toronto Branch)
|
311,333,333
|
16,000,0000
|
16,666,667
|
28,666,667
|
0
|
333,333,333
|
|
Royal
Bank of Canada
|
248,000,000
|
16,000,0000
|
133,333,333
|
28,666,667
|
0
|
333,333,333
|
|
Sumitomo
Mitsui Banking Corporation (Tranche C Commitment is held by Sumitomo
Mitsui Banking Corporation of Canada)
|
304,666,667
|
16,000,0000
|
33,333,333
|
28,666,667
|
0
|
333,333,333
|
|
Banco
Santander Central Hispano, S.A. NY Branch
|
224,500,000
|
11,333,333
|
0
|
21,333,333
|
0
|
233,333,333
|
|
Credit
Suisse, Cayman Islands Branch
|
224,500,000
|
11,333,333
|
0
|
21,333,333
|
0
|
233,333,333
|
|
Fortis
Bank S.A./N.V.
|
228,000,000
|
0
|
0
|
21,333,333
|
0
|
233,333,333
|
|
ING
Belgium Financial Services Dublin Limited
|
224,500,000
|
11,333,333
|
0
|
21,333,333
|
0
|
233,333,333
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇ Bank USA
|
0
|
233,333,333
|
0
|
0
|
0
|
233,333,333
|
2
|
Mizuho
Corporate Bank, Ltd. Los Angeles Agency (Tranche C Commitment is
held by
Mizuho Corporate Bank (Canada))
|
214,500,000
|
11,333,333
|
16,666,667
|
21,333,333
|
0
|
233,333,333
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Bank
|
224,500,000
|
11,333,333
|
0
|
21,333,333
|
0
|
233,333,333
|
|
The
Royal Bank of Scotland plc
|
224,500,000
|
11,333,333
|
0
|
21,333,333
|
0
|
233,333,333
|
|
The
Toronto Dominion Bank
|
187,833,333
|
11,333,333
|
66,666,667
|
21,333,333
|
0
|
233,333,333
|
|
UBS
Loan Finance LLC (Tranche C Commitment is held by UBS AG Canada
Branch)
|
214,500,000
|
11,333,333
|
16,666,667
|
21,333,333
|
0
|
233,333,333
|
|
Bank
of Montreal
|
84,500,000
|
8,000,000
|
66,666,667
|
12,666,667
|
0
|
126,666,667
|
|
CIBC,
Inc. (Tranche C Commitment is held by Canadian Imperial Bank of
Commerce)
|
67,833,333
|
8,000,000
|
100,000,000
|
12,666,667
|
0
|
126,666,667
|
|
Dresdner
Bank AG New York Branch and Grand Cayman Branch
|
121,166,667
|
8,000,000
|
0
|
12,666,667
|
0
|
126,666,667
|
|
Intesa
Sanpaolo S.p.A.
|
126,666,667
|
0
|
0
|
0
|
0
|
126,666,667
|
|
Scotiabanc
Inc. (Tranche C Commitment is held by The Bank of Nova
Scotia)
|
104,500,000
|
8,000,000
|
33,333,333
|
12,666,667
|
0
|
126,666,667
|
3
|
Wachovia
Bank, National Association
|
121,166,667
|
8,000,000
|
0
|
12,666,667
|
0
|
126,666,667
|
|
Comerica
Bank
|
63,166,667
|
6,000,000
|
0
|
6,666,667
|
0
|
66,666,667
|
|
Fifth
Third Bank
|
64,833,333
|
6,000,000
|
0
|
0
|
0
|
66,666,667
|
|
KBC
Bank NV Dublin Branch
|
65,000,000
|
0
|
0
|
6,666,667
|
0
|
66,666,667
|
|
Mellon
Bank, N.A.
|
63,166,667
|
6,000,000
|
0
|
6,666,667
|
0
|
66,666,667
|
|
Societe
Generale (Tranche C Commitment is held by Societe Generale (Canada
Branch))
|
53,166,667
|
6,000,000
|
16,666,667
|
6,666,667
|
0
|
66,666,667
|
|
Nordea
Bank Finland plc
|
63,833,333
|
4,000,000
|
0
|
6,666,667
|
0
|
66,666,667
|
|
PNC
Bank, National Association
|
63,833,333
|
4,000,000
|
0
|
6,666,667
|
0
|
66,666,667
|
|
The
Bank of New York
|
63,833,333
|
4,000,000
|
0
|
6,666,667
|
0
|
66,666,667
|
|
Banco
Popular de Puerto Rico
|
0
|
50,000,000
|
0
|
0
|
0
|
50,000,000
|
|
TOTAL:
|
7,066,666,667
|
666,666,667
|
666,666,667
|
666,666,667
|
2,000,000,000
|
8,000,000,000
|
4
|
Lender
|
|
|
Pro
Rata Share of Tranche C
|
Pro
Rata Share of Tranche D
|
Pro
Rata Share of Commitment Cap
|
|
Bank
of America, N.A. (Tranche C Commitment is held by Bank of America,
Canada
Branch)
|
7.886792462%
|
4.699999948%
|
6.250000047%
|
7.599999746%
|
7.541666675%
|
|
Citicorp
USA, Inc. (Tranche C Commitment is held by Citibank, N.A., Canadian
Branch)
|
7.886792462%
|
4.699999948%
|
6.250000047%
|
7.599999896%
|
7.541666675%
|
|
Bank
of Tokyo-Mitsubishi UFJ, Ltd (Tranche C Commitment is held by Bank
of
Tokyo Mitsubishi UFJ (Canada))
|
6.356490561%
|
3.700000048%
|
4.999999948%
|
5.999999997%
|
6.041666663%
|
|
BNP
Paribas (Tranche C Commitment is held by BNP Paribas
(Canada))
|
6.452830188%
|
3.700000048%
|
2.500000049%
|
5.999999997%
|
6.041666663%
|
|
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ Bank NA (Tranche C Commitment is held by ▇▇ ▇▇▇▇▇▇ Chase
Bank, N.A., Toronto Branch)
|
6.452830188%
|
3.700000048%
|
2.500000049%
|
5.999999997%
|
6.041666663%
|
|
Barclays
Bank PLC
|
4.547169806%
|
2.399999999%
|
0
|
4.300000048%
|
4.166666663%
|
|
Deutsche
Bank AG, New York Branch (Tranche C Commitment is held by Deutsche
Bank
AG, Canada Branch)
|
4.▇▇▇▇▇▇▇▇▇%
|
2.399999999%
|
2.500000049%
|
4.300000048%
|
4.166666663%
|
|
HSBC
Bank USA, National Association (Tranche C Commitment is held by HSBC
Bank
USA, National Assoication (Toronto Branch)
|
4.405660372%
|
2.399999999%
|
2.500000049%
|
4.300000048%
|
4.▇▇▇▇▇▇▇▇▇%
|
|
Royal
Bank of Canada
|
3.▇▇▇▇▇▇▇▇▇%
|
2.▇▇▇▇▇▇▇▇▇%
|
19.▇▇▇▇▇▇▇▇▇%
|
4.▇▇▇▇▇▇▇▇▇%
|
4.166666663%
|
|
Sumitomo
Mitsui Banking Corporation (Tranche C Commitment is held by Sumitomo
Mitsui Banking Corporation of Canada)
|
4.311320759%
|
2.399999999%
|
4.999999948%
|
4.300000048%
|
4.166666663%
|
|
Banco
Santander Central Hispano, S.A. NY Branch
|
3.176886792%
|
1.699999949%
|
0
|
3.199999948%
|
2.916666663%
|
|
Credit
Suisse, Cayman Islands Branch
|
3.176886792%
|
1.699999949%
|
0
|
3.199999948%
|
2.916666663%
|
|
Fortis
Bank S.A./N.V.
|
3.226415094%
|
0
|
0
|
3.199999948%
|
2.916666663%
|
|
ING
Belgium Financial Services Dublin Limited
|
3.176886792%
|
1.699999949%
|
0
|
3.199999948%
|
2.916666663%
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇ Bank USA
|
0
|
35.000000383%
|
0
|
0
|
2.916666663%
|
|
Mizuho
Corporate Bank, Ltd. Los Angeles Agency (Tranche C Commitment is
held by
Mizuho Corporate Bank (Canada))
|
3.▇▇▇▇▇▇▇▇▇%
|
1.699999949%
|
2.500000049%
|
3.199999948%
|
2.916666663%
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Bank
|
3.176886792%
|
1.699999949%
|
0
|
3.199999948%
|
2.916666663%
|
|
The
Royal Bank of Scotland plc
|
3.176886792%
|
1.699999949%
|
0
|
3.199999948%
|
2.▇▇▇▇▇▇▇▇▇%
|
|
The
Toronto Dominion Bank
|
2.▇▇▇▇▇▇▇▇▇%
|
1.▇▇▇▇▇▇▇▇▇%
|
10.▇▇▇▇▇▇▇▇▇%
|
3.▇▇▇▇▇▇▇▇▇%
|
2.916666663%
|
|
UBS
Loan Finance LLC (Tranche C Commitment is held by UBS AG Canada
Branch)
|
3.035377358%
|
1.699999949%
|
2.500000049%
|
3.199999948%
|
2.▇▇▇▇▇▇▇▇▇%
|
|
Bank
of Montreal
|
1.▇▇▇▇▇▇▇▇▇%
|
1.▇▇▇▇▇▇▇▇▇%
|
10.▇▇▇▇▇▇▇▇▇%
|
1.▇▇▇▇▇▇▇▇▇%
|
1.583333338%
|
|
CIBC,
Inc. CIBC, Inc. (Tranche C Commitment is held by Canadian Imperial
Bank of
Commerce)
|
0.▇▇▇▇▇▇▇▇▇%
|
1.▇▇▇▇▇▇▇▇▇%
|
14.▇▇▇▇▇▇▇▇▇%
|
1.▇▇▇▇▇▇▇▇▇%
|
1.583333338%
|
|
Dresdner
Bank AG New York Branch and Grand Cayman Branch
|
1.714622646%
|
1.200000001%
|
0
|
1.900000049%
|
1.583333338%
|
|
Intesa
Sanpaolo S.p.A.
|
1.792452835%
|
0
|
0
|
0
|
1.583333338%
|
|
Scotiabanc
Inc. (Tranche C Commitment is held by The Bank of Nova
Scotia)
|
1.▇▇▇▇▇▇▇▇▇%
|
1.▇▇▇▇▇▇▇▇▇%
|
4.▇▇▇▇▇▇▇▇▇%
|
1.▇▇▇▇▇▇▇▇▇%
|
1.583333338%
|
|
Wachovia
Bank, National Association
|
1.714622646%
|
1.200000001%
|
0
|
1.900000049%
|
1.583333338%
|
|
Comerica
Bank
|
0.893867929%
|
0.900000001%
|
0
|
1.000000050%
|
0.833333338%
|
|
Fifth
Third Bank
|
0.917452825%
|
0.900000000%
|
0
|
0
|
0.833333338%
|
|
KBC
Bank NV Dublin Branch
|
0.919811321%
|
0
|
0
|
1.000000050%
|
0.833333338%
|
|
Mellon
Bank, N.A.
|
0.893867929%
|
0.900000000%
|
0
|
1.000000050%
|
0.833333338%
|
|
Societe
Generale (Tranche C Commitment is held by Societe Generale (Canada
Branch))
|
0.752358495%
|
0.900000000%
|
2.500000049%
|
1.000000050%
|
0.833333338%
|
|
Nordea
Bank Finland plc
|
0.903301882%
|
0.600000000%
|
0
|
1.000000050%
|
0.833333338%
|
|
PNC
Bank, National Association
|
0.903301882%
|
0.600000000%
|
0
|
1.000000050%
|
0.833333338%
|
|
The
Bank of New York
|
0.903301882%
|
0.600000000%
|
0
|
1.000000050%
|
0.833333338%
|
|
Banco
Popular de Puerto Rico
|
0
|
7.499999996%
|
0
|
0
|
0.625000000%
|
|
TOTAL:
|
100.00%
|
100.00%
|
100.00%
|
100.00%
|
100%
|
SCHEDULE
4.1(d)
LIST
OF AGREEMENTS TO BE TERMINATED
Agreements
to be terminated on or before the Closing Date
Full
Name Amount Date
|
Toyota
Financial Services (UK) plc, Toyota (GB) plc and
Toyota
Motor
Finance
Netherlands)
B.V.
€800,000,000
Facility
Agreement.
|
€550,000,000
|
12/16/2005
|
Total: €550,000,000
SCHEDULE
9.2
ADMINISTRATIVE
AGENT’S OFFICE,
CERTAIN
ADDRESSES FOR NOTICES
ADMINISTRATIVE
AGENT:
Administrative
Agent’s
Office
(for
Notices of Payments and Requests for Loans):
Bank
of America, N.A.
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Mail
Code: CA4-702-02-25
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
Telephone:(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Facsimile:
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Electronic
Mail:
▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
(for
Payments):
US
Dollars
Bank
of America NA
New
York, NY
ABA
▇▇▇▇▇▇▇▇▇
Acct:
3750836479
Ref:
Toyota Motor Credit
Attn:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Euro
Bank
of America
London,
England
Swift
▇▇▇▇▇▇▇▇
Acct:
▇▇▇▇▇▇▇▇
Ref:
Toyota Motor Credit
Sterling
Bank
of America
London,
England
Sort
Code: 16-50-50
Swift
Code ▇▇▇▇▇▇▇▇
Acct:
65280027
Ref:
Toyota Motor Credit
Canadian
Dollars
Bank
of America
Toronto
Canada
Transit
# 01312
Swift
Code: ▇▇▇▇▇▇▇▇
Acct:
711465003220
Ref:
Toyota Motor Credit
(Other
Notices as Administrative Agent):
Bank
of America, N.A.
Agency
Management
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail
Code: NY1-503-04-03
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
Telephone:(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Facsimile:
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Electronic
Mail:
▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
CANADIAN
SUB-AGENT:
(for
Notices of Payments and Requests for Loans):
Bank
of America, N.A., Canada Branch
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
Telephone:(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Facsimile:
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Electronic
Mail:
▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
(for
Payments):
|
|
US
Dollar
|
|
BankAmerica
International New York
|
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇
|
|
Swift
Code: ▇▇▇▇▇▇▇▇
▇▇▇#
▇▇▇▇▇▇▇▇▇
|
|
For
the Account of: Bank of America, Canada Branch
|
|
Account
#: ▇▇▇▇▇-▇▇▇▇▇
|
|
Swift
Code: ▇▇▇▇▇▇▇▇
|
|
Ref:
Toyota Credit Canada Inc.
|
|
Canadian
Dollar
|
|
LVTS
- Large Value Transaction System
|
|
|
Bank
of America, N.A., Canada Branch
|
|
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
|
|
|
Attn:
Agency Loans Admin.
|
|
|
Swift
Code: ▇▇▇▇▇▇▇▇
|
|
|
Transit
#: 56792-241 Account #: ▇▇▇▇▇▇▇▇
|
|
|
Ref:
Toyota Credit Canada Inc.
|
|
|
Euro
|
|
|
BANK
OF AMERICA NT & SA LONDON SWIFT CODE ▇▇▇▇▇▇▇▇
|
|
|
FOR
THE ACCOUNT OF BANK OF AMERICA NA CANADA BRANCH,
ACCOUNT
# 6008-▇▇▇▇▇▇▇▇, SWIFT CODE: ▇▇▇▇▇▇▇▇.
|
|
|
ATTENTION:
LOANS DEPARTMENT.
Ref:
Toyota Credit Canada Inc.
|
|
|
Sterling
|
|
|
BANK
OF AMERICA NT & SA LONDON SWIFT CODE ▇▇▇▇▇▇▇▇
|
|
|
FOR
THE ACCOUNT OF BANK OF AMERICA NA CANADA BRANCH, ACCOUNT # 14866-018,
SWIFT CODE: ▇▇▇▇▇▇▇▇.
|
|
|
ATTENTION:
LOANS DEPARTMENT.
Ref:
Toyota Credit Canada Inc.
|
|
SWING
LINE AGENT:
(for
Notices of Payments and Requests for Loans):
Bank
of America NA
▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax
number: ▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attention: Loans
Agency
|
(for
Payments):
|
US
Dollars
BANK
OF AMERICA NA, NEW YORK
ACCOUNT
BANK OF AMERICA NA, LONDON
A/C
6550360564
ATTN:
LOANS AGENCY
Euro
BANK
OF AMERICA NA., LONDON (SWIFT BOFAGB22)
ACCOUNT
NUMBER: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
ATTN:
LOANS AGENCY
Sterling
BANK
OF AMERICA N.A., LONDON (SWIFT BOFAGB22)
CHAPS
SORT CODE: 16-50-50
ACCOUNT
NO. ▇▇▇▇▇▇▇▇
ATTN:
LOANS AGENCY
Canadian
Dollar
BANK
OF AMERICA NA., TORONTO CANADA BRANCHE
ACCOUNT
BANK OF AMERICA NA, LONDON
ACCOUNT
NO. ▇▇▇▇▇▇▇▇
ATTN:
LOANS AGENCY
BORROWERS:
Toyota
Motor Credit Corporation
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box 2958
Mail
Stop NF-10
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Cash Manager and ▇▇▇▇ ▇▇▇▇▇▇, National Treasury
Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Toyota
Motor Finance (Netherlands) B.V.
c/o
Toyota Financial Services (UK) plc
Great
Burgh
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention:
Treasury Manager
Telephone:
▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile:
▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
With
a copy to:
Toyota
Motor Credit Corporation
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box 2958
Mail
Stop NF-10
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Cash Manager and ▇▇▇▇ ▇▇▇▇▇▇, National Treasury
Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Toyota
Financial Services (UK) plc
Great
Burgh
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention:
Treasury Manager
Telephone:
▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile:
▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
With
a copy to:
Toyota
Motor Credit Corporation
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box 2958
Mail
Stop NF-10
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Cash Manager and ▇▇▇▇ ▇▇▇▇▇▇, National Treasury
Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Toyota
Kreditbank GmbH
c/o
Toyota Financial Services (UK) plc
Great
Burgh
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention:
Treasury Manager
Telephone:
▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile:
▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
With
a copy to:
Toyota
Motor Credit Corporation
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box 2958
Mail
Stop NF-10
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Cash Manager and ▇▇▇▇ ▇▇▇▇▇▇, National Treasury
Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Toyota
Credit de Puerto Rico Corp.
c/o
Toyota Motor Credit Corporation
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box 2958
Mail
Stop NF-10
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Cash Manager and ▇▇▇▇ ▇▇▇▇▇▇, National Treasury
Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Toyota
Credit Canada Inc.
▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention:
Treasury Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
With
a copy to:
Toyota
Motor Credit Corporation
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box 2958
Mail
Stop NF-10
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Cash Manager and ▇▇▇▇ ▇▇▇▇▇▇, National Treasury
Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Toyota
Leasing GmbH
c/o
Toyota Financial Services (UK) plc
Great
Burgh
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention:
Treasury Manager
Telephone:
▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile:
▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
With
a copy to:
Toyota
Motor Credit Corporation
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box 2958
Mail
Stop NF-10
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Cash Manager and ▇▇▇▇ ▇▇▇▇▇▇, National Treasury
Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Website:
None
EXHIBIT
A-1
FORM
OF COMMITTED LOAN NOTICE
Date:
___________, _____
|
To:
|
Bank
of America, N.A., as Administrative
Agent
|
Ladies
and Gentlemen:
Reference
is made to that certain Five Year Credit Agreement, dated as of March 28, 2007
(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 Kreditbank 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 Leasing 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 and Citigroup Global
Markets Inc., as Joint Lead Arrangers and Joint Book Managers, Citicorp USA,
Inc., as Syndication Agent, and The Bank of Tokyo-Mitsubishi UFJ, 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 [US$][CDN$][€][£]___.
3. Comprised
of ____. [Type
of Committed Loan requested]
4. For
Eurocurrency Rate Loans: with an Interest Period of___
months.
5. For
Bankers’ Acceptances, Drafts and BA Equivalent Notes: with a BA Maturity Date of
__ days.
[The
Committed Borrowing requested herein complies with the proviso to the first
sentence of Section
2.1[(a)][(b)][(c)][(d)]
of the Agreement.]
[The
undersigned hereby represents and warrants that the conditions set forth in
Section
4.2(a)
and (b)
have been satisfied on and as of the date the Committed Loans are borrowed,
including, without limitation, that the Borrowing is within the Committed
Borrower’s corporate
A-1-
1
Form
of Committed Loan Notice
powers,
has been duly authorized by all necessary corporate action, and the amount
of
the Committed Borrowing does not exceed such authorization.]
[TOYOTA
MOTOR FINANCE (NETHERLANDS) B.V.]
[TOYOTA
MOTOR CREDIT CORPORATION]
[TOYOTA
FINANCIAL SERVICES (UK) PLC]
[TOYOTA
KREDITBANK GMBH]
[TOYOTA
CREDIT DE PUERTO RICO CORP.]
[TOYOTA
CREDIT CANADA INC.]
[TOYOTA
LEASING GMBH]
By:
Name:
Title:
A-1-2
Form
of Committed Loan Notice
EXHIBIT
A-2
FORM
OF SWING LINE LOAN NOTICE
Date:
___________, _____
|
To:
|
Bank
of America, N.A., as Swing Line
Agent
|
|
Bank
of America, N.A., as Administrative
Agent
|
Ladies
and Gentlemen:
Reference
is made to that certain Five Year Credit Agreement, dated as of March 28, 2007
(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 Kreditbank 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 Leasing 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 and Citigroup Global
Markets Inc., as Joint Lead Arrangers and Joint Book Managers, Citicorp USA,
Inc., as Syndication Agent, and The Bank of Tokyo-Mitsubishi UFJ, Ltd. and
JPMorgan Chase Bank, N.A., as Documentation Agents.
The
undersigned hereby requests a Swing Line Loan:
1. On__
(a Business Day).
2. In
the amount of [US$][CDN$][€][£]_____.
The
Swing Line Borrowing requested herein complies with the requirements of the
provisos to the first sentence of Section
2.16(a)
of the Agreement.
The
undersigned hereby represents and warrants that the conditions set forth in
Section
4.2(a)
and (b)
have been satisfied on and as of the date the Committed Loans are borrowed,
including, without limitation, that the Borrowing is within the Committed
Borrower’s corporate powers, has been duly authorized by all necessary corporate
action, and the amount of the Committed Borrowing does not exceed such
authorization.
[TOYOTA
MOTOR FINANCE (NETHERLANDS) B.V.]
[TOYOTA
MOTOR CREDIT CORPORATION]
A-2-
1
Form
of Committed Loan Notice
[TOYOTA
FINANCIAL SERVICES (UK) PLC]
[TOYOTA
KREDITBANK GMBH]
[TOYOTA
CREDIT DE PUERTO RICO CORP.]
[TOYOTA
CREDIT CANADA INC.]
[TOYOTA
LEASING GMBH]
By:
Name:
Title:
A-2-
2
Form
of Committed Loan Notice
EXHIBIT
B
FORM
OF NOTE
__________,
200_
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 28,
2007 (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 Kreditbank 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 Leasing 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 and Citigroup Global
Markets Inc., as Joint Lead Arrangers and Joint Book Managers, Citicorp USA,
Inc., as Syndication Agent, and The Bank of Tokyo-Mitsubishi UFJ, 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 US Dollars in immediately available funds at the Administrative
Agent's
Office. If any amount is not paid in full when due hereunder, such unpaid amount
shall bear interest, to be paid upon demand, from the due date thereof until
the
date of actual payment (and before as well as after judgment) computed at the
per annum rate set forth in the Agreement.
This
Note is one of the Notes referred to in the Agreement, is entitled to the
benefits thereof and may be prepaid in whole or in part subject to the terms
and
conditions provided therein. Upon the occurrence and continuation of one or
more
of the Events of Default specified in the Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due
and
payable all as provided in the Agreement. Loans made by the Lender shall be
evidenced by one or more loan accounts or records maintained by the Lender
in
the ordinary course of business. The Lender may also attach schedules to this
Note and endorse thereon the date, amount and maturity of its Loans and payments
with respect thereto.
B-
1
Form
of Note
THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE
OF NEW YORK.
[TOYOTA
MOTOR FINANCE (NETHERLANDS) B.V.]
[TOYOTA
MOTOR CREDIT CORPORATION]
[TOYOTA
FINANCIAL SERVICES (UK) PLC]
[TOYOTA
KREDITBANK GMBH]
[TOYOTA
CREDIT DE PUERTO RICO CORP.]
[TOYOTA
CREDIT CANADA INC.]
[TOYOTA
LEASING GMBH]
By:
Name:
Title:
B-
2
Form
of Note
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
|
B-3
Form
of Note
EXHIBIT
C
FORM
OF COMPLIANCE CERTIFICATE
As
required by Section
6.1(c)
of the Five Year Credit Agreement, dated as of March 28, 2007 (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 Kreditbank 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 Leasing 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 and Citigroup Global
Markets Inc., as Joint Lead Arrangers and Joint Book Managers, Citicorp USA,
Inc., as Syndication Agent, and The Bank of Tokyo-Mitsubishi UFJ, 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 Finance (Netherlands) B.V.] [Toyota Motor Credit Corporation]
[Toyota Financial Services (UK) plc] [Toyota Kreditbank GmbH] [Toyota Credit
de
Puerto Rico Corp.] [Toyota Credit Canada Inc.] [Toyota Leasing GmbH] (the
“Company”), and further certify on behalf of the Company that, to the best of my
knowledge, no Default (as defined in the Agreement) under the Agreement exists
as of the date of this Certificate.
Certified
this _____ day of ______________, 200_
Name:
___________________________________
C-
1
Form
of Compliance Certificate
EXHIBIT
D
ASSIGNMENT
AND ASSUMPTION
This
Assignment and Assumption (this “Assignment
and Assumption”)
is
dated as of the Effective Date set forth below and is entered into by and
between [Insert
name of Assignor]
(the
“Assignor”)
and
[Insert
name of Assignee]
(the
“Assignee”).
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Credit Agreement identified below (the “Credit
Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to
and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For
an
agreed consideration, the Assignor hereby irrevocably sells and assigns to
the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor's rights
and
obligations as a Lender under the Credit Agreement and any other documents
or
instruments delivered pursuant thereto to the extent related to the amount
and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
and
(ii) to the extent permitted to be assigned under applicable Law, all claims,
suits, causes of action and any other right of the Assignor (in its capacity
as
a Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in
any
way based on or related to any of the foregoing, including, but not limited
to,
contract claims, tort claims, malpractice claims, statutory claims and all
other
claims at Law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the
“Assigned
Interest”).
Such
sale and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor.
1.Assignor:______________________________
|
2.Assignee:____________________________________
[and
is an Affiliate/Approved Fund of [identify
Lender]1]
|
|
3.Borrower(s):[Toyota
Motor Finance (Netherlands) B.V.] [Toyota Motor Credit Corporation]
[Toyota Financial Services (UK) Plc] [Toyota Kreditbank GmbH] [Toyota
Credit de Puerto Rico Corp.] [Toyota Credit Canada Inc.] [Toyota
Leasing
GmbH]
|
|
4.Administrative
Agent: ______________________, as the administrative agent under
the
Credit Agreement
|
___________________
1
Select as applicable.
D-1
Assignment
and Assumption
|
▇.▇▇▇▇▇▇
Agreement:Five
Year Credit Agreement, dated as of
March 28, 2007 (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 Kreditbank 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 Leasing
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 and Citigroup Global Markets
Inc.,
as Joint Lead Arrangers and Joint Book Managers, Citicorp USA, Inc.,
as
Syndication Agent, and The Bank of Tokyo-Mitsubishi UFJ, Ltd. and
JPMorgan
Chase Bank, N.A., as Documentation
Agents.
|
6.Assigned
Interest:2
|
Facility
Assigned:
[Tranche
A] [Tranche B] [Tranche C] [Tranche D]
|
Aggregate
Amount
of
Tranche
[A][B] [C] [D] Commitment/Loans
for
all Lenders*
|
Amount
of
Tranche
[A][B] [C][D] Commitment/Loans
Assigned*
|
Percentage
Assigned
of
Tranche
[A][B] [C][D] Commitment/Loans3
|
Assignee’s
Commitment Cap
|
|
|
|
|
|
|
|
Commitment/Committed
Loans being assigned
|
US$______________
|
US$______________
|
________________%
|
US$______________
|
[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.]
_____________________
*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.
[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
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:
__________
5
To
be inserted in the case of an assignment by a Tranche C Lender.
D-3
Assignment
and Assumption
[Consented
to and]6 Accepted:
[NAME
OF
ADMINISTRATIVE AGENT], as
Administrative Agent
By:
_________________________________
Title:
[Consented
to:]7
By:
_________________________________
Title:
____________________
6
To be
added only if the consent of the Administrative Agent is required by the terms
of the Credit Agreement.
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.
D-4
Assignment
and Assumption
ANNEX
1 TO ASSIGNMENT AND ASSUMPTION
(FIVE
YEAR CREDIT AGREEMENT, DATED AS OF MARCH 28, 2007 (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 KREDITBANK 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 LEASING 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 AND CITIGROUP GLOBAL
MARKETS INC., AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS, CITICORP USA,
INC., AS SYNDICATION AGENT, AND THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. AND
JPMORGAN CHASE BANK, N.A., AS DOCUMENTATION AGENTS.)
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
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
D-
5
Assignment
and Assumption
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.
D-
6
Assignment
and Assumption
EXHIBIT
E
FORM
OF MONEY MARKET QUOTE REQUEST
Date:
___________, _____
|
To:
|
Bank
of America, N.A., as Administrative
Agent
|
Ladies
and Gentlemen:
Reference
is made to that certain Five Year Credit Agreement, dated as of March 28, 2007
(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 Kreditbank 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 Leasing 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 and Citigroup Global
Markets Inc., as Joint Lead Arrangers and Joint Book Managers, Citicorp USA,
Inc., as Syndication Agent, and The Bank of Tokyo-Mitsubishi UFJ, 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 Absolute Rate Loans
____Money
Market Margin for
Money
Market LIBOR Loans
1. On _____ (a
Business Day).
2. In
the amount of US$ ________.
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 FINANCE (NETHERLANDS) B.V.]
[TOYOTA
MOTOR CREDIT CORPORATION]
[TOYOTA
FINANCIAL SERVICES (UK) PLC]
[TOYOTA
KREDITBANK GMBH]
[TOYOTA
CREDIT DE PUERTO RICO CORP.]
[TOYOTA
CREDIT CANADA INC.]
[TOYOTA
LEASING GMBH]
▇-
▇
Form
of Money Market Quote Request
By:
Name:
Title:
▇-
▇
Form
of Money Market Quote Request
EXHIBIT
F
FORM
OF INVITATION FOR MONEY MARKET QUOTES
Date:
___________, _____
|
To:
|
Lenders
party to the Agreement (as defined
below)
|
Ladies
and Gentlemen:
Reference
is made to that certain Five Year Credit Agreement, dated as of March 28, 2007
(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 Kreditbank 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 Leasing 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 and Citigroup Global
Markets Inc., as Joint Lead Arrangers and Joint Book Managers, Citicorp USA,
Inc., as Syndication Agent, and The Bank of Tokyo-Mitsubishi UFJ, Ltd. and
JPMorgan Chase Bank, N.A., as Documentation Agents.
On
behalf of [Toyota Motor Finance (Netherlands) B.V.] [Toyota Motor Credit
Corporation] [Toyota Financial Services (UK) plc] [Toyota Kreditbank GmbH]
[Toyota Credit de Puerto Rico Corp.] [Toyota Credit Canada Inc.] [Toyota Leasing
GmbH], you are invited to submit Money Market Quotes for (select
one):
____Money
Market Absolute Rate for
Money
Market Absolute Rate Loans
_____Money
Market Margin for
Money
Market LIBOR Loans
1. On
_______________________________________ (a Business Day).
2. In
the amount of US$ _______.
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].
BANK
OF AMERICA, N.A., as Administrative Agent
F-1
Form
of
Invitation for Money Market Quotes
By:
Authorized
Officer
F-2
Form
of
Invitation for Money Market Quotes
EXHIBIT
G
FORM
OF MONEY MARKET QUOTE
Date:
___________, _____
|
To:
|
Bank
of America, N.A., as Administrative
Agent
|
Ladies
and Gentlemen:
Reference
is made to that certain Five Year Credit Agreement, dated as of March 28, 2007
(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 Kreditbank 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 Leasing 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 and Citigroup Global
Markets Inc., as Joint Lead Arrangers and Joint Book Managers, Citicorp USA,
Inc., as Syndication Agent, and The Bank of Tokyo-Mitsubishi UFJ, Ltd. and
JPMorgan Chase Bank, N.A., as Documentation Agents.
In
response to your invitation on behalf of [Toyota Motor Finance (Netherlands)
B.V.] [Toyota Motor Credit Corporation] [Toyota Financial Services (UK) plc]
[Toyota Kreditbank GmbH] [Toyota Credit de Puerto Rico Corp.] [Toyota Credit
Canada Inc.] [Toyota Leasing GmbH] 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: _______________________8
|
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:
|
___________________________
8
As specified in the related Invitation.
Form
of Money Market Quote
|
Principal
Amount9
|
Interest
Period10
|
[Money
Market
Margin]11
|
[Absolute
Rate12]
|
|
US$
|
|||
|
US$
|
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
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
US$5,000,000 or larger multiple of US$1,000,000.
10
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
11
Margin
over or under the Eurocurrency Rate determined for the applicable Interest
Period. Specify percentage (to the nearest 1/100,000 of 1%) and specify whether
“PLUS” or “MINUS.”
12
Specify rate of interest per annum (to the nearest 1/10,000th of
1%).
Form
of Money Market Quote
EXHIBIT
H
FORM
OF OPINION OF COUNSEL FOR THE BORROWERS
[To
be supplied]
H-1
Form
of Opinion of Counsel to the Borrower
EXHIBIT
I-1
FORM
OF OPINION Of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
To
the Lenders and the Administrative Agent
Referred
to Below
c/o
Bank of America, N.A.,
[Address]
Re:
Credit Agreement
Ladies
and Gentlemen:
We
have acted as special Commonwealth of Puerto Rico counsel for Bank of America,
N.A., as Administrative Agent (the “Administrative Agent”), in connection with
the Five Year Credit Agreement, dated as of March 28,
2007,
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 Kreditbank 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 Leasing 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 and
Citigroup Global Markets Inc., as Joint Lead Arrangers and Joint Book Managers,
Citicorp USA, Inc., as Syndication Agent, and The Bank of Tokyo-Mitsubishi
UFJ,
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 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 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,
EXHIBITS
I-2, I-3, I-4, I-5
[To
be supplied]
EXHIBIT
J
FORM
OF OPINION OF SHEARMAN & STERLING LLP
__________,
2006
To
the initial Lenders party to the Credit
Agreement
referred to below and to
Bank
of America, N.A., as Administrative Agent
Toyota
Motor Finance (Netherlands) B.V.
Toyota
Motor Credit Corporation
Toyota
Financial Services (UK) plc
Toyota
Kreditbank GmbH
Toyota
Credit De Puerto Rico Corp.
Toyota
Credit Canada Inc.
Toyota
Leasing GmbH
Ladies
and Gentlemen:
We
have acted as counsel to Bank of America, N.A., as Administrative Agent (the
“Agent”),
in connection with the Five Year Credit Agreement, dated as of March
28,
2007
(the “Credit
Agreement”),
among Toyota Motor Finance (Netherlands) B.V., a corporation organized under
the
laws of the Netherlands (“TMFNL”), Toyota Motor Credit Corporation, a California
corporation (“TMMC”), Toyota Financial Services (UK) plc, a corporation
organized under the laws of England (“TFSUK”), Toyota Kreditbank GmbH, a
corporation organized under the laws of Germany (“TKG”), Toyota Credit de Puerto
Rico Corp., a corporation organized under the laws of Puerto Rico (“TCPR”),
Toyota Credit Canada Inc., a corporation organized under the laws of Canada
(“TCCI”), Toyota Leasing GmbH, a corporation organized under the laws of Germany
(“TLG” and, together with TMFNL, TMCC, TFSUK, TKG, TCPR and TCCI, 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.
|
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Opinion
of Shearman & Sterling LLP
The
documents described in the foregoing clauses (a) and (b) are collectively
referred to herein as the “Opinion
Documents”.
We
have also reviewed originals or copies of such other agreements and documents
as
we have deemed necessary as a basis for the opinion expressed
below.
In
our review of the Opinion Documents and other documents, we have
assumed:
| (A) |
The
genuineness of all signatures.
|
| (B) |
The
authenticity of the originals of the documents submitted to
us.
|
| (C) |
The
conformity to authentic originals of any documents submitted to us
as
copies.
|
| (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
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Opinion
of Shearman & Sterling LLP
(c) result
in any conflict with or breach of any agreement or document binding on it of
which any addressee hereof has knowledge, has received notice or has reason
to
know.
(4) Except
with respect to Generally Applicable Law, no authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body or (to the extent the same is required under any agreement
or
document binding on it of which an addressee hereof has knowledge, has received
notice or has reason to know) any other third party is required for the due
execution, delivery or performance by each Borrower of any Opinion Document
or,
if any such authorization, approval, action, notice or filing is required,
it
has been duly obtained, taken, given or made and is in full force and
effect.
We
have not independently established the validity of the foregoing assumptions.
“Generally
Applicable Law”
means the federal law of the United States of America, and the law of the State
of New York (including the rules or regulations promulgated thereunder or
pursuant thereto), that a New York lawyer exercising customary professional
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 (i) 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) and
(ii) possible judicial action giving effect to governmental actions or foreign
laws affecting creditors’ rights.
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Opinion
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Shearman & Sterling LLP
(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) We
express no opinion with respect to the enforceability of any indemnity against
loss in converting into a specified currency the proceeds or amount of a court
judgment in another currency.
(e) Our
opinion is limited to Generally Applicable Law.
A
copy of this opinion letter may be delivered by any of you to any person that
becomes a Lender in accordance with the provisions of the Credit Agreement.
Any
such person may rely on the opinion expressed above as if this opinion letter
were addressed and delivered to such person on the date hereof.
This
opinion letter is rendered to you in connection with the transactions
contemplated by the Opinion Documents. This opinion letter may not be relied
upon by you or any person entitled to rely on this opinion pursuant to the
preceding paragraph for any other purpose without our prior written
consent.
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Opinion
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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,
SLH
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of Shearman & Sterling LLP