Attached files
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported):
March 3,
2010
TOYOTA
MOTOR CREDIT CORPORATION
(Exact
name of registrant as specified in its charter)
California
|
1-9961
|
95-3775816
|
(State
or Other Jurisdiction of Incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
19001
S. Western Avenue
Torrance,
California 90501
|
||
(Address
of principal executive offices, including zip code)
|
||
(310)
468-1310
|
||
(Registrant's
telephone number, including area code)
|
||
Not
Applicable
|
||
(Former
Name or Former Address, if Changed Since Last
Report)
|
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
[ ] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ]
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
|
[ ]
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
|
Item
1.01 Entry into a Material Definitive Agreement
364 Day Credit
Agreement
Toyota
Motor Credit Corporation (“TMCC”) and its wholly-owned subsidiary, Toyota Credit
de Puerto Rico Corp. (“TCPR”) entered into a $5.0 billion 364-day syndicated
credit facility pursuant to a 364 Day Credit Agreement, dated as of March 3,
2010 (the “364 Day Credit Agreement”), among TMCC, TCPR, Toyota Motor Finance
(Netherlands) B.V. (“TMFNL”), Toyota Financial Services (UK) PLC (“TFS(UK)”),
Toyota Leasing GMBH (“TLG”), Toyota Credit Canada Inc. (“TCCI”) and Toyota
Kreditbank GMBH (“TKG”), as Borrowers, BNP Paribas, as Administrative Agent,
Swing Line Agent and Swing Line Lender, BNP Paribas Securities Corp., Citigroup
Global Markets Inc., Banc of America Securities LLC and The Bank of
Tokyo-Mitsubishi UFJ, Ltd. as Joint Lead Arrangers and Joint Book Managers,
Citibank, N.A. and Bank of America, N.A., as Swing Line Lenders, and Citibank,
N.A., Bank of America, N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd. as
Syndication Agents.
TMCC may
take advances under the 364 Day Credit Agreement subject to covenants and
conditions customary in a transaction of this nature, including negative pledge
provisions and limitations on consolidations, mergers and sales of assets. The
364 Day Credit Agreement has a 364 day term, during which TMCC, TMFNL, and
TFS(UK) may make aggregate draws not to exceed $5.0 billion, TCCI and TKG may
each make draws not to exceed $1.0 billion, and TCPR and TLG may each make draws
not to exceed $500 million. All draws under the 364 Day Credit
Agreement may not exceed the total commitment amount of $5 billion. In addition,
the 364 Day Credit Agreement provides for a swingline sub-facility of up to $1
billion. The 364 Day Credit Agreement may be used for general corporate purposes
and was not drawn upon as of the date of this filing.
Item
1.02 Termination of a Material Definitive Agreement
The 364
Day Credit Agreement replaces the 364 Day Credit Agreement, dated as of March 6,
2009 (the “Prior 364 Day Credit Agreement”), among TMCC, TCPR, TMFNL, TFS(UK),
TKG, TLG and TCCI, as Borrowers, Bank of America, N.A, as Administrative Agent,
and the other lenders party thereto, which terminated on March 3,
2010.
The
description set forth in this report of the terms and conditions of the Prior
364 Day Credit Agreement is qualified in its entirety by reference to the full
text of such agreement, which is filed as Exhibit 10.1 to TMCC’s Current Report
on Form 8-K, dated March 6, 2009.
Item
2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant
See
description of the 364 Day Credit Agreement in Item 1.01 above.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
No.
|
Description
|
10.1
|
364
Day Credit Agreement, dated as of March 3, 2010, among Toyota Motor Credit
Corporation, Toyota Motor Finance (Netherlands) B.V., Toyota Financial
Services (UK) PLC, Toyota Leasing GMBH, Toyota Credit de Puerto Rico
Corp., Toyota Credit Canada Inc. and Toyota Kreditbank GMBH, as Borrowers,
BNP Paribas, as Administrative Agent, Swing Line Agent and Swing Line
Lender, BNP Paribas Securities Corp., Citigroup Global Markets Inc., Banc
of America Securities LLC and The Bank of Tokyo-Mitsubishi UFJ, Ltd. as
Joint Lead Arrangers and Joint Book Managers, Citibank, N.A. and Bank of
America, N.A. as Swing Line Lenders, and Citibank, N.A., Bank of America,
N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd. as Syndication
Agents
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
TOYOTA
MOTOR CREDIT CORPORATION
Date:
March 8,
2010 By: /s/ Chris Balliner
Chris
Ballinger
Group
Vice President and
Chief
Financial Officer
EXECUTION
COPY
Published
CUSIP Number: [___________]
364
DAY CREDIT AGREEMENT
Dated as
of March 3, 2010
among
TOYOTA
MOTOR CREDIT CORPORATION,
TOYOTA
MOTOR FINANCE (NETHERLANDS) B.V.,
TOYOTA
FINANCIAL SERVICES (UK) PLC,
TOYOTA
LEASING GMBH,
TOYOTA
CREDIT DE PUERTO RICO CORP.
TOYOTA
CREDIT CANADA INC.,
and
TOYOTA
KREDITBANK GMBH,
as the
Borrowers,
BNP
PARIBAS
as
Administrative Agent, Swing Line Agent and Swing Line Lender
and
The Other
Lenders Party Hereto
____________________________________________
BNP
PARIBAS SECURITIES CORP.
CITIGROUP
GLOBAL MARKETS INC.
BANC
OF AMERICA SECURITIES LLC
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
as Joint
Lead Arrangers and Joint Book Managers
_____________________________________________
CITIBANK,
N.A.,
as
Syndication Agent and Swing Line Lender
______________________________________________
BANK
OF AMERICA, N.A.,
as
Syndication Agent and Swing Line Lender
______________________________________________
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
as
Syndication Agent
______________________________________________
JPMORGAN
CHASE BANK, N.A.
as
Documentation Agent
TABLE OF
CONTENTS
Page
ARTICLE
I DEFINITIONS
|
1
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Section 1.1
Definitions
|
1
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Section 1.2
Other Interpretive
Provisions
|
25
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Section 1.3
Accounting
Terms
|
26
|
Section 1.4
References to Agreements
and Laws
|
26
|
Section 1.5
Exchange Rates; Currency
Equivalents
|
26
|
Section 1.6
Additional Alternative
Currencies
|
26
|
Section
1.7 Change of
Currency
|
27
|
Section
1.8 Times of
Day
|
27
|
ARTICLE
II THE CREDITS
|
28
|
Section
2.1 Committed
Loans
|
28
|
Section
2.2 Borrowings,
Conversions and Continuations of Committed Loans
|
28
|
Section 2.3
Money Market
Loans
|
31
|
Section
2.4 Prepayments
|
33
|
Section 2.5
Termination or Reduction
of Commitments
|
35
|
Section
2.6 Repayment of
Loans
|
36
|
Section
2.7 Interest
|
36
|
Section
2.8 Fees
|
37
|
Section
2.9 Computation of
Interest and Fees
|
38
|
Section
2.10 Evidence of
Debt
|
38
|
Section
2.11 Payments
Generally
|
39
|
Section
2.12 Sharing of
Payments
|
41
|
Section
2.13 Extension of
Maturity Date
|
42
|
i
Section
2.14 Increase in
Commitments
|
44
|
Section
2.15 Drawings of
Bankers’ Acceptances, Drafts and BA Equivalent
Notes
|
45
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Section
2.16 Swing Line
Loans
|
49
|
Section
2.17 Defaulting
Lenders
|
52
|
ARTICLE
III TAXES, YIELD PROTECTION AND ILLEGALITY
|
53
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Section
3.1 Taxes
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53
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Section
3.2 Illegality
|
54
|
Section
3.3 Inability to
Determine Rates
|
56
|
Section
3.4 Increased Cost and
Reduced Return; Capital Adequacy; Reserves on Eurocurrency
Rate Loans
|
56
|
Section
3.5 Funding
Losses
|
57
|
Section
3.6 Matters Applicable
to all Requests for Compensation
|
58
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ARTICLE
IV CONDITIONS
|
59
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Section
4.1 Effectiveness
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59
|
Section
4.2 Conditions to all
Loans
|
60
|
ARTICLE
V REPRESENTATIONS AND WARRANTIES
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61
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Section 5.1
Corporate Existence and
Power
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61
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Section 5.2
Corporate and
Governmental Authorization: No Contravention
|
61
|
Section 5.3
Binding
Effect
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61
|
Section 5.4
Financial
Information
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62
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Section 5.5
Litigation
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62
|
Section 5.6
Compliance with
ERISA
|
62
|
Section 5.7
Taxes
|
62
|
Section 5.8
Subsidiaries
|
63
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Section 5.9
Not an Investment
Company
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63
|
Section 5.10
Disclosure
|
63
|
ii
Section 5.11
Representationsas to Non-US
Obligors
|
63
|
Section 5.11
Representationsas to
TCPR
|
64
|
ARTICLE
VI COVENANTS
|
64
|
Section 6.1
InformationSection
|
64
|
Section 6.2
Maintenance of Property;
Insurance
|
66
|
Section 6.3
Conduct of Business and
Maintenance of Existence
|
66
|
Section 6.4
Compliance with
Laws
|
67
|
Section 6.5
Negative
Pledge
|
67
|
Section 6.6
Consolidations
|
69
|
Section 6.7
Use of
Proceeds
|
70
|
ARTICLE
VII DEFAULTS
|
70
|
Section 7.1
Events of
Default
|
70
|
Section
7.2 Application of
Funds
|
72
|
ARTICLE
VIII
|
72
|
THE
ADMINISTRATIVE AGENT
|
72
|
ARTICLE
VIII THE ADMINISTRATIVE AGENT
|
72
|
Section
8.1 Appointment and
Authorization of Administrative Agent
|
72
|
Section
8.2 Delegation of
Duties
|
73
|
Section
8.3 Liability of
Administrative Agent
|
73
|
Section
8.4 Reliance by
Administrative Agent
|
73
|
Section
8.5 Notice of Default
|
74
|
Section
8.6 Credit Decision;
Disclosure of Information by Administrative Agent
|
74
|
Section
8.7 Indemnification of
Administrative Agent
|
74
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Section
8.8 Administrative Agent
in its Individual Capacity
|
75
|
Section
8.9 Successor
Administrative Agent and Sub-Agents
|
75
|
iii
Section
8.10 Administrative
Agent May File Proofs of Claim
|
76
|
Section
8.11 Other Agents,
Arrangers and Managers
|
77
|
Section
8.12 Sub-Agent
|
77
|
ARTICLE
IX MISCELLANEOUS
|
78
|
Section
9.1 Amendments,
Etc
|
78
|
Section
9.2 Notices and Other
Communications; Facsimile Copies
|
79
|
Section
9.3 No Waiver;
Cumulative Remedies
|
81
|
Section
9.4 Attorney Costs,
Expenses and Taxes
|
81
|
Section
9.5 Indemnification by
the Borrowers
|
82
|
Section
9.6 Payments Set
Aside
|
83
|
Section
9.7 Successors and
Assigns
|
83
|
Section
9.8 Confidentiality
|
86
|
Section
9.9 Set-off
|
87
|
Section
9.10 Interest Rate
Limitation
|
87
|
Section
9.11 Counterparts
|
87
|
Section
9.12 Integration
|
87
|
Section
9.13 Survival of
Representations and Warranties
|
88
|
Section
9.14 Severability
|
88
|
Section
9.15 Tax
Forms
|
88
|
Section
9.16 Replacement of
Lenders
|
90
|
Section
9.17 Governing
Law
|
91
|
Section
9.18 No Advisory or
Fiduciary Responsibility
|
92
|
Section
9.19 PATRIOT Act
Notice
|
93
|
Section
9.20 Judgment
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93
|
Section
9.21 Waiver of Right to
Trial by Jury
|
93
|
iv
|
Schedules
|
Schedule
1.1 Mandatory
Cost
Schedule
2.1 Commitments
and Pro Rata Shares
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 Mendez & Alvarez LLP
Exhibit
I-2
Form of Opinion of Stikeman Elliot
Exhibit
I-3
|
Form
of Opinion of Freshfields Bruckhaus Deringer LLP as Netherlands Counsel to
TMFNL
|
Exhibit
I-4
|
Form
of Opinion of Freshfields Bruckhaus Deringer LLP as English Counsel to
TFSUK
|
Exhibit
I-5
|
Form
of Opinion of Freshfields Bruckhaus Deringer LLP as German Counsel to TKG
and TLG
|
v
364
DAY CREDIT AGREEMENT
THIS 364
DAY CREDIT AGREEMENT (this “Agreement”) dated as of March 3, 2010 is made among
TOYOTA MOTOR CREDIT CORPORATION, a California corporation (“TMCC”), TOYOTA MOTOR
FINANCE (NETHERLANDS) B.V., a corporation organized under the laws of the
Netherlands (“TMFNL”), TOYOTA
FINANCIAL SERVICES (UK) PLC, a corporation organized under the laws of England
(“TFSUK”),
TOYOTA LEASING GMBH , a corporation organized under the laws of Germany (“TLG”), 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
KREDITBANK GMBH, a corporation organized under the laws of Germany (“TKG” and, together
with TMCC, TMFNL, TFSUK, TLG, TCPR and TCCI, the “Borrowers”), each
lender from time to time party hereto (collectively, the “Lenders” and,
individually, a “Lender”), BNP
PARIBAS, as Administrative Agent, Swing Line Agent and Swing Line Lender, BNP
PARIBAS SECURITIES CORP. (“BNPP Securities”),
CITIGROUP GLOBAL MARKETS INC. (“CGMI”), BANC OF
AMERICA SECURITIES LLC (“BAS”) and THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD. (“BTMU”), as Joint Lead
Arrangers and Joint Book Managers, CITIBANK, N.A. and BANK OF AMERICA, N.A., as
Swing Line Lenders, and CITIBANK, N.A., BANK OF AMERICA, N.A. and THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as Syndication Agents.
WHEREAS,
the Borrowers have requested that the Lenders provide a revolving credit
facility that may be converted to a term facility, and the Lenders are willing
to do so on the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE
I
DEFINITIONS
Section 1.1
Definitions. The
following terms, as used herein, have the following meanings:
“Absolute Rate
Auction” means a solicitation of Money Market Quotes setting forth Money
Market Absolute Rates pursuant to Section
2.3.
“Administrative Agent”
means BNP Paribas, 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.
1
“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 BNP Paribas in its capacity as the Administrative
Agent and a Swing Line Agent, BNPP Securities as an Arranger, BNP Paribas
(Canada) in its capacity as Canadian Sub-Agent and a Swing Line Agent and BNP
Paribas London in its capacity as a 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 and
(iii) when used in relation to TCCI, the Aggregate Tranche B
Commitments.
“Aggregate Tranche A
Commitments” means the Tranche A Commitments of all the Tranche A
Lenders.
“Aggregate Tranche B
Commitments” means the Tranche B Commitments of all the Tranche B
Lenders; provided that in no
event shall the Aggregate Tranche B Commitments exceed
US$1,000,000,000.
“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.
“Applicable Maximum
Rate” means, as of any day, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth
below:
Public
Debt Rating
S&P/Moody’s
|
Applicable
Maximum
Rate Before Term Loan Extension Option
|
Applicable
Maximum
Rate After Term Loan Extension
Option
|
2
Level 1
At
least AA/Aa2
|
2.250%
|
2.250%
|
Level 2
Less
than Level 1 but at least A/A2
|
2.500%
|
2.500%
|
Level 3
Less
than Level 2
|
3.000%
|
3.500%
|
“Applicable
Percentage” means, as of any day, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth
below:
Public
Debt Rating
S&P/Moody’s
|
Applicable
Percentage
|
Level 1
At
least AA/Aa2
|
0.125%
|
Level 2
Less
than Level 1 but at least A/A2
|
0.150%
|
Level 3
Less
than Level 2
|
0.200%
|
“Applicable Rate”
means (i) for Eurocurrency Rate Loans, Swing Line Loans, Bankers’ Acceptances,
Drafts and BA Equivalent Notes, as of any day, a percentage per annum equal to
the Market Rate Spread on the Spread Determination Date in relation to such day,
less the Applicable Percentage in effect on such day and (ii) for Base Rate
Loans or Canadian Prime Rate Loans, a rate per annum that is 100 basis points
lower than the rate determined in accordance with clause (i) above; provided that in no
event shall the Applicable Rate for Base Rate Loans or Canadian Prime Rate Loans
be lower than 0.00%.
“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.
“Applicable Tranche
Lenders” means (i) with respect to the Tranche A Commitments or the
Tranche A Borrowers, the Tranche A Lenders and (ii) with respect to the Tranche
B Commitments or TCCI, the Tranche B Lenders.
“Arranger” means any
of BNPP Securities, CGMI, BAS or BTMU, 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.
3
“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, 2009 (or such later date for which audited
financial statements are delivered pursuant to this Agreement) and the income
statement, statement of changes in equity and cash flow statement for such
fiscal year, including the notes thereto, (ii) for TCCI and TCPR, the audited
balance sheet of such Borrower for the fiscal year ended March 31, 2009 (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, (iii)
for TMCC, the audited consolidated balance sheet of TMCC and its Subsidiaries
for the fiscal year ended March 31, 2009 (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, (iv) for TFSUK and its Subsidiaries, the audited consolidated balance
sheet of TFSUK and its Subsidiaries and the company balance sheet of TFSUK, in
each case, for the fiscal year ended March 31, 2009 (or such later date for
which audited financial statements are delivered pursuant to this Agreement),
the audited consolidated income statement, the audited consolidated and company
statement of recognized income and expense and the audited consolidated and
company cash flow statements for such financial year of TFSUK and its
Subsidiaries, including the notes thereto, and (v) for TKG and TLG, the audited
balance sheet of each such Borrower for the fiscal year ended March 31, 2009 (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
(presented in each case on a consolidated basis for TKG).
“BA Equivalent Note”
has the meaning specified in Section 2.15(i).
“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. (Montreal 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
4
(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 Maturity Date to the Term Maturity Date pursuant to Section
2.13(c).
“Bankers’ Acceptance”
has the meaning specified in Section 2.1(b).
“Base Rate” means, (a)
in respect of Tranche A, for any day, a fluctuating rate per annum equal to the
highest of (i) the Federal Funds Rate plus ½ of 1%, (ii) BBA LIBOR applicable to
US Dollars for an assumed Interest Period of one month commencing on such day
(or the most recent day, preceding such day, on which rates have been
quoted for such a period) plus ½ of 1% (for the avoidance of doubt, BBA LIBOR
for any day shall be based on the rate 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 on such day) and (iii) the rate of interest in effect for such day as
publicly announced from time to time by BNP Paribas in the United States as its
“prime rate.” The “prime rate” is a rate set by BNP Paribas based
upon various factors including BNP Paribas’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 B, for any day, the fluctuating rate per annum
equal to the highest of the rates determined in accordance with clause (a)(i),
clause (a)(ii), and the rate of interest in effect for such day as publicly
announced from time to time by BNP Paribas (Canada) in Montreal as its “prime
rate” for US Dollars. Any change in such rate announced by BNP
Paribas or BNP Paribas (Canada) shall take effect at the opening of business on
the day specified in the public announcement of such change.
“Base Rate Committed
Loan” means a Committed Loan that is a Base Rate Loan.
“Base Rate Loan” means a
Loan denominated in US Dollars that bears interest based on the Base
Rate. All Base Rate Loans shall be denominated in US
Dollars.
“BBA LIBOR” has the
meaning specified in the definition of “Eurocurrency Base Rate”.
“Benefit Arrangement”
means at any time an employee benefit plan within the meaning of Section 3(3) of
ERISA which is not a Plan or a Multiemployer Plan and which is maintained or
otherwise contributed to by any member of the ERISA Group.
“Borrower” means any
of TMCC, TMFNL, TFSUK, TLG, TCPR, TCCI or TKG, as applicable.
“Borrower Materials”
has the meaning specified in Section
6.1.
“Borrowers’
Representative” has the meaning specified in Section
9.2(e).
5
“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 Juan, 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 TARGET2 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 B 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 Toronto, Ontario or in Montreal, Quebec, Canada or
New York, New York.
“Canadian Dollars” and
“CDN$” each
means lawful money of Canada.
“Canadian ITA” means
the Income Tax Act
(Canada) as amended.
“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.
“Canadian Prime Rate Loan” means a
Tranche B Loan denominated in Canadian Dollars that bears interest based on the
Canadian Prime Rate.
“Canadian Reference
Banks” means BNP Paribas (Canada), Citibank, N.A., Canadian Branch and
Toronto Dominion Bank.
“Canadian Sub-Agent”
means BNP Paribas (Canada).
“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
6
address
or account with respect to such currency as the Canadian Sub-Agent may from time
to time notify to TCCI and the Tranche B 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 or its Tranche B 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 or a Committed Tranche B Loan.
“Committed Loan
Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of
Committed Loans from one Type to the other and (c) a continuation of
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 Maturity Date applicable to such
Borrower to the Term Maturity Date 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 notice of
election by TCCI to extend the Maturity Date applicable to TCCI to the Term
Maturity Date 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, or the purchase or acceptance of Bankers’
Acceptances or purchase of Drafts by, a Tranche B Lender pursuant to Section
2.1(b).
“Compliance
Certificate” means a certificate substantially in the form of Exhibit
C.
“Consenting Lenders”
has the meaning specified in Section
2.13(b).
7
“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.”
“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 Excess”
means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s ratable portion of the aggregate outstanding principal
amount of the Loans of all Lenders (calculated as if all Defaulting Lenders had
funded all of their respective Defaulted Loans) over the aggregate outstanding
principal amount of all Loans actually funded by such Defaulting
Lender.
“Default Period”
means, with respect to any Defaulting Lender, the period commencing on the date
of the applicable Defaulted Loan and ending on the earlier of the following
dates: (i) the date on which (a) the Default Excess with respect to such
Defaulting Lender has been reduced to zero (whether by the funding of any
Defaulted Loan by such Defaulting Lender or by the non-pro-rata application of
any prepayment pursuant to Section 2.17) and (b) such Defaulting Lender shall
have delivered to TMCC, the applicable Borrower and the Administrative Agent a
written reaffirmation of its intention to honor its obligations hereunder with
respect to its Commitments; and (ii) the date on which TMCC, the applicable
Borrower, the Administrative Agent and the Required Lenders waive in writing all
defaults relating to the failure of such Defaulting Lender to fund.
“Default Rate”, with
respect to any Loan, means an interest rate equal to the interest rate
(including the Applicable Rate and any Mandatory Cost) otherwise applicable to
such Loan plus 2% per annum, to the fullest extent permitted by applicable
Laws.
“Defaulted Loan” means
any Loan that a Defaulting Lender has failed to make.
“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
within three Business Days of the date required to be funded by it hereunder,
and such failure is continuing, (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 or (c) is or becomes
(or whose parent company is or becomes) the subject of a bankruptcy, insolvency,
receivership or conservatorship proceeding; provided, however, that a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any ownership interest in
8
such
Lender or parent company thereof or the exercise of control over a Lender or
parent company thereof by a governmental authority or instrumentality
thereof.
“Discount Rate” means,
in respect of any Bankers’ Acceptances or Drafts to be purchased by a Tranche B
Lender pursuant to Section 2.1(b): (i) for a Tranche B 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. (Montreal
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. (Montreal 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 B Lender and any other Lender or Person, the average rate
determined by the Canadian Sub-Agent pursuant to clause (a) plus
0.10%.
“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 bill within the meaning of the Depository Bills and Notes
Act, or a bill 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 B
Lenders, in accordance with Section 2.15(a), or (ii) the purchase of
completed Drafts by a Tranche B 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 B Lender at any time, the amount (adjusted to the
nearest whole 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
9
product
of (1) the Discount Rate applicable to such Tranche B 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(i).
“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,
“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
10
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 BNP Paribas London and with a term equivalent to
such Interest Period would be offered by BNP Paribas London (or other BNP
Paribas 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 B) must be Eurocurrency Rate Loans.
“Event of Default” has
the meaning set forth in Section
7.1.
“Exempt Lender” means
a Tranche A 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.
“Existing Credit
Facility” means the 364-Day Credit Agreement dated as of March 6, 2009
among TMFNL, TMCC, TFSUK, TKG, TCPR, TCCI and TLG, the lenders parties thereto,
Bank of America, N.A., as administrative agent, swing line agent and swing line
lender, Citibank, N.A. 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.
“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.
11
“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 BNP Paribas on such day on such transactions as
determined by the Administrative Agent.
“Fee Letters” means
the fee letters, if any, among TMCC, the Administrative Agent and any Arranger,
entered into in connection with this Agreement.
“Foreign Lender” has
the meaning set forth in Section 9.15(a)(i).
“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 of America set forth in the opinions and pronouncements of the
Statements and Interpretations of the Financial Accounting Standards Board, FASB
Staff Positions, Accounting Research Bulletins and Accounting Principles Board
Opinions of the American Institute of Certified Public Accountants or agencies
with similar functions of comparable stature and authority within the U.S.
accounting profession, which are applicable to the circumstances as of the date
of determination, including, commencing with the Borrower’s financial statements
for the quarter ending September 30, 2009 and thereafter, the FASB Accounting
Standards Codification and the Hierarchy of Generally Accepted Accounting
Principles, (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, (iii) in the case of TMFNL, International
Financial Reporting Standards (“IFRS”) and interpretations issued by the
International Financial Reporting Interpretations Committee (“IFRIC”), as
adopted by the European Union and the statutory provisions of Part 9, Book 2 of
The Netherlands Civil Code, (iv) in the case of TFSUK, IFRS and IFRIC
interpretations, as adopted by the European Union and those parts of the
Companies Act 1985 applicable to companies reporting under IFRS, and (v) 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.
“Indemnified
Liabilities” has the meaning set forth in Section
9.5.
12
“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 Maturity
Date; provided,
however, that
if any Interest Period for a Eurocurrency Rate Loan or Money Market Loan exceeds
three months, the respective dates that fall every three months after the
beginning of such Interest Period shall also be Interest Payment Dates; and (b)
as to any Base Rate Committed Loan, 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
(but not less than seven days) 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 Maturity Date to the
Term 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.
13
“IRS” means the United
States Internal Revenue Service.
“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 any other Person that
shall have become a party hereto pursuant to an assignment made in accordance
with Section 9.7, other than any Person that ceases to be a party hereto in
accordance with the terms hereof pursuant to such assignment, 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, including a
Loan converted to a Term Loan pursuant to Section
2.13(c).
“Loan Documents” means
this Agreement, each Note, and each Fee Letter.
“Mandatory Cost”
means, with respect to any period, the percentage rate per annum determined in
accordance with Schedule 1.1.
“Market Rate Spread”
means TMCC’s 1-year credit default swap spread based on the End of Day mid-rate
spread specified by Markit Group Ltd., determined on the Spread Determination
Date, subject to (i) at all times prior to the Term Extension Effective Date, a
minimum rate of 0.50% and a maximum rate equal to the Applicable Maximum Rate or
(ii) at all times from and after the Term Extension Effective Date, a minimum
rate of 1.00% and a maximum rate equal to the Applicable Maximum
Rate. If TMCC’s 1-year credit default swap spread, as specified by
Markit Group Ltd. is unavailable on the Spread Determination Date, then the
Market Rate Spread shall be TMCC’s 1-year credit default swap spread, as
reasonably determined on such Business Day by five reference banks selected by
the Administrative Agent and TMCC, including BNPP Securities, CGMI, BAS and
BTMU. If the participant banks are unable to determine TMCC’s 1-year
credit default swap spread on the Spread Determination Date, the Market Rate
Spread shall be the last 1-year credit default swap spread for TMCC reported by
Markit Group Ltd.
“Material Adverse
Effect” means with respect to any Borrower, a material adverse change in
the business, financial position or results of operations of such Borrower and
its Consolidated Subsidiaries, considered as a whole.
14
“Material Plan” means
at any time a Plan or Plans having aggregate Unfunded Liabilities in excess of
US$25,000,000.
“Maturity Date” means,
with respect to each Borrower, the Revolving Maturity Date applicable to such
Borrower, or if the Loans made to such Borrower are converted to Term Loans
pursuant to Section
2.13, the Term Maturity Date applicable to such Borrower.
“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).
“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
Moody’s Investors Service, Inc.
“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
15
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,
however (i) such taxes imposed as a result of an assignment or participation
(other than an assignment that occurs as a result of Borrower’s request pursuant
to Section 9.16) and (ii) such taxes, charges and levies payable in respect of
any Money Market Loan for any reason except a Regulatory Change occurring after
the date that the Money Market Quote for such Money Market Loan was
delivered.
“Outstanding Amount”
means (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
applicable 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 BNP Paribas 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.
16
“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 the commitments of each Applicable Tranche 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 or
Tranche B Commitment of such Applicable Tranche Lender at such time and the
denominator of which is the amount of the Aggregate Tranche A Commitments or
Aggregate Tranche B Commitments, respectively, at such time; provided that if the
commitment of each Lender to make Tranche A Loans or Tranche B Loans, as
applicable, has been terminated pursuant to Section 7.1 or if the
Loans have been converted to Term Loans pursuant to Section 2.13(c), then
the Pro Rata Share of each Applicable Tranche Lender shall be determined based
on the Pro Rata Share of such Lender immediately prior to such termination or
conversion 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 (b) 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 all the
Lenders’ Commitment Caps at such time.
“Public Debt Rating”
means, as of any date, the rating that has been most recently announced by any
of S&P or Moody’s, as the case may be, for any class of non-credit enhanced
long-term senior unsecured debt issued by TMCC or, if any such rating agency
shall have issued more than one such rating, the lowest such rating issued by
such rating agency. For purposes of the foregoing, (a) if only
one of S&P and Moody’s shall have in effect a Public Debt Rating, the
Applicable Maximum Rate and the Applicable Percentage shall be determined by
reference to the available rating; (b) if neither of S&P or Moody’s
shall have in effect a Public Debt Rating, the Applicable Maximum Rate and the
Applicable Percentage will be set in accordance with Level 3 under the
definitions of “Applicable Maximum
Rate” and “Applicable
Percentage”; (c) if both S&P and Moody’s have established
ratings and those ratings shall fall within two different levels, the Applicable
Maximum Rate and the Applicable Percentage shall be based
17
upon the
higher rating, unless the lower rating is more than one level below the higher
rating, in which case the Applicable Maximum Rate and the Applicable Percentage
shall be based upon the rating that is one level lower than the higher rating;
(d) if any rating established by S&P or Moody’s shall be changed, such
change shall be effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or
Moody’s shall change the basis or system on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Moody’s, as the case
may be, shall refer to the then equivalent rating by S&P or Moody’s, as the
case may be.
“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.
“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, 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 or
to TCCI, respectively, as of any date of determination, Applicable Tranche
Lenders having more than 50% of the Aggregate Commitments to such Borrower (or,
in the case of the Tranche A Borrowers, all of the Tranche A Borrowers) or, if
the commitment of each Lender to make Tranche A Loans or Tranche B Loans, as
applicable, has been terminated pursuant to Section 7.1 or if the
Loans have been converted to Term Loans pursuant to Section 2.13(c),
Applicable Tranche Lenders holding in the aggregate more than 50% of the Total
Outstandings applicable to Tranche A Borrowers or to TCCI, respectively (with
the aggregate amount of each Lender’s risk participation and funded
participation in Swing Line Loans 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 a
Borrower held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders and (b) in all other
cases, Lenders having more than 50% of the aggregate amount of all the Lenders’
Commitment Caps at such time or, to the extent the Commitments have been
terminated or the Loans have been converted to Term Loans, 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.
18
“Responsible Officer”
means the chief executive officer, president, chief financial officer, treasurer
or assistant treasurer or any other officer or representative of (i) the
applicable Borrower, authorized by the board of directors (or equivalent
governing body) of the applicable Borrower or (ii) to the extent a Borrower’s
Representative is permitted pursuant to this Agreement to act on behalf of a
Borrower, the applicable Borrowers’ Representative, authorized by the board of
directors (or equivalent governing body) of the applicable Borrowers’
Representative in respect of the applicable Borrower, in each case as set forth
in a written notice from such Borrower or such Borrowers’ Representative on
behalf of such Borrower to the Administrative Agent. The
Administrative Agent may conclusively rely on each such notice unless and until
a subsequent writing shall be delivered by a Borrower or Borrowers’
Representative on behalf of 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 or a Responsible Officer of a Borrowers’
Representative on behalf of a Borrower shall be conclusively presumed to have
been authorized by all necessary corporate action on the part of such Borrower
or such Borrowers’ Representative on behalf 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 2.2, and
(iii) such additional dates as the Administrative Agent shall determine or the
Required Lenders shall request.
“Revolving Extension
Effective Date” has the meaning specified in Section
2.13(b).
“Revolving Maturity
Date” means, with respect to any Borrower, the later of (a) March 2,
2011, 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 (as such term is defined in Section 2.13(b)) for
all purposes of this Agreement.
“S&P” means
Standard & Poor’s, a division of The McGraw-Hill Companies,
Inc.
“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.
19
“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 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.
“Spread Determination
Date” means the Business Day that is two Business Days prior to the day
of delivery of the request to make, convert or continue, as applicable, each
Loan (and if such Loan is a Eurocurrency Rate Loan with an Interest Period
longer than three months, the Market Rate Spread shall be reset to the Market
Rate Spread as reported on the Business Day that is two Business Days prior to
the day that is three months after the later of (i) the day on which such
Eurocurrency Rate Loan was made, converted or continued and (ii) the last day on
which the Market Rate Spread was reset).
“Sterling” and “£” mean the lawful
currency of the United Kingdom.
“Sub-Agents” means the
Canadian Sub-Agent and each 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 each of (a) in the case of Swing Line Loans funded in US Dollars, BNP
Paribas, (b) in the case of Swing Line Loans funded in Canadian Dollars, BNP
Paribas (Canada) and (c) in the case of Swing Line Loans funded in Euro,
Sterling or any other Alternative Currency, BNP Paribas London.
“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
20
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 applicable 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 such
Swing Line Agent (or its affiliate) and with a term equivalent to such Interest
Period would be offered by BNP Paribas London 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 sum of (i) the Canadian
Prime Rate and (ii) the Applicable Rate.
“Swing Line Sublimit”
means an amount equal to the least of (a) US$1,000,000,000, (b) the aggregate
Swing Line Commitments of the Swing Line Lenders and (c) the Aggregate
Commitments. The Swing Line Sublimit is part of, and not in addition
to, the Aggregate Commitments.
“TARGET2 Day” means
any day on which the Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET2) 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 (other than Other Taxes), 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 (including branch
profits taxes and backup withholding of such 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 or any
other jurisdiction arising solely as a result of such recipient engaging in a
trade or business in such jurisdiction for tax purposes and (ii) any (1) United
States, The Netherlands or Puerto Rico withholding tax imposed on payments by
the Tranche A Borrowers 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 B Lender that is subject to such
withholding tax, in the case of either (1)
21
or (2),
(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 (or designates a
new Lending Office) and (y) with respect to all other payments, on the date such
Lender becomes a party to this Agreement (or designates a new Lending
Office).
“Term Extension Effective
Date” has the meaning specified in Section 2.13(c).
“Term Loan Conversion
Fee” means, with respect to any Borrower, a fee in US Dollars to be paid
to the Administrative Agent on the Term Extension Effective Date by such
Borrower, for the account of the each Lender in accordance with its Pro Rata
Share, in an amount equal to 1.00% of the Outstanding Amount on the Term
Extension Effective Date of all Loans of such Lender made to such
Borrower.
“Term Loans” of a
Borrower means each Loan made to such Borrower that is outstanding on the date
that such Borrower elects to convert such Loans to term Loans in accordance with
Section
2.13(c).
“Term Maturity Date”
applicable to a Borrower means the date selected by such Borrower that is no
later than one year from the Revolving Maturity Date applicable to such Borrower
upon conversion of the Loans made to such Borrower to Term Loans in accordance
with Section
2.13(c).
“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 and (iii) when used in relation to TCCI, the Outstanding
Amount of all Loans made to TCCI.
“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 TMCC, TMFNL, TFSUK, TLG, TCPR 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 Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement; provided that (a) the
Tranche A Commitments available to TKG shall not exceed US$1,000,000,000 in the
aggregate for all Lenders, (b) the Tranche A Commitments available to TCPR shall
not exceed US$500,000,000 in the aggregate for all
22
Lenders
and (c) the Tranche A Commitments available to TLG shall not exceed
US$500,000,000 in the aggregate for all Lenders.
“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, including a Loan converted to a
term Loan pursuant to Section
2.13(c). 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 TCCI, (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 TCCI
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 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, including a Loan converted to a term Loan pursuant to Section
2.13(c). Tranche B 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).
“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 CTA” means the
United Kingdom Corporation Tax Act 2009.
“UK ITA” means the
United Kingdom Income Tax Act 2007.
23
“UK Qualifying Lender”
means a Lender which is (a) 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 879 UK ITA) 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 879
UK ITA) at the time the advance was made, and which, with respect to (1) and (2)
above, 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 or
(2) a company not so resident in the United Kingdom which carries on a trade in
the United Kingdom through a permanent establishment which brings into account
interest payable in respect of that Loan in computing its chargeable profits
(within the meaning given by section 19 of the UK CTA); 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 or to
be 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.
24
“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 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
TCCI.
“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 that is
fiscally transparent under the laws of the United States and where each ultimate
recipient of the interest payable to that Lender would be a UK Treaty 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.
(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.”
25
(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 “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 Applicable Tranche Lenders.
(b) Any
such request shall be made to the Administrative Agent not later than 11:00
a.m., 10 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
26
request
pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly
notify each Applicable Tranche Lender thereof. Each such 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., seven 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 an Applicable Tranche 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 for the applicable tranche. If the Administrative Agent and
all the Applicable Tranche Lenders consent to making Eurocurrency Rate Loans in
such requested currency under the applicable tranche, 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 under such
tranche. 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.
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).
27
ARTICLE
II
THE
CREDITS
Section
2.1 Committed
Loans. (a) Subject to the terms and conditions set
forth herein, each Tranche A Lender severally agrees to make loans 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, unless converted to a Term Loan pursuant to Section 2.13(c),
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 to TCCI in US Dollars or in one or more Alternative
Currencies, and (i) in the case of a Tranche B 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
B Lender which is unwilling or unable to accept Drafts, to purchase completed
Drafts, which will not be accepted by the Tranche B Lender or any other Tranche
B Lender in accordance with Section 2.15 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 TCCI 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 Swing Line Loans made to TCCI
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, TCCI may borrow under this Section 2.1(b),
prepay under Section
2.4, and, unless converted to a Term Loan pursuant to Section 2.13(c),
reborrow under this Section
2.1(b). Committed Tranche B Loans may be Base Rate Loans,
Eurocurrency Rate Loans, Canadian Prime Rate Loans, Bankers’ Acceptances or BA
Equivalent Notes, as further provided herein.
(c) 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.
Section 2.2 Borrowings, Conversions and
Continuations of Committed Loans.
(a) Each
Committed Borrowing, each conversion of Committed Loans from one Type to the
other, and each continuation of 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 B), 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) in the case of Tranche A Loans and 9:00 a.m. (Pacific time) in
the case of Tranche
28
B Loans,
(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 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 B 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 EUR 50,000 or
(y) for Tranche B 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.
29
Notwithstanding
the foregoing, if after giving effect to the making of any Tranche A Loans or
Tranche B Loans the Unused Tranche A Commitment would be less than or equal to
the Dollar Equivalent of EUR 300,000,000 (as determined by the Administrative
Agent), then, only to the extent TKG has not borrowed EUR 300,000,000 as of the
date such Loan is to be made, such Loans shall not be made without the consent
of TKG (which consent may be waived only by TKG).
(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
Tranche A Lender shall make the amount of its Committed Loan available to the
Administrative Agent, and each Tranche B Lender shall make the amount of its
Committed Loan available to the Canadian Sub-Agent, in Same Day Funds at the
Administrative Agent’s Office for the applicable currency or the office of the
Canadian Sub-Agent located in Montreal, 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 BNP Paribas 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 BNP Paribas’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 B Lenders
of any change in the Canadian Prime Rate promptly following the
public
30
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 may, as set forth in this Section, request the appropriate
Lenders during the Tranche A Availability Period to make offers to make Money
Market Loans in US Dollars to such Borrower; provided, however, that (i)
after giving effect to any Money Market Borrowing the Total Outstandings
applicable to the Tranche A Borrowers shall not exceed the Aggregate Tranche A
Commitments and (ii) if after giving effect to any Money Market Borrowing the
Unused Tranche A Commitment would be less than or equal to the Dollar Equivalent
of EUR 300,000,000 (as determined by the Administrative Agent), then, only to
the extent TKG has not borrowed EUR 300,000,000 as of the date such Loan is to
be made, such Money Market Loan shall not be made without the consent of TKG
(which consent may be waived only by TKG). 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 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
the 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.
31
(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 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 Money Market Quote must comply
with the requirements of this subsection (d) and must be submitted to the
Administrative Agent by facsimile transmission at the Administrative Agent’s
Office not later than (x) 1:00 p.m. on the fourth Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:00 a.m. on
the proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as such Tranche A Borrower, and the
Administrative Agent shall have mutually agreed and shall have notified to the
Lenders not later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be
effective); provided that Money Market Quotes submitted by the Administrative
Agent (or any Affiliate of the Administrative Agent) in the capacity of a Lender
may be submitted, and may only be submitted, if the Administrative Agent or such
Affiliate notifies such Borrower of the terms of the offer or offers contained
therein not later than 15 minutes prior to the deadline for the other
Lenders. Subject to Articles IV and VII, any Money Market
Quote so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of such Tranche A
Borrower.
(ii) Each
Money Market Quote shall specify (A) the proposed date of Borrowing; (B) the
principal amount of the Money Market Loan for which each such offer is being
made, which principal amount (w) may be greater than or less than the Commitment
of the quoting Lender, (x) must be US$5,000,000 or a larger multiple of
US$l,000,000, (y) may not exceed the principal amount of Money Market Loans for
which offers were requested and (z) may be subject to an aggregate limitation as
to the principal amount of Money Market Loans for which offers being made by
such quoting Lender may be accepted; (C) in the case of a LIBOR Auction, the
margin above or below the applicable 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;
32
(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 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 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 10:00 a.m. on the third Business Day prior to the proposed date of
Borrowing of Money Market LIBOR Loans or 9:00 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 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 the 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.
33
(a) The
Tranche A Borrowers 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 (x) in the case of Tranche A Loans,
10:00 a.m. (Pacific time), (A) two Business Days prior to any date of prepayment
of Eurocurrency Rate Loans denominated in US Dollars, (B) three Business Days
(or four, 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 Committed Loans or Money Market Loans bearing interest at the Base
Rate pursuant to Section 3.2 or (y) in
the case of Tranche B Loans, 9:00 a.m. (Pacific time) (A) two Business Days
prior to the date of any date of prepayment of Eurocurrency Rate Loans and (B)
on the date of prepayment of Canadian Prime Rate Loans; (ii) any prepayment of
Loans other than Tranche B 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 of Tranche B 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, then 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 TKG
at any time exceed US$1,000,000,000, TKG shall immediately prepay Loans in an
aggregate amount equal to such excess, (iii) if for any reason the Total
Outstandings applicable to TCPR at any time exceed US$500,000,000, TCPR shall
immediately prepay Loans in an aggregate amount equal to such excess, (iv) if
for any reason the Total Outstandings applicable to TLG at any time exceed
US$500,000,000, TLG shall immediately prepay Loans in an aggregate amount equal
to such excess and (v) if for any reason the Total Outstandings applicable to
TCCI at any time exceed
34
the
Aggregate Tranche B 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 an aggregate amount
sufficient to eliminate such excess.
(c) Any
Borrower may, upon notice to the applicable 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 applicable 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, 10:00 a.m. (Pacific time) in
the case of any Swing Line Loans funded in the United States or 9:00 a.m.
(Pacific time) in the case of any Swing Line Loans funded in Canada 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.
(d) If
the Administrative Agent notifies the Borrowers that the aggregate of a Lender’s
Tranche A Loans and Tranche B 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, the Borrowers shall prepay Loans in an aggregate amount sufficient to
reduce the aggregate of such Lender’s Tranche A Loans and Tranche B 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.
Section 2.5 Termination or Reduction of
Commitments. (a) The Tranche A Borrowers may, upon notice to
the Administrative Agent, terminate or from time to time permanently reduce the
Aggregate Tranche A Commitments; TCCI may, upon notice to the Canadian Sub-Agent
and the Administrative Agent, terminate the Aggregate Tranche B Commitments, or
from time to time permanently reduce the Aggregate Tranche B Commitments; provided that (i) any
such notice shall be received by the Administrative Agent or the Canadian
Sub-Agent, as applicable, not later than 10:00 a.m. (Pacific time), on the
Business Day immediately 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.
35
(b) Non-Ratable
Reduction. The Tranche A Borrowers or TCCI shall have the
right, at any time, upon at least three Business Days’ notice to a Defaulting
Lender (with a copy to the Administrative Agent), to terminate in whole such
Defaulting Lender’s Tranche A Commitments or Tranche B Commitments,
respectively. Such termination shall be effective, (x) with respect
to such Defaulting Lender’s unused Tranche A Commitments or Tranche B
Commitments, as applicable, on the date set forth in such notice, provided, however, that such
date shall be no earlier than three Business Days after receipt of such notice
and (y) with respect to each Tranche A Loan or Tranche B Loan outstanding to
such Defaulting Lender, if such Loan is a Base Rate Loan or Canadian Prime Rate
Loan, on the date set forth in such notice and, if such Loan is a Eurocurrency
Rate Loan, a Money Market LIBOR Loan or a Money Market Absolute Rate Loan, on
the last day of the then current Interest Period relating to such
Loan. Upon termination of a Lender’s Commitment under this Section
2.5(b), the Tranche A Borrowers or TCCI, as applicable, will pay or cause to be
paid all principal of, and interest accrued to the date of such payment on,
Tranche A Loans or Tranche B Loans, as applicable, owing to such Defaulting
Lender and pay any accrued facility fee payable to such Defaulting Lender
pursuant to the provisions of Section 2.8(a), and all other amounts payable to
such Defaulting Lender hereunder (including, but not limited to, any increased
costs or other amounts owing under Section 3.4 and any indemnification for Taxes
under Section 3.1); and upon such payments, the obligations of such Defaulting
Lender hereunder shall, by the provisions hereof, be released and discharged;
provided, however, that
(i) such Defaulting Lender’s rights under Sections 3.1, 3.4 and 9.4, and its
obligations under Section 8.7 shall survive such release and discharge as to
matters occurring prior to such date; and (ii) no claim that the Tranche A
Borrowers or TCCI may have against such Defaulting Lender arising out of such
Defaulting Lender’s default hereunder shall be released or impaired in any
way. Subject to Section 2.14, the aggregate amount of the Commitments
of the Lenders once reduced pursuant to this Section 2.5(b) may not be
reinstated; provided further,
however, that if pursuant to this Section 2.5(b), the Tranche A Borrowers
or TCCI, as applicable, pay or cause to be paid to a Defaulting Lender any
principal of, or interest accrued on, the Tranche A Loans or Tranche B Loans
owing to such Defaulting Lender, then the Tranche A Borrowers or TCCI, as
applicable, shall pay or cause to be paid a ratable payment of principal and
interest to all Tranche A Lenders or Tranche B Lenders, as applicable, who are
not Defaulting Lenders.
Section 2.6 Repayment of
Loans.
(a) Each
Borrower shall repay to the Administrative Agent for the account of the Lenders
on the 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.
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(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 (as determined on the applicable Spread Determination Date) 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 (as determined on the applicable Spread Determination Date);
(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 (as determined on the applicable Spread Determination Date); (iv) each
Swing Line Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum 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 to the Administrative Agent for the account of each Applicable
Tranche Lender in accordance with its Pro Rata Share, a facility fee in US
Dollars equal to the Applicable Percentage times the actual
daily amount of the Aggregate Commitments of such Applicable Tranche Lenders,
regardless of usage (or, if the Aggregate Commitments of such Applicable Tranche
Lenders have terminated, on the Outstanding Amount of all Loans and Swing Line
Loans of such Applicable Tranche Lender made to the applicable Borrower(s)),
which fee shall
37
accrue at
all times during the Tranche A Availability Period or the Tranche B Availability
Period, as applicable (and thereafter so long as any Loans or Swing Line Loans
of such Applicable Tranche Lenders made to any Applicable Borrower remain
outstanding, other than Loans converted to Term Loans pursuant to Section
2.13(c)), including at any time during which one or more of the conditions in
Article IV is
not met, but shall terminate upon termination of the applicable availability
period or upon conversion of the applicable Loans to Term Loans pursuant to
Section 2.13(c); provided that no such
fee shall be paid on the unused Tranche A Commitments or unused Tranche B
Commitments of any Applicable Tranche Lender that is a Defaulting
Lender. 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 Letters, if
any. Any 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 BNP Paribas’s United States “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.
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
38
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 B 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 B 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 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 B Facility, be made in the United States and
(y) any payments to be made by TCCI in respect of the Tranche B 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 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
39
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 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
40
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 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 (other than any Defaulting
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
41
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;
Conversion to Term Loans.
(a) Not
earlier than 60 days prior to, nor later than 45 days prior to, the Revolving
Maturity Date applicable to a Borrower then in effect, such Borrower may, upon
notice to the Administrative Agent (which shall promptly notify the appropriate
Lenders), request an extension of the Revolving Maturity Date applicable to such
Borrower then in effect for a period of up to 364 days. Within 30
days of delivery of such notice, each appropriate Lender shall 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. The
Administrative Agent shall notify the applicable Borrower and the appropriate
Lenders of the Lenders’ responses not less than 15 days prior to the Revolving
Maturity Date. If any Lender declines, or is deemed to have declined,
to consent to such extension, the applicable Borrower may, at its own expense,
cause any such Lender to be replaced as a Lender pursuant to Section
9.16. The applicable Borrower shall be deemed to have
withdrawn any request to extend the Revolving Maturity Date applicable to such
Borrower if it delivers or is required to deliver a notice of election to
convert the Loans to Term Loans pursuant to Section
2.13(c).
42
applicable
to such Borrower then in effect, effective as of the Revolving Maturity Date
applicable to such Borrower then in effect (such existing Revolving Maturity
Date being the “Revolving Extension
Effective Date”). The Administrative Agent and the applicable
Borrower shall promptly confirm to the Lenders such extension and the Revolving
Extension Effective Date. As a condition precedent to such extension,
the applicable 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 such
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. The applicable
Borrower shall prepay any Committed Loans outstanding on the Revolving Extension
Effective Date (and pay any additional amounts required pursuant to Section 3.5) to the
extent necessary to keep outstanding Committed Loans ratable with any revised
and new Pro Rata Shares of all the Lenders.
(c) Term Loan
Conversion. Not later than seven Business Days prior to the
Revolving Maturity Date applicable to a Borrower, such Borrower may, upon notice
to the Administrative Agent (which shall promptly notify the appropriate
Lenders), elect to convert any Loans made to such Borrower that shall have been
borrowed in accordance with Section 2.2(a) hereof and remain outstanding as of
the date of conversion into term Loans payable on the date (the “Term Maturity Date”)
selected by the Borrower, but in no event later than one year from the Revolving
Maturity Date applicable to such Borrower. Concurrently with
delivering any Request for Loans relating to Eurocurrency Rate Loans with an
Interest Period ending after the Revolving Maturity Date applicable to such
Borrower such Borrower shall deliver a notice to the Administrative Agent that
it elects to convert the Loans into term Loans in accordance with the preceding
sentence. If a Borrower so elects to convert the Loans made to it to
term Loans, subject to the satisfaction of the conditions precedent contained in
this Section
2.13(c), the Maturity Date applicable to such Borrower shall
automatically be extended to the Term Maturity Date effective as of the
Revolving Maturity Date applicable to such Borrower then in effect (such
existing Revolving Maturity Date being the “Term Extension Effective
Date”), and, on and after the Term Extension Effective Date, the Loans
made to such Borrower shall be term Loans that (i) may not be reborrowed once
repaid, (ii) in the case of loans denominated in US Dollars, may be converted
from Base Rate Loans to Eurocurrency Rate Loans and from Eurocurrency Rate Loans
to Base Rate Loans and, in the case of Loans denominated in Canadian Dollars,
may be continued as Canadian Prime Rate Loans, Bankers’ Acceptances, Drafts or
BA Equivalent Notes as provided therein, (iii) bear interest on the outstanding
principal amount thereof in accordance with Section 2.7 and (iv)
are payable in full on the Term Maturity Date applicable to such
Borrower. The Administrative Agent and the applicable Borrower shall
promptly confirm to the appropriate Lenders such extension and the Term
Extension Effective Date. As conditions precedent to such extension,
(A) the Applicable Borrower shall pay to the Administrative Agent the Term Loan
Conversion Fee, (B) the applicable Borrower shall deliver to the Administrative
Agent a certificate of such Borrower dated as of the Term Extension Effective
Date (in sufficient
43
copies
for each appropriate Lender) signed by a Responsible Officer of such Borrower
certifying that no Default applicable to such Borrower exists, and (C) as of the
Term Extension Effective Date, any outstanding Money Market Loans made to such
Borrower shall have been prepaid, to the extent permitted by Section 2.4(a), or
repaid in accordance with this Agreement, and if such prepayment or repayment is
to be made in whole or in part from Committed Loans, such Committed Loans shall
have been made at least one Business Day prior to the Term Extension Effective
Date.
(d) Any
election by a Tranche A Borrower made pursuant to Section 2.13(b) in
relation to the Tranche A Loans made to such Tranche A Borrower shall be
immediately binding on all other Tranche A Borrowers, without further action or
notice by the Administrative Agent.
(e) 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 any Tranche A Borrower, upon notice by
TMCC to the Administrative Agent (which shall promptly notify the appropriate
Lenders), TMCC may from time to time, request an increase in the Aggregate
Commitments applicable to all Tranche A Borrowers to an amount (for all such
requests) not exceeding US$6,500,000,000. At the time of sending such
notice, TMCC (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 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, TMCC 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$10,000,000. The consent of the Lenders is not required to increase
the amount of the Aggregate Tranche A 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 Tranche A Commitments by the amount requested
by TMCC pursuant to this Section 2.14(a), TMCC
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 TMCC shall determine the effective date
(the “Increase
Effective Date”) and the final allocation of such
increase. The Administrative Agent shall promptly notify TMCC and the
appropriate Lenders of the final allocation of such increase and the Increase
Effective Date. As a condition precedent to such increase, each
Tranche A
44
Borrower
shall deliver to the Administrative Agent a certificate of such Tranche A
Borrower dated as of the Increase Effective Date (in sufficient copies for each
appropriate Lender) signed by a Responsible Officer of such Tranche A Borrower
certifying that no Default applicable to such Tranche A Borrower
exists. The Tranche A Borrowers 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.
(a) Request for
Drawing. Each Drawing shall be made on notice, given not later
than 11:00 A.M. (Montreal 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 B 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 B Lenders in accordance with Section 2.1(b), 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 B Lender shall, before 1:00 P.M. (Montreal
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. (Montreal
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 B Lender for such
Drafts less the Drawing Fee payable to such
Tranche B 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 B Lenders
available to TCCI by wire transfer in accordance with instructions provided to
(and reasonably acceptable to) the Canadian Sub-Agent by the Canadian
Borrower.
45
(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 B Lenders accepting Drafts and purchasing Bankers’ Acceptances or
purchasing Drafts which have not been accepted by any Tranche B Lender, the
Drawing Fee with respect to such Drafts. TCCI irrevocably authorizes
each such Tranche B Lender to deduct the Drawing Fee payable with respect to
each Draft of such Tranche B Lender from the Drawing Purchase Price payable by
such Tranche B 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.
(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
B 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 B Lender (absent any gross negligence
by the Tranche B Lender) against any loss, cost or expense incurred by such
Tranche B 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 B Lender to fund the Drawing
Purchase Price to be paid by such Tranche B 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 B 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 B
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 B Lender that the condition
causing such determination no longer exists.
(f) Presigned Draft
Forms. To enable the Tranche B Lenders to create Bankers’
Acceptances or purchase Drafts, as the case may be, in accordance with
Section 2.1(b) and this Section 2.15, TCCI hereby appoints each
Tranche B 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 B Lender, blank forms of Drafts. In this respect, it
is each Tranche B 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 B Lender shall bind TCCI as fully and effectually as if signed in
the
46
handwriting
of and duly issued by the proper signing officers of TCCI. Each
Tranche B 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 B
Lender; provided that the
aggregate amount thereof is equal to the aggregate amount of Drafts required to
be purchased by such Tranche B Lender. On request by TCCI, a Tranche
B 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 B
Lender and have not yet been issued in accordance herewith. Each
Tranche B 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 B Lender. Each
Tranche B Lender 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
B 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 B Lender in accordance with the terms of Section 2.1(b) and this
Section 2.15 may, in such Tranche B Lender’s sole discretion, be held by
such Tranche B 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 B Lender to fund the
Drawing Purchase Price to be funded by it as part of any Drawing shall not
relieve any other Tranche B Lender of its obligation hereunder to fund its
Drawing Purchase Price on the date of such Drawing, but no Tranche B Lender
shall be responsible for the failure of any other Tranche B Lender to fund the
Drawing Purchase Price to be funded or made, as the case may be by such other
Tranche B Lender on the date of any Drawing.
(i) Issue of BA Equivalent
Notes. TCCI shall, at the request of a Tranche B 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 B Lender may specify, in a principal amount equal to
the Face Amount of, and in exchange for, any unaccepted Drafts which such
Tranche B Lender has purchased or has arranged to have purchased in accordance
with Section 2.1(b). TCCI and each Tranche B Lender hereby
acknowledge and agree that from time to time certain Tranche B Lenders
may elect not to receive any BA Equivalent Note, and TCCI
and each applicable Tranche B Lender agrees that with respect to any such
Tranche B Lender, in lieu of receiving BA Equivalent Notes, the applicable
Tranche B Loan may be evidenced by a loan account which such Tranche B
Lender shall maintain in its name, and in such event such loan account shall be
entitled to all the benefits of BA Equivalent Notes.
47
(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. (Montreal
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 B 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. During the existence of an Event of Default with
respect to TCCI, no Drawing may be requested, nor may any Bankers' Acceptance,
Draft or BA Equivalent Note be renewed or continued by TCCI, without the consent
of the applicable Required Lenders, and the Required Lenders may demand that any
or all of the then outstanding Bankers' Acceptances, Drafts and BA Equivalent
Notes be prepaid by TCCI on the last day of the then current BA Maturity Date
with respect thereto.
(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 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 B 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 7.1, 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.
(n) Cash
Collateralization. Subject to Section 2.15(l), (i) an
amount equal to the aggregate Face Amount of all Bankers’ Acceptances, Drafts
and BA Equivalent Notes which are subject to any voluntary or mandatory
prepayment by TCCI shall be deposited by TCCI with the Canadian Sub-Agent, in
Canadian Dollars, until the BA Maturity Date of each such Bankers’ Acceptance,
Drafts and BA Equivalent Note and (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 Canadian Sub-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 BA Equivalent Note.
48
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 or TCCI, 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 or Tranche B
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), (iii) the aggregate Outstanding Amount of Committed Loans of
any Lender under the Tranche A Facility and Tranche B 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 (iv) if after giving effect to any
Swing Line Loan the Unused Tranche A Commitment would be less than or equal to
the Dollar Equivalent of EUR 300,000,000 (as determined by the Administrative
Agent), then, only to the extent TKG has not borrowed EUR 300,000,000 as of the
date such Loan is to be made, such Swing Line Loan shall not be made without the
consent of TKG (which consent may be waived only by TKG) 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.
(b) Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the
applicable Borrower’s irrevocable notice to the applicable 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 a Swing Line Agent, may not be
given by telephone, but may be given by electronic delivery, confirmed promptly
by delivery to the applicable 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 applicable 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, 10:00 a.m. (Pacific time) in the case of any Swing
Line Loans to be funded in the United States or 9:00 a.m.
49
(Pacific
time) in the case of any Swing Line Loans to be funded in Canada 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 the 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 applicable 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 applicable Swing Line Agent of any telephonic Swing Line Loan
Notice, such 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, such 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 applicable 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, Pacific time, in the case of any
Swing Line Loan to be funded in the United States or Montreal time, in the case
of any Swing Line Loan to be funded in Canada) 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 applicable Swing Line Agent in Same Day Funds or as
otherwise directed by such Borrower.
(c) Refinancing of Swing Line
Loans.
(i) The
Swing Line Lenders at any time in their respective sole and absolute discretion
may direct the applicable Swing Line Agent to request, on behalf of the
applicable Borrower (and each Borrower hereby irrevocably authorizes each 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 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 applicable 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
50
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 applicable Swing Line
Agent as set forth herein shall be deemed to be a request by such 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 Lenders 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.
(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
51
shall
relieve or otherwise impair the obligation of any Borrower to repay Swing Line
Loans made to it, together with interest as provided herein.
(d) Repayment of
Participations.
(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 applicable 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
applicable Swing Line Agent, for the account of the respective Swing Line
Lenders.
Section
2.17 Defaulting
Lenders. Anything contained herein to the contrary
notwithstanding, (a) to the extent permitted by applicable law, until such
time as the Default Excess with respect to such Defaulting Lender shall have
been reduced to zero, any prepayment of the Loans shall, if the Tranche A
Borrowers or TCCI, as applicable, so direct at the time of making such
prepayment, be applied to the Loans of other Applicable Tranche Lenders as if
such Defaulting Lender had no Tranche A Loans or Tranche B Loans, as applicable,
outstanding; (b) such Defaulting Lender’s unused Aggregate Commitments
shall be excluded for purposes of calculating the facility fee payable to
Lenders pursuant to Section 2.8(a) in respect of any day during any Default
Period with respect to such Defaulting Lender, and such Defaulting Lender shall
not be entitled to receive any facility fee with respect to its unused
Commitment(s) pursuant to Section 2.8(a) for any Default Period with respect to
such Defaulting Lender; and (c) the aggregate amount of the Tranche A Loans
and Tranche B Loans as at any date of determination shall be calculated as if
such Defaulting Lender had funded all Defaulted Loans of such Defaulting
Lender. No Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this Section 2.17,
performance by any Borrower or any
52
Lender of
its obligations hereunder shall not be excused or otherwise modified as a result
of any failure by a Defaulting Lender to fund or the operation of this Section
2.17. The rights and remedies against a Defaulting Lender under this
Section 2.17 are in addition to other rights and remedies that the Borrowers,
the Administrative Agent or any other Lender may have against such Defaulting
Lender with respect to any Defaulted Loan.
ARTICLE
III
TAXES,
YIELD PROTECTION AND ILLEGALITY
Section 3.1 Taxes.
(a) Subject
to the other provisions of this Section 3.1 and Section 9.15, 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 3.1(a)), 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 or other evidence of
such payment.
(b) In
addition, each Borrower agrees to pay to each appropriate Lender Other Taxes
incurred by such Lender.
(c) 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 3.1(c)) paid by the Administrative Agent and such Lender and (ii)
any liability (including additions to tax, penalties, interest and expenses)
arising therefrom or with respect thereto. Payment under this Section
3.1(c) shall be made within 15 days after the date the Lender or the
Administrative Agent makes a demand therefor.
(d) In
the case of interest payments made by TKG or TLG, this Section 3.1 shall
only apply to a Lender who is the legal and beneficial owner of amounts received
pursuant to this Agreement and has provided evidence to TKG or TLG: (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, (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
53
Germany
or (iii) that such Lender qualifies as a credit institution or financial
institution within the meaning of the German Banking Act
(Kreditwesengesetz).
(e) 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 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.
(f) If
the Administrative Agent or a Lender shall become aware that it is entitled to
claim a refund from a Governmental Authority in respect of, or remission for,
Taxes or Other Taxes as to which it has received additional amounts under this
Section 3.1, such Administrative Agent or Lender shall promptly notify the
applicable Borrower and Agent (as applicable) of the availability of such claim
and, to the extent that the Lender or the Administrative Agent (as applicable)
determines in good faith that making such claim will not have an adverse effect
on its taxes or business operation, shall, within 60 days of receipt of a
request by such Borrower, make such claim. If the Administrative
Agent or Lender (acting in good faith) determines, in its sole discretion, that
it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by such Borrower or with respect to which such Borrower has paid
amounts pursuant to this Section 3.1, it shall
pay over the amount of such refund to such Borrower, net of all out-of-pocket
expenses of the Administrative Agent or such Lender (but amounts hereby
recovered by the Borrower shall not exceed the indemnity payments made, or the
amounts paid, as applicable, by such Borrower under this Section 3.1) and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund or credit); provided, however, that such
Borrower, upon the request of the Administrative Agent or such Lender, agrees to
repay the amount paid over to the Administrative Agent or such Lender in the
event the Administrative Agent or such Lender is required to repay such refund
to such Governmental Authority. This Section 3.1(f) shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its Taxes which it deems
confidential) to any Borrower or any other Person.
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
54
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 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 B 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 B 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 BA Equivalent Note
or (iii) the obligation of the Tranche B Lenders to complete and accept
Drafts and purchase Bankers’ Acceptances and to purchase Drafts that have not
been accepted by a Tranche B Lender shall be suspended until the Administrative
Agent shall notify TCCI that such Tranche B 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).
55
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.
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) 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
56
to Section 3.4(c),the
applicable Borrower shall pay within 15 days of demand by such Lender such
additional amounts as will compensate such Lender for such
reduction.
(c) Promptly
after receipt of knowledge of any Regulatory Change or other event that will
entitle any Lender to compensation under this Section 3.4, such
Lender shall give notice thereof to the applicable Borrower and the
Administrative Agent certifying the basis for such request for compensation in
accordance with Section 3.6(a) and
designate a different Lending Office if such designation will avoid, or reduce
the amount of, compensation payable under this Section 3.4 and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. Notwithstanding anything in Sections 3.4(a) or
3.4(b) to the
contrary, no Borrower shall be obligated to compensate any Lender for any amount
arising or accruing before the earlier of (i) 180 days prior to the date on
which such Lender gives notice to such Borrower and the Administrative Agent
under this Section
3.4(c) or (ii) the date such amount arose or began accruing (and such
Lender did not know such amount was arising or accruing) as a result of the
retroactive application of Regulatory Change or other event giving rise to the
claim for compensation.
(d) Notwithstanding
anything to the contrary contained in this Agreement, (i) this Section 3.4 shall
not apply to taxes, and (ii) all indemnification (including with respect to
increased costs and reduction in amounts received) relating to or attributable
to taxes shall be governed solely and exclusively by Section 3.1.
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
57
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 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.
58
ARTICLE
IV
CONDITIONS
Section 4.1 Effectiveness. This
Agreement shall become effective, and the commitments under the Existing Credit
Facility shall be automatically terminated, 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 and each Borrower;
(ii) a
Note executed by each Borrower in favor of each Lender requesting a
Note;
(iii) such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Borrower as the
Administrative Agent may require evidencing the identity, authority and capacity
of each Responsible Officer thereof authorized to act as a Responsible Officer
in connection with this Agreement and the other Loan Documents;
(iv) such
documents and certifications as the Administrative Agent may reasonably require
to evidence that each Borrower is duly organized or formed, and that such
Borrower is validly existing, in good standing and qualified to engage in
business, in its jurisdiction of organization;
(v) a
favorable opinion of Reed Smith 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 Pietrantoni Méndez & Alvarez LLP, counsel to TCPR,
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 Deringer LLP, 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;
59
(ix) 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 arecorrect on and as of the Closing Date;
and
(B) no event has occurred and is
continuing that constitutes a Default; and
(x) 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 pursuant to the Fee Letters on or before the Closing
Date shall have been paid.
(c) [Reserved].
(d) The
Borrowers shall have paid in full all indebtedness, interest, fees and other
amounts outstanding under the Existing Credit Facility and the Existing Credit
Facility shall have been terminated. Each of the Lenders that is a
party to the Existing Credit Facility hereby waives, upon execution of this
Agreement, any applicable 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 in all material respects 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, (B) 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) and (C) the representations and warranties
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(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 appropriate 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 Borrower
that the conditions specified in Sections 4.2(a) and
(b) have been
satisfied on and as of the date of the applicable Loans.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
Each
Borrower represents and warrants to the Administrative Agent and the Lenders, as
to itself only and not as to any other Borrower, that:
Section 5.1
Corporate Existence and
Power. Such Borrower is duly organized, validly existing and
in good standing under the Laws of its jurisdiction of organization, and has all
organizational 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 have a Material
Adverse Effect with respect to such Borrower 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 organizational powers, have been duly authorized by all
necessary organizational action, require no action by or in respect of, or
filing with, any Governmental Authority except such as have been obtained 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 have a Material Adverse Effect with
respect to such Borrower.
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
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Borrower,
in each case enforceable in accordance with its terms, except as may be limited
bybankruptcy, 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 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) Except
as publicly disclosed, 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 have a Material
Adverse Effect with respect to such Borrower, 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 Canadian ITA, as applicable,
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 tax, assessment, fee or other governmental charge
that is being contested in good faith by appropriate proceedings
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diligently
conducted and for which adequate reserves have been provided in accordance
withGAAP. 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 such Borrower is a Person duly organized, validly
existing and in good standing under the Laws of its jurisdiction of
organization, and has all organizational powers and all 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 of preparation (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, TLG, TCCI and TKG (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
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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, 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
are no Other Taxes imposed by any Governmental Authority in or of the
jurisdiction in which such Non-US Obligor is organized and existing on or by
virtue of the execution or delivery of the Applicable Non-US Obligor
Documents.
(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).
Section 5.12
Representations as to
TCPR. TCPR additionally represents and warrants to the
Administrative Agent and each Lender that it does not own directly or indirectly
in accordance with the attribution rules of Section 1231(a)(3) of the Puerto
Rico Code fifty percent (50%) or more of the value of the stock of any
Lender.
ARTICLE
VI
COVENANTS
Each
Borrower agrees that, so long as any Lender has any Commitment hereunder to such
Borrower or any Loan or any Obligation of such Borrower hereunder shall remain
unpaid or unsatisfied:
Section 6.1
Information. Such
Borrower will deliver to the Administrative Agent and each of the
Lenders:
(a) as
soon as available and in any event within 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 flows 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
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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 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 a
Responsible 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 registration statements (other than
exhibits thereto and any registration statements (x) on Form S-3 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 in the United States 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 a Responsible Officer of such
Borrower setting forth the details thereof and the action which such Borrower is
taking or proposes to take with respect thereto; and
(g) 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 earlier of 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; (ii) on
which such documents are posted on the Securities and Exchange Commission’s
website (www.sec.gov) or on the website for the London Stock Exchange
(www.londonstockexchange.com/rns); or (iii) on which such documents are posted
on such Borrower’s behalf on IntraLinks/IntraAgency or any other 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 electronic copies of such documents to the
Administrative Agent if any Lender requests such Borrower to deliver such copies
until a request to cease delivering copies is given by the Administrative Agent
at the request of 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. The Administrative
Agent shall have no obligation to request
65
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.
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 the business of such Borrower and its
Significant Subsidiaries, taken as a whole, 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 principally 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,
66
renew and
keep in full force and effect, and will cause each Significant Subsidiary to
preserve, renew and keep in full force and effect, their respective corporate
existence and their respective rights, privileges and franchises necessary or
desirable in the normal conduct of business; provided that nothing
in this Section
6.3 shall prohibit (i) any merger or consolidation involving such
Borrower which is permitted by Section 6.6, (ii) the
merger of a Significant Subsidiary into such Borrower or the merger or
consolidation of a Significant Subsidiary with or into another Person if the
corporation surviving such consolidation or merger is a Significant Subsidiary
and if, in each case, after giving effect thereto, no Default with respect to
such Borrower shall have occurred and be continuing or (iii) the termination of
the corporate existence of any Significant Subsidiary if such Borrower in good
faith determines that such termination is in the best interest of such Borrower
and is not materially disadvantageous to the Lenders.
Section 6.4
Compliance with
Laws. Such Borrower will comply, and cause each Significant
Subsidiary to comply, in all material respects with all applicable Laws
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
Section 6.5
Negative
Pledge. Such Borrower will not pledge or otherwise subject to
any lien any property or assets of such Borrower to secure any indebtedness for
borrowed money incurred, issued, assumed or guaranteed by 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 (as to TMCC only), Puerto Rico (as to
TCPR only), Canada (as to TCCI only), the Netherlands (as to TMFNL only),
Germany (as to TKG and TLG only) and the United Kingdom (as to TFSUK only) 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 (as
to TMCC only), Puerto Rico (as to TCPR only), Canada (as to TCCI only), the
Netherlands (as to TMFNL only), Germany (as to TKG and TLG only) and the United
Kingdom (as to TFSUK only);
(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
67
acquisition
through merger or consolidation) or given to secure the payment of all or any
part of the purchase or construction price thereof or to secure any indebtedness
incurred prior to, at the time of, or within one year after, the acquisition or
completion of construction thereof for the purpose of financing all or any part
of the purchase or construction price thereof;
(e) bankers’
liens or rights of offset (including any pledges further to general terms and
conditions of a Dutch bank);
(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 non-recourse 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 accounts receivable or assets,
the records relating thereto and the proceeds, rights and benefits accruing to
it thereunder (the “Securitized Assets”)
and underlying vehicles or assets 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
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its
Consolidated Subsidiaries, all as set forth on the most recent balance sheet of
such Borrower and its Consolidated Subsidiaries prepared in accordance with
GAAP.
Section 6.6
Consolidations. Mergers and Sales of
Assets. (a) Such Borrower shall not consolidate with or merge
into any other Person or convey, transfer or lease (whether in one transaction
or in a series of transactions) all or substantially all of its properties and
assets to any Person, unless:
(i) the
Person formed by such consolidation or into which such Borrower is merged or the
Person which acquires by conveyance or transfer, or which leases, all or
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 a
Responsible 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
69
Borrower,
except in the case of a lease of such Borrower’s properties and assets, shall be
released from its liability as obligor on any of the Loans and under this
Agreement.
Section 6.7
Use of
Proceeds. The proceeds of the Loans made under this Agreement
will be used by such Borrower for its general corporate purposes including,
without limitation, the refunding of its maturing commercial paper, and will not
be used, directly or indirectly, to support activity in or with a country
officially sanctioned by the United States, the United Nations or the European
Union, or to support activity with Persons subject to official sanctions imposed
by the United States, the United Nations or the European Union, in each case by
the Office of Foreign Assets Control as to sanctions imposed by the United
States and as to similar sanctions imposed as to the United Nations or the
European Union. None of such proceeds will be used, directly or
indirectly, for the purpose, whether immediate, incidental or ultimate of buying
or carrying any “margin stock” within the meaning of Regulation
U. During the Tranche A Availability Period and the Tranche B
Availability Period, as applicable, subject to the other terms and conditions of
this Agreement, such Borrower may request and use the proceeds of Loans of one
Type to repay outstanding Loans of another Type.
ARTICLE
VII
DEFAULTS
Section 7.1
Events of
Default. If one or more of the following events (“Events of Default”)
shall have occurred and be continuing with respect to a Borrower:
(a) such
Borrower shall fail to pay when due any principal of any Loan made to it or
shall fail to pay within 5 days of the due date thereof any interest on any
Loan, any fees or any other amount payable by it hereunder;
(b) such
Borrower shall fail to observe or perform any covenant contained in Section 6.1(d), Section 6.5, Section 6.6 or Section
6.7;
(c) such
Borrower shall fail to observe or perform any covenant or agreement contained in
this Agreement (other than those covered by clause (a) or (b) above) for 30 days
after notice thereof has been given to such Borrower by the Administrative Agent
at the request of any Lender;
(d) any
representation, warranty, certification or statement made by such Borrower in
this Agreement or in any certificate, financial statement or other document
delivered pursuant to this Agreement shall prove to have been incorrect in any
material respect when made (or deemed made);
(e) indebtedness
for borrowed money of such Borrower and any of its Subsidiaries in an aggregate
outstanding amount in excess of (i) in the case of TMCC, US$150,000,000 or its
Dollar Equivalent, (ii) in the case of TFSUK, TMFNL or TCCI, US$100,000,000 or
its Dollar Equivalent and (iii) in the case of each other Borrower,
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(s) by the Administrative Agent, such
indebtedness shall not be discharged or such acceleration shall not be rescinded
or annulled;
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(f) such
Borrower or any Significant Subsidiary of such Borrower shall commence or
consent to the commencement of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any
such Person or to all or any material part of its property is instituted without
the consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; provided that,
as to TKG, a mere notification of an imminent illiquidity pursuant to Section
46(b) sentence 1, second half sentence of the German Banking Act
(Kreditwesengesetz) to BaFin shall not be an Event of Default;
(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 an 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 (i) in the case of TMCC,
US$150,000,000 or its Dollar Equivalent, (ii) in the case of TFSUK, TMFNL or
TCCI, US$100,000,000 or its Dollar Equivalent and (iii) in the case of each
other Borrower, 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 TMCC
and 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 any Borrower shall automatically terminate, the
unpaid principal amount of all outstanding Loans
71
made to
such Borrower and all interest and other amounts as aforesaid shall
automatically become due and payable.
Section 7.2 Application of Funds. After
the exercise of remedies provided for in Section 7.1 (or after
the Loans have automatically become immediately due and payable), any amounts
received on account of the Obligations of any Borrower shall be applied by the
Administrative Agent in the following order:
First, to payment of
that portion of the Obligations of such Borrower constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under
Article III)
payable to the Administrative Agent in its capacity as such;
Second, to payment of
that portion of the Obligations of such Borrower constituting fees, indemnities
and other amounts (other than principal and interest) payable to the appropriate
Lenders (including Attorney Costs and amounts payable under Article III), ratably
among them in proportion to the amounts described in this clause Second payable to
them;
Third, to payment of
that portion of the Obligations of such Borrower constituting accrued and unpaid
interest on the Loans, ratably among the appropriate Lenders in proportion to
the respective amounts described in this clause Third payable to
them;
Fourth, to payment of
that portion of the Obligations of such Borrower constituting unpaid principal
of the Loans, ratably among the appropriate Lenders in proportion to the
respective amounts described in this clause Fourth held by them;
and
Last, the balance, if
any, after all of the Obligations of such Borrower have been indefeasibly paid
in full, to such Borrower or as otherwise required by Law.
ARTICLE
VIII
THE
ADMINISTRATIVE AGENT
Section
8.1 Appointment and
Authorization of Administrative Agent. Each Lender hereby
irrevocably appoints, designates and authorizes the Administrative Agent to take
such action on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained
elsewhere herein or in any other Loan Document, the Administrative Agent shall
not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term “agent” herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to connote
any fiduciary
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or other
implied (or express) obligations arising under agency doctrine of any applicable
Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
Section
8.2 Delegation of
Duties. The Administrative Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
Section
8.3 Liability of
Administrative Agent. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein) or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Borrower or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of 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.
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Section 8.5 Notice of
Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to
the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or a
Borrower referring to this Agreement, describing such Default and stating that
such notice is a “notice of default.” The Administrative Agent will
notify the Lenders of its receipt of any such notice. The
Administrative Agent shall take such action with respect to such Default as may
be directed by the applicable Required Lenders in accordance with Article VII; provided, however, that unless
and until the Administrative Agent has received any such direction, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Lenders.
Section 8.6 Credit Decision; Disclosure of
Information by Administrative Agent. Each Lender
acknowledges that no Agent-Related Person has made any representation or
warranty to 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
74
accordance
with the directions of the applicable Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section;
provided, further, that such
Indemnified Liability was incurred by or asserted against such Agent-Related
Person acting as or for the Administrative Agent in connection with such
capacity. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrowers. The undertaking in this Section shall survive termination
of the Aggregate Commitments, the payment of all other Obligations and the
resignation of the Administrative Agent.
Section 8.8 Administrative Agent in its
Individual Capacity. BNP Paribas 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 BNP Paribas were not the Administrative Agent hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge
that, pursuant to such activities, BNP Paribas 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, BNP Paribas 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 BNP
Paribas 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, which such successor
administrative agent shall have entered into a licensing arrangement with Markit
Group Ltd., (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 B Lenders a successor Canadian sub-agent, which shall be a bank that is
not a non-resident of Canada for purposes of Part XIII of the Canadian ITA and
(iii) any Swing Line Agent resigns, the Required Lenders shall appoint from
among the Swing Line Lenders a successor replacement Swing Line agent, which
shall be a bank with an office in the United Kingdom, United States or Canada,
as applicable, or an Affiliate of any such bank with an office in the United
Kingdom, United States or Canada, as applicable, which successor, in each case,
shall consent to such appointment and 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
75
with the
Lenders and the Borrowers, a successor which meets the qualifications set forth
above and consents to the appointment. 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 and duties as
Administrative Agent or Sub-Agent (and, in the case of the Administrative Agent,
the Administrative Agent’s licensing arrangement with Markit) 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 BNP Paribas assigns all of its
Commitments and Committed Loans pursuant to subsection 9.7(b),
BNP Paribas and its Affiliates may, upon 30 days’ notice to the Borrowers, each
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 successor Swing Line Agent(s) and
successor Swing Line Lender hereunder; provided, however, that such
successor Swing Line Agent(s) or successor Swing Line Lender consents to such
appointment; and provided further,
however, that
no failure by the Borrowers to appoint any such successor shall affect the
resignation of BNP Paribas and its Affiliates as such Swing Line Agent and Swing
Line Lender. If BNP Paribas (and its Affiliates) resigns as a Swing
Line Agent and Swing Line Lender, it shall retain all the rights of such 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 successor Swing Line Agent(s)
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
Agents 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
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(a) to file and
prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing by such
Borrower and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders and the
Administrative Agent under Section 2.8 and Section 9.4) allowed
in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;
and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that
the Administrative Agent shall consent to the making of such payments directly
to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Section 2.8 and Section
9.4. Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
Section 8.11 Other Agents, Arrangers and
Managers. None of the Lenders or other Persons identified on
the facing page or signature pages of this Agreement as a “syndication agent,”
“documentation agent,” “co-agent,” “book manager,” “lead manager,” “arranger,”
“lead arranger” or “co-arranger” shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than, in the case
of such Lenders, those applicable to all Lenders as such. Without
limiting the foregoing, none of the Lenders or other Persons so identified shall
have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or other Persons so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
Section 8.12 Canadian
Sub-Agent. The Canadian Sub-Agent is not a non-resident of
Canada for purposes of Part XIII of the Canadian 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 B
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 and in the definition
of “Taxes: in Section 1.1 to the Administrative Agent shall also include the
Canadian Sub-Agent.
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ARTICLE
IX
MISCELLANEOUS
Section 9.1 Amendments,
Etc. Except as otherwise set forth in the last sentence of
this Section, no amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by any Borrower therefrom,
shall be effective unless in writing signed by the applicable Required Lenders
and the applicable Borrower, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(a) waive
any condition set forth in Section 4.1(a)
without the written consent of each Lender;
(b) extend
or increase the Commitment 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
78
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 applicable 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) each Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, any
amendment or waiver of any term of any Money Market Loan (except the increase in
the principal amount thereof or the extension of any Interest Period until after
the Revolving Maturity Date applicable to the Borrower of such Loan) made by a
Lender hereunder shall be effective if signed by such Lender and the applicable
Borrower and acknowledged by the Administrative Agent.
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 any 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.
Except
as otherwise set forth herein, 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 applicable Swing Line Agent(s) and the
Lenders. The Borrowers may also require that any such documents and
signatures be
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confirmed
by a manually-signed original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
(c) Limited Use of Electronic
Mail. Electronic mail and
Internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as provided
in Section 6.1,
and to distribute Loan Documents (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 Agents and Lenders. The Administrative
Agent, the Swing Line Agents 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 applicable 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.
(e) Designation of
Representative for Borrowers. Each of TMCC, TCPR and
TCCI (each, an “Other
Borrower”), by its execution of this Agreement, hereby irrevocably
appoints each of TMCC and TMFNL, acting alone, and with full power of
substitution, as its agent and representative hereunder (in such capacity, each
a “Borrowers’
Representative”), and hereby authorizes, directs and empowers each of
TMCC and TMFNL, acting alone, and with full power of substitution, to act for
and in the name of such Other Borrower and as its agent and representative
hereunder and under the other instruments and agreements referred to
herein. TMCC and TMFNL hereby accept each such
appointment. Each Other Borrower hereby irrevocably authorizes each
of TMCC and TMFNL, acting alone and with full power of substitution, to take
such action on such Other Borrower’s behalf and to exercise such powers
hereunder, under the other Loan Documents, and under the other agreements and
instruments referred to herein or therein as may be contemplated being taken or
exercised by such Other Borrower by the terms hereof and thereof, together with
such powers as may be incidental thereto, including, without limitation, to
borrow hereunder and deliver Requests for Loans hereunder, to convert, continue,
repay or prepay Loans made hereunder, to increase, reduce or terminate the
Commitments, to pay interest, fees, costs and expenses incurred in connection
with the Loans, this Agreement, the other Loan Documents, and the other
agreements and instruments referred to herein or therein, to receive from or
deliver to the Administrative Agent or any Sub-Agent any notices, statements,
reports, certificates or other documents or instruments contemplated herein, in
the other Loan Documents or in any other agreement or instrument referred to
herein, to receive from or transmit to the Administrative Agent or any Sub-Agent
any
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Loan
proceeds or payments, and to execute any agreements, amendments, modifications,
supplements or other documents or instruments in connection with this Agreement
or the other Loan Documents on its behalf, and in each case such Other Borrower
shall be bound as though the Other Borrower itself had duly taken such
action. The Administrative Agent, each Sub-Agent and each Lender
shall be entitled to rely on the appointment and authorization of each
Borrowers’ Representative with respect to all matters related to this Agreement,
the other Loan Documents and any other agreements or instruments referred to
herein or therein whether or not any particular provision hereof or thereof
specifies that such matters may or shall be undertaken by Borrowers’
Representative. In reliance hereon, the Administrative Agent, each
Sub-Agent and each Lender may deal with either of the Borrowers’ Representatives
alone with the same effect as if the Administrative Agent, such Sub-Agent or
such Lender had dealt with each Other Borrower separately and
individually. In the event of any conflict between any notices,
communications or other acts of the Borrowers’ Representative and those of any
Other Borrower, the notices, communications and acts of the Borrowers’
Representative shall prevail; provided, however, that nothing
in this Section
9.2(e) shall authorize either Borrowers’ Representative to deliver a
Compliance Certificate or a notice required to be delivered pursuant to Section 6.1(d) or
(f) on behalf
of an Other Borrower, and the parties hereto acknowledge that any Compliance
Certificate or notice required to be delivered pursuant to Section 6.1(d) or
(f) by a
Borrower pursuant to this Agreement must be provided directly by a Responsible
Officer of such Borrower.
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 and Expenses
. The Borrowers agree (a) to pay or reimburse the
Administrative Agent for all reasonable 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 where required 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 reasonable
search and filing charges and fees and taxes related thereto, and other
reasonable out-of-pocket expenses incurred by the Administrative Agent and the
reasonable cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender. All amounts due
under this
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Section 9.4 shall be
payable within ten Business Days after delivery to the Borrowers of a
certificate setting forth in reasonable detail the basis for the amounts
demanded. The agreements in this Section shall survive the
termination of the Aggregate Commitments and repayment of all other
Obligations. Notwithstanding anything to the contrary contained in
this Agreement, (i) this Section 9.4 shall not govern any indemnification or
other amounts relating to or attributable to taxes, and (ii) all indemnification
and other amounts relating or attributable to taxes shall be governed solely and
exclusively by Section 3.1.
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
(collectively “Losses”) 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
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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. Notwithstanding anything to the contrary contained in this
Agreement, (i) this Section 9.5 shall not govern Losses or other amounts
relating to or attributable to taxes, and (ii) all Losses and other amounts
relating or attributable to taxes shall be governed solely and exclusively by
Section 3.1.
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
(g) 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
any assignment shall be subject to the following additional conditions (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
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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 the case of TMFNL, such 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 (with
respect to periods it was a Lender), 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 a non-fiduciary 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
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contrary. The
Register shall be available for inspection by the Borrowers and any Lender, at
any reasonable time and from time to time upon reasonable prior
notice.
(d) Any
Lender may at any time, without the consent of, or notice to, any Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person or a Borrower or any of the Borrowers’ Affiliates) (each, a
“Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(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 TMFNL, the
amount of such participations sold shall not be less than the Dollar Equivalent
of EUR 50,000 and (iv) 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) Each
Lender that sells a participation interest in all or a portion of such Lender’s
rights and obligations under this Agreement shall record, acting solely for this
purpose as non-fiduciary agent of the Borrowers, in book entries (as defined in
Temporary Treasury Regulation §5f.103-1) maintained by such Lender the name and
the amount of the participating interest of each Participant entitled to receive
payments in respect of such participating interest.
(g) 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 or any central bank having jurisdiction
over such Lender; 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.
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(h) 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.
(i) As
used herein, the following terms have the following meanings:
“Eligible Assignee”
means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d)
any other Person (other than a natural person) approved by (i) the
Administrative Agent and (ii) unless an Event of Default with respect to such
Borrower has occurred and is continuing, the applicable Borrower (each such
approval not to be unreasonably withheld or delayed); provided that,
notwithstanding the foregoing (w) 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) “Eligible Assignee” shall not include a
Borrower or any of the Borrowers’ Affiliates and (y) “Eligible Assignee” shall
not include any Person that is not a regulated lending institution in the United
States, Canada, Japan or the European Union.
“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, including in connection with a
pledge or assignment in accordance with Section 9.7(g); (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
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Borrower;
(h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than a Borrower; or (i) to the National Association of
Insurance Commissioners or any other similar organization. In
addition, the Administrative Agent and the Lenders may disclose the existence of
this Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the Commitments, and the
Loans. For the purposes of this Section, “Information” means
all information received from a Borrower relating to such Borrower or its
business, other than any 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
87
shall not
be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
Section 9.13 Survival of Representations and
Warranties. All representations and warranties made hereunder
and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and
delivery hereof and thereof. Such representations and warranties have
been or will be relied upon by the Administrative Agent and each Lender,
regardless of any investigation made by the Administrative Agent or any Lender
or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any
Borrowing and shall continue in full force and effect as long as any Loan or any
other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of
Credit shall remain outstanding.
Section
9.14 Severability. If any provision of
this Agreement or the other Loan Documents is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be affected
or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the illegal, invalid or unenforceable provisions. The invalidity
of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section
9.15 Tax
Forms.
(a) (i) Each
Tranche A Lender that is not a “United States person” within the meaning of
Section 7701(a)(30) of the Code (a “Foreign Lender”)
shall deliver to TMCC (with a copy 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 (x) 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 payments to be made to such
Foreign Lender pursuant to this Agreement), (y) IRS Form W-8ECI or any successor
thereto (relating to payments to be made to such Foreign Lender pursuant to this
Agreement) or (z) 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, and as
reasonably requested by TMCC in writing, each such Foreign Lender shall, to the
extent it may lawfully do so, (A) promptly submit to TMCC (with a copy 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 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
88
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 or on account of United States taxes from amounts
payable to such Foreign Lender. In addition, 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
the extent reasonably practicable, making and filing an appropriate application
for relief under a double taxation agreement.
(ii) With
respect to each Tranche A Lender, to the extent under applicable law such Lender
can provide TKG and TLG with a certificate, statement or form required by the
German taxing authorities in order to be eligible for exemption from, or
reduction of, withholding taxes under German tax law, such Lender shall execute
and deliver such certificate, statement or form at the time it becomes a party
to this Agreement and from time to time as reasonably requested by TKG or
TLG.
(iii) As
of the date that each Lender becomes a Tranche A Lender under this Agreement,
each such Lender represents and warrants to the Administrative Agent and TCPR
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
or as reasonably requested by TCPR in writing, each such Lender, to the extent
it may lawfully do so, shall (A) promptly submit to TCPR (with a copy 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 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 on or account of Puerto Rico taxes from amounts payable to such
Lender.
(iv) [Intentionally
omitted].
(v) 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 TMCC (with a copy 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
89
times as
may be necessary in the determination of TMCC or 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 Puerto Rico or United States withholding
tax; and (B) any information such Lender chooses to transmit with such
certificates, statements or forms, and any other certificate or statement of
exemption required under the Code.
(vi) 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 its obligations under 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.
(vii) 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 TMCC or the Administrative Agent in writing, 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 TMCC
or 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.
(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 or (ii) any Lender fails
to consent to an amendment,
90
modification
or waiver of this Agreement, or to a request that Eurocurrency Rate Loans be
made in a currency other than those 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), TMCC 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 TMCC in such instance) pursuant to Section 9.7(b)
to one or more other Lenders or Eligible Assignees procured by TMCC; provided, however, that if TMCC
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 THE COURTS OF THE STATE OF NEW YORK SITTING IN THE
COUNTY OF NEW YORK IN THE CITY OF NEW YORK OR OF THE UNITED STATES 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,
91
ACTION OR
PROCEEDING BROUGHT IN THE UNITED STATES OF AMERICA AS ITS 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.
92
Section
9.19 PATRIOT Act
Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative 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
Administrative Agent, as applicable, to identify such Borrower in accordance
with the Act , and each Borrower agrees to provide such information in its
possession upon the reasonable request of a Lender or the Administrative
Agent.
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 Administrative Agent could purchase US Dollars or
Canadian Dollars with such other currency at BNP Paribas’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
93
SECTION
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
94
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/ Takahisa
Iizuka
Name: Takahisa
Iizuka
Title: Managing
Director
S-1
Toyota 364-Day Credit Agreement Signature Page
TOYOTA
MOTOR CREDIT CORPORATION
By: /s/ George
Borst
Name: George
Borst
Title: President
& Chief Executive Officer
S-2
Toyota 364-Day Credit Agreement Signature Page
TOYOTA
FINANCIAL SERVICES (UK) PLC
By: /s/ Doug
Gulies
Name: Doug
Gulies
Title: Managing
Director
S-3
Toyota 364-Day Credit Agreement Signature Page
TOYOTA
KREDITBANK GMBH
By: /s/ Peter
Pollhammer
Name: Peter
Pollhammer
Title: Managing
Director
By: /s/ Christian
Ruben
Name: Christian
Ruben
Title: Managing
Director
S-4
Toyota 364-Day Credit Agreement Signature Page
TOYOTA
CREDIT DE PUERTO RICO CORP.
By: /s/ George
Borst
Name: George
Borst
Title: President
& Chief Executive Officer
S-5
Toyota 364-Day Credit Agreement Signature Page
TOYOTA
CREDIT CANADA INC.
By: /s/ Lorenzo
Baldesarra
Name: Lorenzo
Baldesarra
Title: President
S-6
Toyota 364-Day Credit Agreement Signature Page
TOYOTA
LEASING GMBH
By: /s/ Peter
Pollhammer
Name: Peter
Pollhammer
Title: Managing
Director
By: /s/ Christian
Ruben
Name: Christian
Ruben
Title: Managing
Director
S-7
Toyota 364-Day Credit Agreement Signature Page
BNP PARIBAS, as
Administrative
Agent, a Swing Line Agent, a Swing Line Lender and a Lender
By: /s/ Andy
Strait
Name: Andy
Strait
Title: Managing
Director
By: /s/ Eric
Slear
Name: Eric
Slear
Title: Vice
President
S-8
Toyota 364-Day Credit Agreement Signature Page
BNP PARIBAS
(CANADA),
as
Canadian Sub-Agent and as a Lender
By: /s/ Andrew
Sclater
Name: Andrew
Sclater
Title: Vice
president Corporate Banking
By: /s/ Don R.
Lee
Name: Don
R. Lee
Title: Managing
Director Corporate Banking
S-9
Toyota 364-Day Credit Agreement Signature Page
BNP PARIBAS
LONDON,
as a
Swing Line Agent
By: /s/ Steve
Duranti
Name: Steve
Duranti
Title: Relationship
Manager
By: /s/ Alasdair
Macleod
Name: Alasdair
Macleod
Title: Relationship
Manager
S-10
Toyota 364-Day Credit Agreement Signature Page
CITIBANK, N.A.,
as
a
Syndication Agent, Swing Line Lender and a Lender
By: /s/ Andrew
Sidford
Name: Andrew
Sidford
Title: Vice
President
S-11
Toyota 364-Day Credit Agreement Signature Page
CITIBANK,
N.A., CANADIAN BRANCH,
as a
Lender
By: /s/ Niyousha
Zarinpour
Name: Niyousha
Zarinpour
Title: Authorized
Signer
S-12
Toyota 364-Day Credit Agreement Signature Page
BANK
OF AMERICA, N.A.,
as a
Syndication Agent, Swing Line Lender and a Lender
By: /s/ Alan H.
Roche
Name: Alan
H. Roche
Title: Managing
Director
S-13
Toyota 364-Day Credit Agreement Signature Page
BANK
OF AMERICA, N.A., CANADIAN BRANCH,
as a
Lender
By: /s/ Medina Sales de
Andrade
Name: Medina
Sales de Andrade
Title: Vice
President
S-14
Toyota 364-Day Credit Agreement Signature Page
BANK
OF TOKYO-MITSUBISHI UFJ, LTD,
as a
Syndication Agent and as a Lender
By: /s/ Yuichi
Okura
Name: Yuichi
Okura
Title: General
Manager, Los Angeles Branch
S-15
Toyota 364-Day Credit Agreement Signature Page
BANK
OF TOKYO-MITSUBISHI UFJ
(CANADA),
as a
Lender
By: /s/ Yoshihiro
Yonekura
Name: Yoshihiro
Yonekura
Title: Vice
President and Group Head
S-16
Toyota 364-Day Credit Agreement Signature Page
HSBC
BANK USA, NATIONAL ASSOCIATION,
as a
Lender
By: /s/ Christopher J.
Heusler
Name: Christopher
J. Heusler
Title: Managing
Director, #7222
S-17
Toyota 364-Day Credit Agreement Signature Page
JP
MORGAN CHASE BANK, N.A.,
as a
Lender
By: /s/ John J.
Coffey
Name: John
J. Coffey
Title: Managing
Director
S-18
Toyota 364-Day Credit Agreement Signature Page
SUMITOMO
MITSUI BANKING CORPORATION,
as a
Lender
By: /s/ Takashi
Kakiuchi
Name: Takashi
Kakiuchi
Title: Senior
Vice President
S-19
Toyota 364-Day Credit Agreement Signature Page
SUMITOMO
MITSUI BANKING CORPORATION,
as a
Lender
By: /s/ Koichi
Matsuki
Name: Koichi
Matsuki
Title: Joint
General Manager
Duesseldorf
Branch
S-19
Toyota 364-Day Credit Agreement Signature Page
SUMITOMO
MITSUI BANKING CORPORATION,
as a
Lender
By: /s/ Konstantinos
Karabalis
Name: Konstantinos
Karabalis
Title: Deputy
General Manager
S-19
Toyota 364-Day Credit Agreement Signature Page
SUMITOMO
MITSUI BANKING CORPORATION OF CANADA,
as a
Lender
By: /s/ Gotaro
Michihiro
Name: Gotaro
Michihiro
Title: President
& CEO
S-20
Toyota 364-Day Credit Agreement Signature Page
MIZUHO
CORPORATE BANK, LTD.
LOS
ANGELES AGENCY,
as a
Lender
By: /s/ Joe
Kitahara
Name: Joe
Kitahara
Title: Joint
General Manager
S-21
Toyota 364-Day Credit Agreement Signature Page
MIZUHO
CORPORATE BANK, LTD.
CANADA
BRANCH,
as a
Lender
By: /s/ Kazuoki
Okuma
Name: Kazuoki
Okuma
Title: Joint
General Manager
S-22
Toyota 364-Day Credit Agreement Signature Page
BARCLAYS
BANK PLC,
as a
Lender
By: /s/ Craig
Malloy
Name: Craig
Malloy
Title: Director
S-23
Toyota 364-Day Credit Agreement Signature Page
THE
ROYAL BANK OF SCOTLAND PLC,
as a
Lender
By: /s/ L. Peter
Yetman
Name: L.
Peter Yetman
Title: SVP
S-24
Toyota 364-Day Credit Agreement Signature Page
THE
TORONTO DOMINION BANK,
as a
Lender
By: /s/ Debbi L.
Brito
Name: Debbi
L. Brito
Title: Authorized
Signatory
S-25
Toyota 364-Day Credit Agreement Signature Page
THE
TORONTO DOMINION BANK,
(LONDON
BRANCH)
as a
Lender
By: /s/ James Neil
Stewart
Name: James
Neil Stewart
Title: Regional
Head of Credit Management
TD Bank,
London Branch
S-25
Toyota 364-Day Credit Agreement Signature Page
SOCIETE
GENERALE,
as a
Lender
By: /s/ Carol
Radice
Name: Carol
Radice
Title: Director
S-26
Toyota 364-Day Credit Agreement Signature Page
SOCIETE
GENERALE (CANADA BRANCH),
as a
Lender
By: /s/ David
Baldoni
Name: David
Baldoni
Title: Managing
Director
By: /s/ Paul
Primavesi
Name: Paul
Primavesi
Title: Director
S-27
Toyota 364-Day Credit Agreement Signature Page
DEUTSCHE
BANK AG, NEW YORK BRANCH,
as a
Lender
By: /s/ Hans-Josef
Thiele
Name: Hans-Josef
Thiele
Title: Director
By: /s/ Yvonne
Tilden
Name: Yvonne
Tilden
Title: Director
S-28
Toyota 364-Day Credit Agreement Signature Page
DEUTSCHE
BANK AG, CANADA BRANCH,
as a
Lender
By: /s/ Rod
O’Hara
Name: Rod
O’Hara
Title: Director
By: /s/ Marcellus
Leung
Name: Marcellus
Leung
Title: Assistant
Vice President
S-29
Toyota 364-Day Credit Agreement Signature Page
BANCO
SANTANDER SA., NEW YORK BRANCH
as a
Lender
By: /s/ Ignacio
Campillo
Name: Ignacio
Campillo
Title: Managing
Director
By: /s/ Jorge
Saavedro
Name: Jorge
Saavedro
Title: Executive
Director
S-30
Toyota 364-Day Credit Agreement Signature Page
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ Shaheen
Malik
Name: Shaheen
Malik
Title: Vice
President
By: /s/ Kevin
Buddhdew
Name: Kevin
Buddhdew
Title: Associate
S-31
Toyota 364-Day Credit Agreement Signature Page
GOLDMAN
SACHS BANK USA,
as a
Lender
By: /s/ Mark
Walton
Name: Mark
Walton
Title: Authorized
Signatory
S-32
Toyota 364-Day Credit Agreement Signature Page
ING
BANK N.V. DUBLIN BRANCH,
as a
Lender
By: /s/ Shaun
Hawley
Name: Shaun
Hawley
Title: Vice
President
By: /s/ Aidan
Neill
Name: Aidan
Neill
Title: Director
S-33
Toyota 364-Day Credit Agreement Signature Page
UBS
LOAN FINANCE LLC,
as a
Lender
By: /s/ Irja R.
Otsa
Name: Irja
R. Otsa
Title: Associate
Director
By: /s/ Mary E.
Evans
Name: Mary
E. Evans
Title: Associate
Director
S-34
Toyota 364-Day Credit Agreement Signature Page
THE
SUMITOMO TRUST & BANKING CO., LTD.,
as a
Lender
By: /s/Yuji
Kabe
Name: Yuji
Kabe
Title: Vice
President and Manager
S-35
Toyota 364-Day Credit Agreement Signature Page
BANCO
BILBAO VIZCAYA ARGENTARIA, S.A., NEW YORK BRANCH,
as a
Lender
By: /s/ Guilherme
Gobbo
Name: Guilherme
Gobbo
Title: Vice
President
By: /s/ Michael
Oka
Name: Michael
Oka
Title: Managing
Director
S-36
Toyota 364-Day Credit Agreement Signature Page
INTESA
SANPAOLO S.P.A.,
as a
Lender
By: /s/ Christopher
Piper
Name: Christopher
Piper
Title: Senior
Relationship Manager
By: /s/ Phil
Exworthy
Name: Phil
Exworthy
Title: Senior
Relationship Manager
S-37
Toyota 364-Day Credit Agreement Signature Page
FIFTH
THIRD BANK,
as a
Lender
By: /s/ Yumiko
Tokiwa
Name: Yumiko
Tokiwa
Title: Vice
President
S-38
Toyota 364-Day Credit Agreement Signature Page
MORGAN
STANLEY BANK, N.A.,
as a
Lender
By: /s/ Ryan
Vetsch
Name: Ryan
Vetsch
Title: Authorized
Signatory
S-39
Toyota 364-Day Credit Agreement Signature Page
WELLS
FARGO BANK, N.A.,
as a
Lender
By: /s/ Vanessa Sheh
Meyer
Name: Vanessa
Sheh Meyer
Title: Senior
Vice President
S-40
Toyota 364-Day Credit Agreement Signature Page
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 stated minimum) which that Lender is from time to time required to
maintain as
|
Schedule 1.1
|
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 2.8(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.
|
6.
|
In
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 practicable after publication by the Financial Services
Authority, supply to the
|
Schedule
1.1
|
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
|
Schedule
1.1
|
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.
|
Schedule
1.1
SCHEDULE
2.1
COMMITMENTS
AND
PRO RATA SHARES
AND
PRO RATA SHARES
Lender
|
Tranche
A Commitment (US$)
|
Tranche
B Commitment (US$)
|
Swing
Line Commitment (US$)
|
Commitment
Cap (US$)
|
BNP
Paribas (Tranche B Commitment is held by BNP Paribas
(Canada))
|
450,000,000
|
145,000,000
|
333,333,334
|
450,000,000
|
Citibank,
N.A. (Tranche B Commitment is held by Citibank, N.A., Canadian
Branch)
|
450,000,000
|
145,000,000
|
333,333,333
|
450,000,000
|
Bank
of America, N.A. (Tranche B Commitment is held by Bank of America, Canada
Branch)
|
450,000,000
|
145,000,000
|
333,333,333
|
450,000,000
|
Bank
of Tokyo-Mitsubishi UFJ, Ltd (Tranche B Commitment is held by Bank of
Tokyo Mitsubishi UFJ (Canada))
|
450,000,000
|
41,000,000
|
0
|
450,000,000
|
HSBC
Bank USA, National Association (Tranche B Commitment is held by HSBC Bank
USA, National Association (Toronto Branch))
|
375,000,000
|
106,000,000
|
0
|
375,000,000
|
JP
Morgan Chase Bank, N.A.
|
375,000,000
|
85,000,000
|
0
|
375,000,000
|
Sumitomo
Mitsui Banking Corporation (Tranche B Commitment is held by Sumitomo
Mitsui Banking Corporation of Canada)
|
350,000,000
|
41,000,000
|
0
|
350,000,000
|
1
Lender
|
Tranche
A Commitment (US$)
|
Tranche
B Commitment (US$)
|
Swing
Line Commitment (US$)
|
Commitment
Cap (US$)
|
Mizuho
Corporate Bank, Ltd. Los Angeles Agency (Tranche B Commitment is held by
Mizuho Corporate Bank, Ltd., Canada Branch)
|
250,000,000
|
50,000,000
|
0
|
250,000,000
|
Barclays
Bank PLC
|
200,000,000
|
20,000,000
|
0
|
200,000,000
|
The
Royal Bank of Scotland plc
|
200,000,000
|
20,000,000
|
200,000,000
|
|
The
Toronto Dominion Bank
|
130,000,000
|
130,000,000
|
0
|
130,000,000
|
Societe
Generale (Tranche B Commitment is held by Societe Generale (Canada
Branch))
|
130,000,000
|
40,000,000
|
0
|
130,000,000
|
Deutsche
Bank AG New York Branch (Tranche B Commitment is held by Deutsche Bank AG
Canada Branch)
|
130,000,000
|
32,000,000
|
0
|
130,000,000
|
Banco
Santander S.A., New York Branch
|
130,000,000
|
0
|
0
|
130,000,000
|
Credit
Suisse, Cayman Islands Branch
|
130,000,000
|
0
|
0
|
130,000,000
|
Goldman
Sachs Bank USA
|
130,000,000
|
0
|
0
|
130,000,000
|
ING
Bank N.V., Dublin Branch
|
130,000,000
|
0
|
0
|
130,000,000
|
UBS
Loan Finance LLC
|
130,000,000
|
0
|
0
|
130,000,000
|
The
Sumitomo Trust & Banking Co., Ltd.
|
100,000,000
|
0
|
0
|
100,000,000
|
Banco
Bilbao Vizcaya Argentaria, S.A., New York Branch
|
80,000,000
|
0
|
0
|
80,000,000
|
2
Lender
|
Tranche
A Commitment (US$)
|
Tranche
B Commitment (US$)
|
Swing
Line Commitment (US$)
|
Commitment
Cap (US$)
|
Intesa
Sanpaolo S.p.A.
|
80,000,000
|
0
|
0
|
80,000,000
|
Fifth
Third Bank
|
50,000,000
|
0
|
0
|
50,000,000
|
Morgan
Stanley Bank, N.A.
|
50,000,000
|
0
|
0
|
50,000,000
|
Wells
Fargo Bank, N.A.
|
50,000,000
|
0
|
0
|
50,000,000
|
TOTAL:
|
5,000,000,0000
|
1,000,000,000
|
1,000,000,000
|
5,000,000,000
|
3
Lender
|
Pro
Rata Share of Tranche A
|
Pro
Rata Share of Tranche B
|
Pro
Rata Share of Commitment Cap
|
BNP
Paribas (Tranche B Commitment is held by BNP Paribas
(Canada))
|
9.0%
|
14.5%
|
9.0%
|
Citibank,
N.A. (Tranche B Commitment is held by Citibank, N.A., Canadian
Branch)
|
9.0%
|
14.5%
|
9.0%
|
Bank
of America, N.A. (Tranche B Commitment is held by Bank of America, Canada
Branch)
|
9.0%
|
14.5%
|
9.0%
|
Bank
of Tokyo-Mitsubishi UFJ, Ltd (Tranche B Commitment is held by Bank of
Tokyo Mitsubishi UFJ (Canada))
|
9.0%
|
4.1%
|
9.0%
|
HSBC
Bank USA, National Association (Tranche B Commitment is held by HSBC Bank
USA, National Association (Toronto Branch))
|
7.5%
|
10.6%
|
7.5%
|
JP
Morgan Chase Bank, N.A.
|
7.5%
|
8.5%
|
7.5%
|
Sumitomo
Mitsui Banking Corporation (Tranche B Commitment is held by Sumitomo
Mitsui Banking Corporation of Canada)
|
7.0%
|
4.1%
|
7.0%
|
Mizuho
Corporate Bank, Ltd. Los Angeles Agency (Tranche B Commitment is held by
Mizuho Corporate Bank, Ltd., Canada Branch)
|
5.0%
|
5.0%
|
5.0%
|
Barclays
Bank PLC
|
4.0%
|
2.0%
|
4.0%
|
The
Royal Bank of Scotland plc
|
4.0%
|
2.0%
|
4.0%
|
The
Toronto Dominion Bank
|
2.6%
|
13.0%
|
2.6%
|
4
Lender
|
Pro
Rata Share of Tranche A
|
Pro
Rata Share of Tranche B
|
Pro
Rata Share of Commitment Cap
|
Societe
Generale (Tranche B Commitment is held by Societe Generale (Canada
Branch))
|
2.6%
|
4.0%
|
2.6%
|
Deutsche
Bank AG New York Branch (Tranche B Commitment is held by Deutsche Bank AG
Canada Branch)
|
2.6%
|
3.2%
|
2.6%
|
Banco
Santander S.A., New York Branch
|
2.6%
|
0
|
2.6%
|
Credit
Suisse, Cayman Islands Branch
|
2.6%
|
0
|
2.6%
|
Goldman
Sachs Bank USA
|
2.6%
|
0
|
2.6%
|
ING
Bank N.V., Dublin Branch
|
2.6%
|
0
|
2.6%
|
UBS
Loan Finance LLC
|
2.6%
|
0
|
2.6%
|
The
Sumitomo Trust & Banking Co., Ltd.
|
2.0%
|
0
|
2.0%
|
Banco
Bilbao Vizcaya Argentaria, S.A., New York Branch
|
1.6%
|
0
|
1.6%
|
Intesa
Sanpaolo S.p.A.
|
1.6%
|
0
|
1.6%
|
Fifth
Third Bank
|
1.0%
|
0
|
1.0%
|
Morgan
Stanley Bank, N.A.
|
1.0%
|
0
|
1.0%
|
Wells
Fargo Bank, N.A.
|
1.0%
|
0
|
1.0%
|
TOTAL:
|
100.0%
|
100.0%
|
100.
0%
|
5
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):
BNP
Paribas RCC Inc.
525
Washington Boulevard
8th
Floor
Jersey
City, NJ 07310
Attention:
Dina Wilson
Telephone:
201-850-6807
Facsimile:
201-850-4020
Electronic
Mail: nyls.agency.support@us.bnpparibas.com
(for
Payments):
US
Dollar (USD)
Bank: BNP
Paribas, New York
ABA
No: 026-007-689
ACCT
No: 52131543476
ACCT
Name : BNP
Paribas Chicago Branch
Ref: Toyota
Canadian
Dollar (CAD)
Bank: BNP
Paribas, Montreal
(BNPACAMMXXX)
FFC
Name: BNP
Paribas Chicago Branch
(BNPAUS3NXXX)
Account
No: 11-01000038-001-78
Attn: Loan
Servicing
Ref: Toyota
Eurocurrency
(EUR)
Bank: BNP
Paribas, Paris
(BNPAFRPPXXX)
FFC
Name: BNP
Paribas, Chicago Branch
(BNPAUS3NXXX)
Account
No: 40080257
IBAN
No: FR7630004008970004008025726
Attn: Loan
Servicing
1
Ref: Toyota
British
Pounds (GBP)
Bank: BNP
Paribas, London
(BNPAGB22XXX)
Sort
Code: 23
46 35
FFC
Name: BNP
Paribas, Chicago Branch
(BNPAUS3NXXX)
Account
No:
230090183000
Attn:
Loan Servicing
Ref:
Toyota
|
CANADIAN
SUB-AGENT:
|
(for
Notices of Payments and Requests for Loans):
BNPP
Canada
1981
McGill College
Montreal
QC H3A 2W8
Attention: Paule
Fortin/Lisa Martel, Loan Administrator/Team leader
Telephone: 1-888-284-6220
Facsimile: 514-285-2944
Electronic
Mail: cals.support@americas.bnpparibas.com
(for
Payments):
US
Dollar (USD)
Clearing
Agent/Payment To: BNPAUS3N
ABA No.:
026007689
Beneficiary
Bank: BNPACAMM
Beneficiary:
BNP Paribas Canada, Loan Servicing
Account
No.: 0001152131543487
Reference:
Toyota Credit Canada Inc.
Attention:
CALS.SUPPORT
Canadian
Dollar (CAD)
Beneficiary
Bank: BNPACAMM
Beneficiary:
BNP Paribas Canada, Loan Servicing
Account
No.: 0001152131543487
Reference:
Toyota Credit Canada Inc.
Attention:
CALS.SUPPORT
|
SWING
LINE AGENT:
|
(for
Notices of Payments and Requests for Loans):
2
US Dollar
Swing Line Loans:
BNP
Paribas RCC Inc.
525
Washington Boulevard
8th
Floor
Jersey
City, NJ 07310
Attention:
Dina Wilson
Telephone:
201-850-6807
Facsimile:
201-850-4020
Electronic
Mail: nyls.agency.support@us.bnpparibas.com
Payment
instructions:
US
Dollar (USD)
BNP
Paribas, New York
ABA No:
026-007-689
ACCT
No: 52121543476
ACCT
Name: BNP Paribas Chicago Branch
Ref:
Toyota
Canadian
Dollar Swing Line Loans
BNPP
Canada
1981
McGill College
Montreal
QC H3A 2W8
Attention: Paule
Fortin/Lisa Martel, Loan Administrator/Team leader
Telephone: 1-888-284-6220
Facsimile: 514-285-2944
Electronic
Mail: cals.support@americas.bnpparibas.com
Payment
instructions:
Bank: BNP
Paribas, Montreal
(BNPACAMMXXX)
FFC
Name: BNP
Paribas, New York Branch
(BNPAUS3NXXX)
Account
No: 00011010669001CAD
Attn: Loan
Servicing
Ref:
Toyota
EUR
and GBP Swing Line Loans:
Loans and
Agency Desk
BNP
Paribas London
10
Harewood Avenue
London
NW1 6AA
Telephone: 44
(0)20 7595 4332
Facsimile:
44 (0)20 7595 6195
3
Electronic
Mail: lisa.verdigi@uk.bnpparibas.com
Payment
instructions:
EUR
BNP
Paribas Paris
Swift
BNPAFRPP
BNP
Paribas London
Swift
BNPAGB22
Account
02280424
IBAN No:
FR7630004008970000228042426
GBP
BNP
Paribas London
BNPAGB22
Sort Code
23-46-35
Account
No : 50117609
IBAN No:
GB86BARC20325350117609
|
BORROWERS:
|
Toyota
Motor Credit Corporation
19001
South Western Avenue
P.O. Box
2958
Mail Stop
NF-10
Torrance,
CA 90509-2958
Attention:
Marcy Morita, Business Strategy Manager and Jeff Carter, Assistant Global
Treasurer
Telephone:
(310) 468-6197
Facsimile:
(310) 468-6194
Toyota
Motor Finance (Netherlands) B.V.
Atrium
Strawinskylaan
3105
1077 ZX
Amsterdam
The
Netherlands
Attention:
Senior Finance Officer
Telephone:
31 20 502 5314
Telefax:
31 20 502 5319
With a
copy to:
Toyota
Motor Credit Corporation
19001
South Western Avenue
P.O. Box
2958
4
Mail Stop
NF-10
Torrance,
CA 90509-2958
Attention:
Marcy Morita, Business Strategy Manager and Jeff Carter, Assistant Global
Treasurer
Telephone:
(310) 468-6197
Facsimile:
(310) 468-6194
With
a copy to:
Toyota
Financial Services (UK) PLC
Great
Burgh
Burgh
Heath
Epsom
Surrey
KT18 5UZ
United
Kingdom
Attention:
Head of Treasury
Telephone:
44 (0) 1737 365 590
Facsimile:
44 (0) 1737 365 596
Toyota
Financial Services (UK) PLC
Great
Burgh
Burgh
Heath
Epsom
Surrey
KT18 5UZ
United
Kingdom
Attention:
Head of Treasury
Telephone:
44 (0) 1737 365 590
Facsimile:
44 (0) 1737 365 596
With a
copy to:
Toyota
Motor Credit Corporation
19001
South Western Avenue
P.O. Box
2958
Mail Stop
NF-10
Torrance,
CA 90509-2958
Attention:
Marcy Morita, Business Strategy Manager and Jeff Carter, Assistant Global
Treasurer
Telephone:
(310) 468-6197
Facsimile:
(310) 468-6194
Toyota
Kreditbank GmbH
c/o
Toyota Financial Services (UK) PLC
Great
Burgh
Burgh
Heath
Epsom
5
Surrey
KT18 5UZ
United
Kingdom
Attention: Head of Treasury
Telephone:
44 (0) 1737 365 590
Facsimile:
44 (0) 1737 365 596
With a
copy to:
Toyota
Motor Credit Corporation
19001
South Western Avenue
P.O. Box
2958
Mail Stop
NF-10
Torrance,
CA 90509-2958
Attention:
Marcy Morita, Business Strategy Manager and Jeff Carter, Assistant Global
Treasurer
Telephone:
(310) 468-6197
Facsimile:
(310) 468-6194
Toyota
Credit de Puerto Rico Corp.
c/o
Toyota Motor Credit Corporation
19001
South Western Avenue
P.O. Box
2958
Mail Stop
NF-10
Torrance,
CA 90509-2958
Attention:
Marcy Morita, Business Strategy Manager and Jeff Carter, Assistant Global
Treasurer
Telephone:
(310) 468-6197
Facsimile:
(310) 468-6194
Toyota
Credit Canada Inc.
80 Micro
Court, Suite 200
Markham,
Ontario
Canada
L3R 9Z5
Attention:
Head of Treasury
Telephone:
(905) 513-5409
With a
copy to:
Toyota
Motor Credit Corporation
19001
South Western Avenue
P.O. Box
2958
Mail Stop
NF-10
Torrance,
CA 90509-2958
Attention:
Marcy Morita, Business Strategy Manager and Jeff Carter, Assistant Global
Treasurer
Telephone:
(310) 468-6197
Facsimile:
(310) 468-6194
6
Toyota Leasing
GmbH
c/o
Toyota Financial Services (UK) PLC
Great
Burgh
Burgh
Heath
Epsom
Surrey
KT18 5UZ
United
Kingdom
Attention:
Head of Treasury
Telephone:
44 (0) 1737 365 590
Facsimile:
44 (0) 1737 365 596
With a
copy to:
Toyota
Motor Credit Corporation
19001
South Western Avenue
P.O. Box
2958
Mail Stop
NF-10
Torrance,
CA 90509-2958
Attention:
Marcy Morita, Business Strategy Manager and Jeff Carter, Assistant Global
Treasurer
Telephone:
(310) 468-6197
Facsimile:
(310) 468-6194
Website:
Investor
Relations section of www.toyotafinancial.com
7