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Exhibit 10.1
CREDIT AGREEMENT
(364 DAY FACILITY)
Dated as of September 11, 2003
among
TOYOTA CREDIT DE PUERTO RICO CORP.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
and
The Other Lenders Party Hereto
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BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
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JPMORGAN CHASE BANK,
as Syndication Agent
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THE BANK OF TOKYO-MITSUBISHI, LTD.
and
CITIBANK, N.A.,
as Documentation Agents
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS..........................................................................................1
Section 1.1 Definitions.........................................................................1
ARTICLE II THE CREDITS .......................................................................................13
Section 2.1 Committed Loans....................................................................13
Section 2.2 Borrowings, Conversions and Continuations of Committed Loans.......................13
Section 2.3 Money Market Loans.................................................................15
Section 2.4 Prepayments........................................................................17
Section 2.6 Repayment of Loans.................................................................18
Section 2.7 Interest...........................................................................19
Section 2.8 Fees...............................................................................19
Section 2.9 Computation of Interest and Fees...................................................20
Section 2.10 Evidence of Debt...................................................................20
Section 2.11 Payments Generally.................................................................20
Section 2.12 Sharing of Payments................................................................22
Section 2.13 Extension of Maturity Date.........................................................22
Section 2.14 Increase in Commitments............................................................24
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY............................................................25
Section 3.1 Taxes..............................................................................25
Section 3.2 Illegality.........................................................................26
Section 3.3 Inability to Determine Rates.......................................................26
Section 3.4 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar
Rate Loans ........................................................................26
Section 3.5 Funding Losses.....................................................................27
Section 3.6 Matters Applicable to all Requests for Compensation................................28
ARTICLE IV CONDITIONS ........................................................................................29
Section 4.1 Effectiveness......................................................................29
Section 4.2 Conditions to all Loans............................................................30
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................................................31
Section 5.1 Corporate Existence and Power......................................................31
Section 5.2 Corporate and Governmental Authorization: No Contravention.........................31
Section 5.3 Binding Effect.....................................................................31
Section 5.4 Financial Information..............................................................31
Section 5.5 Litigation.........................................................................31
Section 5.6 Compliance with ERISA..............................................................32
Section 5.7 Environmental Matters..............................................................32
Section 5.8 Taxes..............................................................................32
Section 5.9 Subsidiaries.......................................................................32
Section 5.10 Not an Investment Company..........................................................32
Section 5.11 Disclosure.........................................................................32
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Section 5.12 Tax Shelter Regulations............................................................32
ARTICLE VI COVENANTS .........................................................................................33
Section 6.1 Information........................................................................33
Section 6.2 Maintenance of Property; Insurance.................................................34
Section 6.3 Conduct of Business and Maintenance of Existence...................................34
Section 6.4 Compliance with Laws...............................................................34
Section 6.5 Negative Pledge....................................................................34
Section 6.6 Consolidations.....................................................................36
Section 6.7 Use of Proceeds....................................................................36
Section 6.8 Credit Support Agreement...........................................................37
ARTICLE VII DEFAULTS .........................................................................................37
Section 7.1 Events of Default..................................................................37
Section 7.2 Application of Funds...............................................................38
ARTICLE VIII THE ADMINISTRATIVE AGENT.........................................................................39
Section 8.1 Appointment and Authorization of Administrative Agent..............................39
Section 8.2 Delegation of Duties...............................................................39
Section 8.3 Liability of Administrative Agent..................................................40
Section 8.4 Reliance by Administrative Agent...................................................40
Section 8.5 Notice of Default..................................................................40
Section 8.6 Credit Decision; Disclosure of Information by Administrative Agent.................41
Section 8.7 Indemnification of Administrative Agent............................................41
Section 8.8 Administrative Agent in its Individual Capacity....................................42
Section 8.9 Successor Administrative Agent.....................................................42
Section 8.10 Administrative Agent May File Proofs of Claim......................................42
Section 8.11 Other Agents, Arrangers and Managers...............................................43
ARTICLE IX MISCELLANEOUS .....................................................................................43
Section 9.1 Amendments, Etc....................................................................43
Section 9.2 Notices and Other Communications; Facsimile Copies.................................44
Section 9.3 No Waiver; Cumulative Remedies.....................................................46
Section 9.4 Attorney Costs, Expenses and Taxes.................................................46
Section 9.5 Indemnification by the Borrower....................................................46
Section 9.6 Payments Set Aside.................................................................47
Section 9.7 Successors and Assigns.............................................................47
Section 9.8 Confidentiality....................................................................50
Section 9.9 Set-off............................................................................51
Section 9.10 Interest Rate Limitation...........................................................51
Section 9.11 Counterparts.......................................................................51
Section 9.12 Integration........................................................................51
Section 9.13 Survival of Representations and Warranties.........................................52
Section 9.14 Severability.......................................................................52
Section 9.15 Tax Forms..........................................................................52
Section 9.16 Replacement of Lenders.............................................................54
Section 9.17 Governing Law......................................................................54
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Section 9.18 Waiver of Right to Trial by Jury...................................................54
SCHEDULE 2.1 COMMITMENTS AND PRO RATA SHARES.....................................................1
SCHEDULE 9.2 ADMINISTRATIVE AGENT'S OFFICE, CERTAIN ADDRESSES FOR NOTICES........................1
EXHIBIT A FORM OF COMMITTED LOAN NOTICE.......................................................1
EXHIBIT B FORM OF NOTE........................................................................1
EXHIBIT C FORM OF COMPLIANCE CERTIFICATE......................................................1
EXHIBIT D ASSIGNMENT AND ASSUMPTION...........................................................1
EXHIBIT E FORM OF MONEY MARKET QUOTE REQUEST..................................................1
EXHIBIT F FORM OF INVITATION FOR MONEY MARKET QUOTES..........................................1
EXHIBIT G FORM OF MONEY MARKET QUOTE..........................................................1
EXHIBIT H FORM OF OPINION OF COUNSEL FOR THE BORROWER.........................................1
EXHIBIT I FORM OF OPINION OF PIETRANTONI MENDEZ &
ALVAREZ LLP.........................................................................1
EXHIBIT J FORM OF OPINION OF MORRISON & FOERSTER LLP..........................................1
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CREDIT AGREEMENT
(364 DAY FACILITY)
THIS CREDIT AGREEMENT (364 Day Facility) (this "Agreement") dated as of
September 11, 2003 is made among TOYOTA CREDIT DE PUERTO RICO CORP., a
corporation organized under the laws of the Commonwealth of Puerto Rico (the
"Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and, individually, a "Lender"), BANK OF AMERICA, N.A., as
Administrative Agent, BANC OF AMERICA SECURITIES LLC, as Sole Lead Arranger and
Sole Book Manager, JPMORGAN CHASE BANK, as Syndication Agent, and THE BANK OF
TOKYO-MITSUBISHI, LTD. and CITIBANK, N.A., as Documentation Agents.
WHEREAS, the Borrower has 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 Bank of America, N.A. in its capacity as
Administrative Agent for the Lenders hereunder, and its successors in such
capacity.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 9.2, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) 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.
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"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement.
"Applicable Rate" means the following percentages per annum:
Applicable Rate
Facility Fee Eurodollar Rate Base Rate
- ----------------------------- --------------------------- ----------------------
0.04% 0.11% 0.00%
If the Borrower converts the Loans to term Loans pursuant to Section
2.13(c), the "Applicable Rate" shall be 0.10% greater than the Applicable Rate
indicated above during the period after the Revolving Maturity Date.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit D.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the reasonable allocated cost of internal legal services and all
expenses and disbursements of internal counsel.
"Audited Financial Statements" means (i) the audited consolidated
balance sheet of Holdings and its Consolidated Subsidiaries for the fiscal year
ended March 31, 2003 and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year of Holdings
and its Consolidated Subsidiaries, including the notes thereto or (ii) if
delivered for a subsequent fiscal year of the Borrower pursuant to this
Agreement, the audited balance sheet of the Borrower and its Consolidated
Subsidiaries for such fiscal year and the related consolidated statements of
income or operations, shareholders' equity and cash flows for such fiscal year
of the Borrower and its Consolidated Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Revolving Maturity Date, (b) the date of
termination of the Aggregate Commitments pursuant to Section 2.5, and (c) the
date of termination of the commitment of each Lender to make Loans pursuant to
Section 7.1.
"Bank of America" means Bank of America, N.A. and its successors.
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"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means Toyota Credit de Puerto Rico Corp.
"Borrowing" means a Committed Borrowing or a Money Market Borrowing.
"Business Day" means (i) any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, any of the following: the state where the Administrative
Agent's Office is located, California, New York, and San Juan, Puerto Rico and
(ii) if such day relates to any Eurodollar Rate Loan or Money Market LIBOR Loan,
any such day on which dealings in Dollar deposits are conducted by and between
banks in the London interbank eurodollar market.
"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 obligation to make Committed
Loans to the Borrower pursuant to Section 2.1 in an aggregate principal amount
at any one time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 2.1 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to Section
2.1.
"Committed Loan" means a loan made by a Lender pursuant to Section 2.1.
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"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other and (c) a
continuation of Eurodollar Rate Loans, pursuant to Section 2.2(a), which, if in
writing, shall be substantially in the form of Exhibit A. A Committed Loan
Notice for a Eurodollar Rate Loan with an Interest Period extending beyond the
Revolving Maturity Date may only be delivered concurrently with a notice of
election by the Borrower to extend the Maturity Date to the Term Maturity Date
pursuant to Section 2.13(c).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Consolidated Subsidiary" means, with respect to any Person, at any
date any Subsidiary or other entity the accounts of which would be consolidated
with those of such Person in its consolidated financial statements if such
statements were prepared as of such date.
"Control" has the meaning specified in the definition of "Affiliate."
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Moody's (collectively, the "Debt Ratings") of the
Borrower's unsecured short-term debt credit enhanced in accordance with
Section 6.8.
"Debtor Relief Law" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan or Money
Market Loan, the Default Rate shall be an interest rate equal to the interest
rate (including any Applicable Rate) otherwise applicable to such Loan plus 2%
per annum, in each case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans required to be funded by it hereunder within
three Business Days of the date required to be funded by it hereunder, (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, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" has the meaning specified in Section 9.7(g).
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"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 the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Code.
"Eurodollar Base Rate" has the meaning set forth in the definition of
Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurodollar Rate = Eurodollar Base Rate
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1.00 minus Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be available,
the rate per annum equal to the rate determined by the Administrative Agent to
be the offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b)
are not available, the rate per annum determined by the Administrative Agent as
the rate of interest at which deposits in Dollars for delivery on the first day
of such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by the
5
Administrative Agent and with a term equivalent to such Interest Period would be
offered by the Administrative Agent's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 4:00 p.m. (London
time) two Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Loan" means a Committed Loan that bears interest at a
rate based on the Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any date during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirements) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning set forth in Section 7.1.
"Exempt Lender" means a 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
Corporate 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 the Borrower 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 the Borrower. As used in this definition, "Corporate Lender" means a
Lender that is or would be taxable as a corporation under the Puerto Rico Code.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" means a letter, dated July 17, 2003 among the Borrower,
the Administrative Agent and the Arranger.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
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"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board, consistently
applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, central bank or other entity exercising executive, legislative,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Holdings" means TCPR Holdings, Inc., a California corporation.
"Indemnified Liabilities" has the meaning set forth in Section 9.5.
"Indemnitees" has the meaning set forth in Section 9.5.
"Interest Payment Date" means, (a) as to any Eurodollar Rate Loan or
Money Market Loan, the last day of each Interest Period applicable to such Loan
and the Maturity Date; provided, however, that if any Interest Period for a
Eurodollar Rate Loan or Money Market Loan exceeds three months, the respective
dates that fall every three months after the beginning of such Interest Period
shall also be Interest Payment Dates; and (b) as to any Base Rate Committed
Loan, the last Business Day of each March, June, September and December, the
Revolving Maturity Date, and, if later than the Revolving Maturity Date, the
Maturity Date.
"Interest Period" means, (a) as to each Eurodollar Rate Loan, the
period commencing on the date such Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the 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 Borrower may elect in accordance with Section 2.3, and (c) as
to each Money Market Absolute Rate Loan, the period commencing on the date such
Loan is disbursed and ending on the date that is such number of days thereafter
as the Borrower may elect in accordance with Section 2.3; provided that:
(i) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Business Day;
(ii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii) no Interest Period for a Eurodollar Rate Loan shall
extend beyond the Maturity Date, and no Interest Period for Money
Market Loans shall extend beyond the Revolving Maturity Date.
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Notwithstanding the foregoing, the Borrower may select an Interest
Period for a Eurodollar Rate Loan which would end after the Revolving
Maturity Date 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.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or
administration thereof, and all applicable administrative orders of any
Governmental Authority.
"Lender" has the meaning specified in the introductory paragraph
hereto.
"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 Borrower
and the Administrative Agent.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the Eurodollar Rate pursuant to Section 2.3.
"Loan" means an extension of credit by a Lender to the 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).
"Loan Documents" means this Agreement, each Note, and the Fee Letter.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $25,000,000.
"Maturity Date" means the Revolving Maturity Date, or if the Loans are
converted to term Loans pursuant to Section 2.13, the Term Maturity Date.
"Maximum Aggregate Commitments" means $500,000,000.
"Money Market Absolute Rate" has the meaning set forth in Section
2.3(d)(ii).
"Money Market Absolute Rate Loan" means a loan to be made by a Lender
pursuant to an Absolute Rate Auction.
"Money Market Borrowing" means a borrowing consisting of simultaneous
Money Market Loans of the same Type and, in the case of Money Market LIBOR Loans
bearing interest
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calculated based on the Eurodollar Rate, having the same Interest Period made by
a Lender pursuant to Section 2.3.
"Money Market LIBOR Loan" means a loan to be made by a Lender pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 3.2).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.3(d)(ii).
"Money Market Quote" means an offer, substantially in the form of
Exhibit G hereto, by a Lender to make a Money Market Loan in accordance with
Section 2.3.
"Money Market Quote Request" means a Money Market Quote Request
substantially in the form of Exhibit E hereto.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Note" or "Notes" means a promissory note or promissory notes made by
the Borrower in favor of a Lender evidencing Loans made by such Lender,
substantially in the form of Exhibit B.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, the Borrower arising under any Loan
Document or otherwise with respect to any Loan, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against the Borrower of any proceeding
under any Debtor Relief Laws naming the 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.
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"Other Taxes" means any and all present or future stamp or documentary
taxes and any other excise or property taxes or charges or similar levies which
arise from any payment made under any Loan Document or from the execution,
delivery, performance, enforcement or registration of, or otherwise with respect
to, any Loan Document, excluding taxes, charges and levies payable in respect of
any Money Market Loan for any reason except a Regulatory Change occurring after
the date that the Money Market Quote for such Money Market Loan was delivered.
"Outstanding Amount" means, with respect to Committed Loans and Money
Market Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowing and prepayments or repayments of Committed
Loans and Money Market Loans, as the case may be, occurring on such date.
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning set forth in Section 9.7(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pro Rata Share" means, with respect to each 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 Commitment of such Lender at such
time and the denominator of which is the amount of the Aggregate Commitments at
such time; provided that if the commitment of each Lender to make Loans 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 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.
"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.
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"Rating Agency" means S&P or Moody's.
"Register" has the meaning set forth in Section 9.7(c).
"Regulatory Change" shall mean, with respect to any Lender, the
introduction of or any change in or in the interpretation of any Law, or such
Lender's compliance therewith.
"Request for Loans" means (a) with respect to a Borrowing, conversion
or continuation of Committed Loans, a Committed Loan Notice and (b) with respect
to a Money Market Borrowing, a Notice of Money Market Borrowing (as defined in
Section 2.3(f)).
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the Aggregate Commitments or, if the commitment of each
Lender to make Loans has been terminated pursuant to Section 7.1 or if the Loans
have been converted to term Loans pursuant to Section 2.13(c), Lenders holding
in the aggregate more than 50% of the Total Outstandings; 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.
"Regulation U" means Regulation U of the FRB, as in effect from time to
time.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, treasurer or assistant treasurer of the Borrower as set
forth in a written notice from the 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 the 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 the Borrower shall be conclusively presumed to have
been authorized by all necessary corporate action on the part of the Borrower.
"Revolving Maturity Date" means the later of (a) September 10, 2004,
and (b) if maturity is extended pursuant to Section 2.13(b), such extended
revolving maturity date as determined pursuant to such Section.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Significant Subsidiary" means, with respect to any Subsidiary of the
Borrower, a Subsidiary which would meet the definition of "Significant
Subsidiary" contained in Regulation S-X (or similar successor provision) of the
Securities and Exchange Commission ("Regulation S-X") if the Borrower were a
registrant, as such term is defined in Regulation S-X.
"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
11
owned by such Person; unless otherwise specified, "Subsidiary" means a
Subsidiary of the Borrower.
"Taxes" means, with respect to any payment by the Borrower under this
Agreement or any other Loan Document, any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, (i) in the case of
the Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise and similar taxes imposed on it, by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Administrative Agent or such Lender, as the case may be, is organized or where
the Administrative Agent's Office or a Lender's Lending Office is located and
(ii) any United States or Puerto Rico withholding tax imposed on payments by the
Borrower under this Agreement or any other Loan Document to a Lender that is
subject to such withholding tax (x) with respect to payments on a Money Market
Loan, on the date that such Lender delivers a Money Market Quote for such Money
Market Loan and (y) with respect to all other payments, on the date such Lender
becomes a party to this Agreement.
"Term Maturity Date" means the date that is one year from the Revolving
Maturity Date upon conversion of the Loans 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 the aggregate Outstanding Amount of all
Loans.
"Type" means, with respect to a Loan, its character as a Base Rate
Loan, a Eurodollar Rate Loan, a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" and "U.S." means the United States of America,
including the States and the District of Columbia, but excluding its territories
and possessions.
Section 1.2 Other Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
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(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
Section 1.3 Accounting Terms. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements.
Section 1.5 References to Agreements and Laws. Unless otherwise
expressly provided herein, (a) references to Organization Documents, agreements
(including the Loan Documents) and other contractual instruments shall be deemed
to include all subsequent amendments, restatements, extensions, supplements and
other modifications thereto; and (b) references to any Law shall include all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.
Section 1.6 Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Pacific time (daylight or
standard, as applicable).
ARTICLE II
THE CREDITS
Section 2.1 Committed Loans. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make loans (each such loan, a
"Committed Loan") to the Borrower from time to time, on any Business Day during
the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Commitment; provided, however, that
after giving effect to any Committed Borrowing, (i) the Total Outstandings shall
not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount
of the
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Committed Loans of any Lender shall not exceed such Lender's Commitment. Within
the limits of each Lender's Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.1, prepay under
Section 2.4, and, unless converted to a term Loan pursuant to Section 2.13(c),
reborrow under this Section 2.1. Committed Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
Section 2.2 Borrowings, Conversions and Continuations of Committed
Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans
from one Type to the other, and each continuation of Eurodollar Rate Loans shall
be made upon the Borrower's irrevocable notice to the Administrative Agent,
which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 10:00 a.m. (i) three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans, and (ii) on the requested date of any Borrowing of or
conversion of Eurodollar Rate Loans to Base Rate Committed Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.2(a) must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer or any other Person designated in writing by a Responsible Officer of
the Borrower to the Administrative Agent. Each Borrowing of, conversion to or
continuation of Loans shall be in a principal amount of $50,000,000 or a whole
multiple of $5,000,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to the other,
or a continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Committed Loans to be borrowed,
converted or continued, (iv) the Type of Committed Loans to be borrowed or to
which existing Committed Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto. If the Borrower fails to
specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower
fails to give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to, Base Rate Loans.
Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to,
or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the Administrative
Agent shall promptly notify each Lender of the contents thereof and the amount
of its Pro Rata Share of the applicable Committed Loans, and if no timely notice
of a conversion or continuation is provided by the Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans described in the preceding subsection. In the case of a
Committed Borrowing, each Lender shall make the amount of its Committed Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 1:00 p.m. on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.2, the Administrative Agent shall
make all funds so received available to the Borrower in like funds as received
by the Administrative Agent either by (i) crediting the account of the Borrower
on the books of Bank of
14
America with the amount of such funds or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to (and reasonably acceptable
to) the Administrative Agent by the Borrower.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may
be continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and
the Lenders of the interest rate applicable to any Interest Period for
Eurodollar Rate Loans upon determination of such interest rate. The
determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans
are outstanding, the Administrative Agent shall notify the Borrower and the
Lenders of any change in Bank of America's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions
of Committed Loans from one Type to the other, and all continuations of
Committed Loans as the same Type, there shall not be more than ten (10) Interest
Periods in effect with respect to Committed Loans.
Section 2.3 Money Market Loans.
(a) In addition to Committed Loans pursuant to Section 2.1, the
Borrower may, as set forth in this Section, request the Lenders during the
Availability Period to make offers to make Money Market Loans in United States
Dollars to the Borrower; provided, however, that after giving effect to any
Money Market Borrowing the Total Outstandings shall not exceed the Aggregate
Commitments. The Lenders may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section.
(b) When the 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 the 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 the
Borrower and the Administrative Agent shall have mutually agreed and shall have
notified to the Lenders not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective) specifying: (i) the proposed date of Borrowing, which
shall be a Business Day, (ii) the aggregate amount of such Borrowing, which
shall be $50,000,000 or a larger multiple of $5,000,000, (iii) the duration of
the Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period, and (iv) whether the Money Market Quotes
requested are to set forth a Money Market Margin or a Money Market Absolute
Rate. The Borrower may request offers to make Money Market Loans for more than
one Interest Period in
15
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 the Borrower
and the Administrative Agent may agree) of any other Money Market Quote Request.
(c) Promptly upon receipt of a Money Market Quote Request, the
Administrative Agent shall send to the Lenders by telex or facsimile
transmission an Invitation for Money Market Quotes, which shall constitute an
invitation by the 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 Lender may submit a Money Market Quote containing an
offer or offers to make Money Market Loans in response to any
Invitation for Money Market Quotes. Each Money Market Quote must
comply with the requirements of this subsection (d) and must be
submitted to the Administrative Agent by telex or facsimile
transmission at the Administrative Agent's Office not later than (x)
1:00 p.m. on the fourth Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 9:00 a.m. on the
proposed date of Borrowing, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as the 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 the Borrower of the terms of the offer or offers
contained therein not later than 15 minutes prior to the deadline for
the other Lenders. Subject to Articles IV and VII, any Money Market
Quote so made shall be irrevocable except with the written consent of
the Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall specify (A) the proposed
date of Borrowing; (B) the principal amount of the Money Market Loan
for which each such offer is being made, which principal amount (w) may
be greater than or less than the Commitment of the quoting Lender, (x)
must be $5,000,000 or a larger multiple of $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 Eurodollar Rate (the
"Money Market Margin") offered for each such Money Market Loan,
expressed as a percentage (specified to the nearest 1/10,000th of 1%)
to be added to or subtracted from such base rate; (D) in the case of an
Absolute Rate Auction, the rate of interest per annum (specified to the
nearest 1/10,000th of 1%) (the "Money Market Absolute Rate") offered
for each such Money Market Loan; and (E) the identity of the quoting
Lender. A Money Market Quote may set forth up to five separate offers
by the quoting Lender with respect to each Interest Period specified in
the related Invitation for Money Market Quotes.
16
(iii) Any Money Market Quote shall be disregarded if it (A) is
not substantially in conformity with the definition thereof or does not
specify all of the information required by subsection (d)(ii); (B)
contains qualifying, conditional or similar language; (C) proposes
terms other than or in addition to those set forth in the applicable
Invitation for Money Market Quotes; or (D) arrives after the time set
forth in subsection (d)(i).
(e) The Administrative Agent shall promptly notify the 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 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 9:00 a.m. on the third Business Day prior to the
proposed date of Borrowing of Money Market LIBOR Loans or 10:00 a.m. on the
Business Day of the proposed date of Borrowing of Money Market Absolute Rate
Loans (or such other time or date as the 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 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
Borrower may accept any Money Market Quote in whole or in part; provided that
(i) the aggregate principal amount of each Money Market Borrowing may not exceed
the applicable amount set forth in the related Money Market Quote Request; (ii)
the principal amount of each Money Market Borrowing must be $50,000,000 or a
larger multiple of $5,000,000; and (iii) acceptance of offers may only be made
on the basis of ascending Money Market Margins or Money Market Absolute Rates,
as the case may be.
(g) If offers are made by two or more Lenders with the same Money
Market Margins or Money Market Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which such offers are
accepted for the related Interest Period, the principal amount of Money Market
Loans in respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in multiples of
$1,000,000, as the Administrative Agent may deem appropriate) in proportion to
the aggregate principal amounts of such offers. Determinations by the
Administrative Agent of the amounts of Money Market Loans shall be conclusive in
the absence of manifest error.
Section 2.4 Prepayments.
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(a) The Borrower may, upon notice to the Administrative Agent, at
any time or from time to time voluntarily prepay Money Market Loans bearing
interest at the Base Rate pursuant to Section 3.2 and Committed Loans in whole
or in part without premium or penalty; provided that (i) such notice must be
received by the Administrative Agent not later than 10:00 a.m. (A) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B)
on the date of prepayment of Base Rate Committed Loans or Money Market Loans
bearing interest at the Base Rate pursuant to Section 3.2; and (ii) any
prepayment of Loans shall be in a principal amount of $50,000,000 or a whole
multiple of $5,000,000 in excess thereof. Except as provided in the preceding
sentence, the Borrower may not prepay all or any portion of the principal amount
of any Money Market Loan 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 will promptly notify
each 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
the Borrower, the 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 Eurodollar 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 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) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans in an aggregate amount equal to such excess.
Section 2.5 Termination or Reduction of Commitments. The Borrower may,
upon notice to the Administrative Agent, terminate the Aggregate Commitments, or
from time to time permanently reduce the Aggregate Commitments; provided that
(i) any such notice shall be received by the Administrative Agent not later than
10:00 a.m. three Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate amount of $25,000,000
or any whole multiple of $5,000,000 in excess thereof, and (iii) the Borrower
shall not terminate or reduce the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings
would exceed the Aggregate Commitments. 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 Commitment of each Lender according to its Pro Rata Share. All
facility fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
Section 2.6 Repayment of Loans.
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(a) The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Loans outstanding on such date.
(b) The Borrower shall repay each Money Market Loan on the earlier
to occur of (i) the last day of the Interest Period therefor and (ii) the
Revolving Maturity Date.
Section 2.7 Interest.
(a) Subject to the provisions of subsection (b) below, (i) subject
to Section 3.2, each Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each
Base Rate Committed Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate; (iii) subject to Section 3.2, each Money Market
LIBOR Loan shall bear interest on the outstanding principal amount thereof for
the Interest Period applicable thereto at a rate per annum equal to the sum of
the Eurodollar Rate for such Interest Period plus or minus the Money Market
Margin quoted by the Lender making such Loan; and (iv) each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof for the Interest Period applicable thereto at a rate per annum equal to
the Money Market Absolute Rate quoted by the Lender making such Loan.
(b) If any amount payable by the 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 Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding
Obligations 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. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a facility
fee equal to the Applicable Rate times the actual daily amount of the Aggregate
Commitments, regardless of usage (or, if the Aggregate Commitments have
terminated, on the Outstanding Amount of all Loans). The facility fee shall
accrue at all times during the Availability Period (and thereafter so long as
any Loans remain outstanding), including at any time during which one or more of
the conditions in Article IV is not met, and shall be due and payable quarterly
in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur
19
after the Closing Date, and on the Maturity Date (and, if applicable, thereafter
on demand). The facility fee shall be calculated quarterly in arrears.
(b) Other Fees. (i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall
have been separately agreed upon in writing in the amounts and at the
times so specified. Such fees shall be fully earned when paid and shall
not be refundable for any reason whatsoever.
Section 2.9 Computation of Interest and Fees. All computations of
interest for Base Rate Loans when the Base Rate is determined by Bank of
America's "prime rate" shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.11(a), bear interest for one day.
Section 2.10 Evidence of Debt. The Loans made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and by
the Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Loans made by the Lenders
to the 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 the Borrower under the Loan Documents to pay any amount owing with
respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Administrative Agent, the 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 and maturity of its Loans and payments with
respect thereto.
Section 2.11 Payments Generally.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 12:00 noon
on the date specified herein. The Administrative Agent will promptly distribute
to each Lender its Pro Rata Share (or other applicable share as provided herein)
of such payment in like
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funds as received by wire transfer to such Lender's Lending Office. All payments
received by the Administrative Agent after 12:00 noon shall be deemed received
on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a
day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(c) Unless the Borrower or any Lender has notified the
Administrative Agent, prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that the Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at
the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent may make a demand therefor upon the Borrower, and the Borrower
shall pay such amount to the Administrative 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 or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the 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 funds
for any Loan to be made by such Lender as provided in the foregoing provisions
of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to
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the applicable Borrowing set forth in Article IV are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without
interest, on the succeeding Business Day.
(e) The obligations of the Lenders hereunder to make Committed Loans
are several and not joint. The failure of any Lender to make any Committed Loan
on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Committed Loan.
(f) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
Section 2.12 Sharing of Payments. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Committed Loans made
by it, any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Committed Loans made by them as shall be necessary to
cause such purchasing Lender to share the excess payment in respect of such
Committed Loans pro rata with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from the purchasing
Lender under any of the circumstances described in Section 9.6 (including
pursuant to any settlement entered into by the purchasing Lender in its
discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender's ratable share (according
to the proportion of (i) the amount of such paying Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered, without further interest thereon. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by Law, exercise all of its rights of payment
(including any right of set-off, but subject to Section 9.9) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Administrative Agent will keep
records (which shall be conclusive and binding in the absence of manifest error)
of participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase have
the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
Section 2.13 Extension of Maturity Date.
(a) Not earlier than 60 days prior to, nor later than 45 days prior
to, the Revolving Maturity Date then in effect, the Borrower may, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), request a
364-day extension of the Revolving Maturity Date
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then in effect. Within 30 days of delivery of such notice, each 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
promptly notify the Borrower and the Lenders of the Lenders' responses. If any
Lender declines, or is deemed to have declined, to consent to such extension,
the Borrower may cause any such Lender to be replaced as a Lender pursuant to
Section 9.16. The Borrower shall be deemed to have withdrawn any request to
extend the Revolving Maturity Date 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).
(b) The Revolving Maturity Date shall be extended only if all
Lenders (after giving effect to any replacements of Lenders permitted herein)
(the "Consenting Lenders") have consented thereto. If so extended, the Revolving
Maturity Date, as to the Consenting Lenders, shall be extended to a date 364
days from the Revolving Maturity Date then in effect, effective as of the
Revolving Maturity Date then in effect (such existing Revolving Maturity Date
being the "Revolving Extension Effective Date"). The Administrative Agent and
the Borrower shall promptly confirm to the Lenders such extension and the
Revolving Extension Effective Date. As a condition precedent to such extension,
the Borrower shall deliver to the Administrative Agent a certificate of the
Borrower dated as of the Revolving Extension Effective Date (in sufficient
copies for each Lender) signed by a Responsible Officer of the Borrower (i)
certifying and attaching the resolutions adopted by the Borrower approving or
consenting to such extension and (ii) in the case of the Borrower, certifying
that, before and after giving effect to such extension, (A) the representations
and warranties 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 exists. The 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) Not later than 30 days prior to the Revolving Maturity Date, the
Borrower may, upon notice to the Administrative Agent (which shall promptly
notify the Lenders), elect to convert the Loans into term Loans payable on the
date (the "Term Maturity Date") one year from the Revolving Maturity Date.
Concurrently with delivering any Request for Loans relating to Eurodollar Rate
Loans with an Interest Period ending after the Revolving Maturity Date the
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
the Borrower so elects to convert the Loans to term Loans, subject to the
satisfaction of the conditions precedent contained in this Section 2.13(c), the
Maturity Date shall automatically be extended to the Term Maturity Date
effective as of the Revolving Maturity Date 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 shall be term Loans that (a)
may not be reborrowed once repaid, (b) may be converted from Base Rate Loans to
Eurodollar Rate Loans and from Eurodollar Rate Loans to
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Base Rate Loans, and (c) are payable in full on the Term Maturity Date. The
Administrative Agent and the Borrower shall promptly confirm to the Lenders such
extension and the Term Extension Effective Date. As conditions precedent to such
extension, (i) the Borrower shall deliver to the Administrative Agent a
certificate of the Borrower dated as of the Term Extension Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of the
Borrower certifying that no Default exists, and (ii) as of the Term Extension
Effective Date, any outstanding Money Market Loans 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) 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, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may
from time to time, request an increase in the Aggregate Commitments to an amount
(for all such requests) not exceeding the Maximum Aggregate Commitments. At the
time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is
requested to respond (which shall in no event be less than 10 Business Days from
the date of delivery of such notice to the Lenders). Each 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 Lender not
responding within such time period shall be deemed to have declined to increase
its Commitment. The Administrative Agent shall notify the Borrower and each
Lender of the Lenders' responses to each request made hereunder. To achieve the
full amount of a requested increase, the Borrower may also invite additional
Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel. The consent
of the Lenders is not required to increase the amount of the Aggregate
Commitments pursuant to this Section, except that each 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 Aggregate Commitments by the amount requested by the Borrower
pursuant to this Section 2.14(a), the Borrower may (i) withdraw its request for
an increase in its entirety or (ii) accept, in whole or in part, the increases
that have been offered.
(b) If the Aggregate Commitments are increased in accordance with
this Section, the Administrative Agent and the Borrower shall determine the
effective date (the "Increase Effective Date") and the final allocation of such
increase. The Administrative Agent shall promptly notify the Borrower and the
Lenders of the final allocation of such increase and the Increase Effective
Date. As a condition precedent to such increase, the Borrower shall deliver to
the Administrative Agent a certificate of the Borrower dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of the Borrower certifying that no Default exists. The Borrower shall
prepay any Committed Loans outstanding on the Increase Effective Date (and pay
any additional amounts required pursuant to Section 3.5) to the
24
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.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.1 Taxes.
(a) Any and all payments by the 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 the Borrower shall be required by any Laws to deduct any Taxes or Other Taxes
from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section), each of the
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the 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, the Borrower shall
furnish to the Administrative Agent (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay to each Lender Other
Taxes incurred by such Lender.
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section) paid by the Administrative Agent and such Lender, (ii)
amounts payable under Section 3.1(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with
respect thereto. Payment under this subsection (d) shall be made within 15 days
after the date the Lender or the Administrative Agent makes a demand therefor.
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Section 3.2 Illegality. If any Lender determines that any Regulatory
Change occurring on or after the date of this Agreement has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful as a result of
such Regulatory Change, for any Lender or its applicable Lending Office to make,
maintain or fund Eurodollar Rate Loans or Money Market LIBOR Loans, or to
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Committed Loans to Eurodollar Rate Loans or to make a Money
Market LIBOR Loan for which a Money Market Quote has been delivered shall be
suspended until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such determination no longer exist (and
such Lender shall give such notice promptly upon receiving knowledge that such
circumstances no longer exist). If a Lender shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Eurodollar Rate
Loans or Money Market LIBOR Loans to maturity and shall so specify in a notice
pursuant to the preceding sentence, upon receipt of such notice, the Borrower
shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans or Money Market
LIBOR Loans, as the case may be, of such Lender to Base Rate Loans, either on
the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans or Money Market LIBOR Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain
such Eurodollar Rate Loans. Upon any such prepayment or conversion, the 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.
Section 3.3 Inability to Determine Rates. If the Required Lenders
determine that for any reason adequate and reasonable means do not exist for
determining the Eurodollar Base Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan, or that the Eurodollar Base Rate for
any requested Interest Period with respect to a proposed Eurodollar Rate Loan
does not adequately and fairly reflect the cost to such Lenders of funding such
Loan, the Administrative Agent will promptly so notify the Borrower and each
Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Rate Loans shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice (which revocation shall
be made promptly upon such instruction from the Required Lenders). Upon receipt
of such notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Committed Borrowing
of Base Rate Loans in the amount specified therein.
Section 3.4 Increased Cost and Reduced Return; Capital Adequacy;
Reserves on Eurodollar Rate Loans.
(a) If on or after (i) the date hereof, in the case of Eurodollar
Rate Loans, or (ii) the date that a Money Market Quote is given for a Money
Market LIBOR Loan, any Lender determines that as a result of a Regulatory
Change, there shall be a material increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurodollar Rate Loans or
26
Money Market LIBOR Loan, or a reduction in the amount received or receivable by
such Lender in connection with any Eurodollar Rate Loan or Money Market LIBOR
Loan (excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section
3.1 shall govern), (ii) changes in the basis of taxation of overall net income
or overall gross income by the United States, Puerto Rico or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve
requirements utilized in the determination of the Eurodollar 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 Borrower shall pay
to such Lender such additional amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender determines that the introduction of any Law after
the date hereof regarding capital adequacy or any change therein or in the
interpretation thereof, or compliance by such Lender (or its Lending Office)
therewith (including determination that, for purposes of capital adequacy
requirements, the Commitment of such Lender does not constitute a commitment
with an original maturity of one year or less), has the effect of materially
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), subject to
Section 3.4(c),the 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 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, the Borrower shall not 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 the Borrower and the
Administrative Agent under this Section 3.4(c) or (ii) the date such amount
arose or began accruing (and such Lender did not know such amount was arising or
accruing) as a result of the retroactive application of Regulatory Change or
other event giving rise to the claim for compensation.
Section 3.5 Funding Losses. Within 15 days after delivery of the
certificate described in the Section 3.6(a) by any Lender (with a copy to the
Administrative Agent) from time to time, the 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):
27
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 9.16;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained but excluding loss of margin for
the period after which any such payment or failure to convert, borrow or prepay.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.5, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the
London interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Eurodollar Rate Loan was in fact so funded.
Section 3.6 Matters Applicable to all Requests for Compensation.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth in reasonable detail the
additional amount or amounts to be paid to it hereunder shall be conclusive if
prepared reasonably and in good faith. In determining such amount, the
Administrative Agent or such Lender may use any reasonable averaging and
attribution methods.
(b) If (i) the obligation of any Lender to make Eurodollar Rate
Loans shall be suspended pursuant to Section 3.2 or (ii) any Lender has demanded
compensation under Section 3.1 or Section 3.4 with respect to Eurodollar Rate
Loans, the Borrower may give notice to such Lender through the Administrative
Agent that, unless and until such Lender notifies the 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 the
Borrower (A) all Loans which would otherwise be made by such Lender as
Eurodollar Rate Loans shall be made instead as Base Rate Loans (on which
interest and principal shall be payable contemporaneously with the related
Eurodollar Rate Loans of the other Lenders), and (B) after each of such Lender's
Eurodollar Rate Loans has been repaid, all payments of principal which would
otherwise be applied to Eurodollar Rate Loans shall be applied to repay such
Lender's Base Rate Loans instead.
(c) If any Lender makes a claim for compensation or other payment
under Section 3.1 or Section 3.4 or if any Lender determines that it is unlawful
or impermissible for it to make,
28
maintain or fund Eurodollar Rate Loans or Money Market LIBOR Loans pursuant to
Section 3.2, the 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 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 the Borrower of its obligations under such Sections.
ARTICLE IV
CONDITIONS
Section 4.1 Effectiveness. This Agreement shall become effective on the
date that each of the following conditions shall have been satisfied:
(a) Receipt by the Administrative Agent of the following, each of
which shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
Borrower, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in
number for distribution to the Administrative Agent, each Lender and
the Borrower;
(ii) a Note executed by the 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 the 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 the Borrower is duly
organized or formed, and that the Borrower is validly existing, in good
standing and qualified to engage in business in Puerto Rico and each
other jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification,
except to the extent that failure to do so could not reasonably be
expected to cause a materially adverse change in the business,
financial position, results of operations or prospects of the Borrower;
(v) a favorable opinion of the General Counsel of the
Borrower, addressed to the Administrative Agent and each Lender, as to
the matters and in the form set forth in Exhibit H;
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(vi) a favorable opinion of Pietrantoni Mendez &
Alvarez LLP, counsel to the Administrative Agent, addressed to the
Administrative Agent and each Lender, as to the matters and in the
form set forth in Exhibit I;
(vii) a favorable opinion of Morrison & Foerster LLP, counsel
to the Administrative Agent, addressed to the Administrative Agent and
each Lender, as to the matters and in the form set forth in Exhibit J;
(viii) such other assurances, certificates, documents or
consents as the Administrative Agent or the Required Lenders reasonably
may require.
(b) Any fees required to be paid on or before the Closing Date shall
have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall
have paid all Attorney Costs of the Administrative Agent to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of Attorney Costs
as shall constitute its reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent).
Section 4.2 Conditions to all Loans. The obligation of each Lender to
honor any Request for Loans (other than a Committed Loan Notice requesting only
a conversion of Committed Loans to the other Type, or a continuation of
Eurodollar Rate Loans) is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower contained in
Article V (except for the representations and warranties set forth in Section
5.4(b), the accuracy of which it is expressly agreed shall not be a condition to
making Loans) shall be true and correct on and as of the date of such Loan,
except (A) to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct as of
such earlier date, and (B) except that for purposes of this Section 4.2, the
representations and warranties contained in Section 5.4(a) shall be deemed to
refer to the most recent statements furnished from time to time pursuant to
Section 6.1(a).
(b) No Default shall exist, or would result from such proposed Loan.
(c) The Administrative Agent shall have received a Request for Loans
in accordance with the requirements hereof.
Each Request for Loans (other than a Committed Loan Notice requesting
only a conversion of Committed Loans to the other Type or a continuation of
Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.2(a) and
(b) have been satisfied on and as of the date of the applicable Loans.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
Section 5.1 Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
Laws of Puerto Rico, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted. The Borrower is in compliance with all Laws except
(i) where failure to be so could not reasonably be expected to cause a material
adverse change in the business, financial position, results of operations or
prospects of the Borrower and its Consolidated Subsidiaries considered as a
whole or (ii) such requirement of Law or order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted.
Section 5.2 Corporate and Governmental Authorization: No Contravention.
The execution, delivery and performance by the Borrower of this Agreement and
each other Loan Document are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any Governmental Authority and do not contravene, or
constitute a default under, any provision of applicable Law or of the
Organization Documents of the Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower.
Section 5.3 Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and each other Loan Document, when executed
and delivered in accordance with this Agreement, will constitute a valid and
binding obligation of the Borrower, in each case enforceable in accordance with
its terms.
Section 5.4 Financial Information.
(a) The Audited Financial Statements (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) for the fiscal year ending March 31,
2003 the consolidated financial position of Holdings and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such fiscal year or (B) for any other fiscal year, the financial
position of the Borrower and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and cash flows for such fiscal year.
(b) Since the date of the Audited Financial Statements, there has
been no material adverse change in the business, financial position, results of
operations or prospects of the 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 the Borrower threatened against or affecting,
the Borrower or any of its Subsidiaries before any court, arbiter, or
Governmental Authority in which there is a reasonable
31
possibility of an adverse decision which could materially adversely affect the
business, consolidated financial position or consolidated results of operations
of the Borrower and its Consolidated Subsidiaries, considered as a whole or
which in any manner draws into question the validity of this Agreement or any
Loan Document.
Section 5.6 Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA, the
Internal Revenue Code and the Puerto Rico Code with respect to each Plan. No
member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code in respect of any Plan,
(ii) failed to make any contribution or payment to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan
or Benefit Arrangement, which has resulted or could result in the imposition of
a lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
Section 5.7 Environmental Matters. In the ordinary course of its
business, the Borrower conducts a review of the effect of Environmental Laws on
the business, operations and properties of the Borrower and its Subsidiaries. On
the basis of this review, the Borrower has reasonably concluded that the costs
of compliance with Environmental Laws, including associated liabilities, are
unlikely to have a material adverse effect on the business, financial condition,
results of operations or prospects of the Borrower and its Consolidated
Subsidiaries, considered as a whole.
Section 5.8 Taxes. The Borrower and its Subsidiaries have filed all
income tax returns required to be filed under the Code and the Puerto Rico Code
and all other material tax returns which are required to be filed by it and has
paid all taxes, assessments, fees and other governmental charges due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary. The charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
Section 5.9 Subsidiaries. As of March 31, 2003, the Borrower was a
Consolidated Subsidiary of Holdings. As of April 1, 2003, Holdings made a
capital contribution to the Borrower composed of all of Holdings' operating
assets. As of the Closing Date, the Borrower does not have any Subsidiaries, but
any Subsidiary that the Borrower may have is a Person duly organized, validly
existing and in good standing under the Laws of its jurisdiction of
incorporation, and has all organizational powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as initially conducted or intended to be conducted.
Section 5.10 Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 5.11 Disclosure. All information heretofore furnished by the
Borrower to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any
32
transaction contemplated hereby is, and all such information hereafter furnished
by the Borrower to the Administrative Agent or any Lender will be, true,
accurate and complete in all material respects on the date as of which such
information is stated or certified.
Section 5.12 Tax Shelter Regulations. If the Borrower determines that
the Loans qualify as a "reportable transaction" (within the meaning of Treasury
Regulation Section 1.6011-4), it shall promptly notify the Administrative Agent
thereof. If the Borrower so notifies the Administrative Agent, the Borrower
acknowledges that one or more of the Lenders may treat its Loans as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1, and such
Lender or Lenders, as applicable, will maintain the lists and other records
required by such Treasury Regulation.
ARTICLE VI
COVENANTS
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any Loan or any Obligation hereunder shall remain unpaid or
unsatisfied:
Section 6.1 Information. The Borrower will deliver to the
Administrative Agent and each of the Lenders:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by independent public accountants of
nationally recognized standing;
(b) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the 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 the 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 the Borrower's fiscal year;
(c) simultaneously with the delivery of each set of financial
statements referred to in subsection (a) above, a Compliance Certificate;
(d) within 5 days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a certificate of
the chief financial officer or the chief accounting officer of the Borrower
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(e) within 15 days after any officer of the 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
33
time, a certificate of the chief financial officer or the chief accounting
officer of the Borrower setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto; and
(f) from time to time such additional information regarding the
financial position or business of the Borrower as the Administrative Agent, at
the request of any Lender, may reasonably request.
Documents required to be delivered pursuant to Section 6.1(a) or (b)
may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower's website on the Internet at the website
address listed on Schedule 9.2; or (ii) on which such documents are posted on
the Borrower's behalf on IntraLinks/IntraAgency or another relevant website, if
any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (i) the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the Borrower
to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify (which may be by facsimile or electronic mail) the Administrative
Agent, which shall notify the Lenders, of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. The Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
Section 6.2 Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each Significant
Subsidiary to keep, all material property useful and necessary in its business
in good working order and condition, ordinary wear and tear excepted.
(b) The 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 the Borrower or such
Significant Subsidiary, and the 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. The
Borrower will continue, and will cause each Significant Subsidiary to continue,
to engage in business of the same general type as conducted by the Borrower on
the Closing Date, and will preserve, renew and keep in full force and effect,
and will cause each Significant Subsidiary to preserve, renew and keep in full
force and effect their respective, corporate existence and their respective
rights, privileges and franchises necessary or desirable in the normal conduct
of business; provided that nothing in this Section 6.3 shall prohibit (i) any
merger or consolidation involving the Borrower
34
which is permitted by Section 6.6, (ii) the merger of a Significant Subsidiary
into the 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 shall have occurred and be continuing, or (iii) the
termination of the corporate existence of any Significant Subsidiary if the
Borrower in good faith determines that such termination is in the best interest
of the Borrower and is not materially disadvantageous to the Lenders..
Section 6.4 Compliance with Laws. The 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. The Borrower will not pledge or otherwise
subject to any lien any property or assets of the Borrower unless the Loans and
the Obligations of the 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 5% of Consolidated Net Tangible Assets (as
defined below) of the Borrower and its Consolidated Subsidiaries and also will
not apply to:
(a) the pledge of any assets of the Borrower to secure any financing
by the Borrower of the exporting of goods to or between, or the marketing
thereof in, jurisdictions other than the United States and Puerto Rico in
connection with which the 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 the Borrower payable in currencies
other than United States dollars to secure borrowings in jurisdictions other
than the United States and Puerto Rico;
(c) any deposit of assets of the Borrower with any surety company or
clerk of any court, or in escrow, as collateral in connection with, or in lieu
of, any bond on appeal by the Borrower from any judgment or decree against it,
or in connection with other proceedings in actions at law or in equity by or
against the Borrower or in favor of any Governmental Authority to secure
progress, advance or other payments in the ordinary course of the Borrower's
business;
(d) any lien or charge on any property of the Borrower, tangible or
intangible, real or personal, existing at the time of acquisition or
construction of such property (including acquisition through merger or
consolidation) or given to secure the payment of all or any part of the purchase
or construction price thereof or to secure any indebtedness incurred prior to,
at the time of, or within one year after, the acquisition or completion of
construction thereof for the purpose of financing all or any part of the
purchase or construction price thereof;
35
(e) any lien in favor of the United States, any State thereof, the
District of Columbia, or Puerto Rico or any agency, department or other
instrumentality thereof, to secure progress, advance or other payments pursuant
to any contract or provision of any statute;
(f) any lien securing the performance of any contract or undertaking
not directly or indirectly in connection with the borrowing of money, obtaining
of advances or credit or the securing of debt, if made and continuing in the
ordinary course of business;
(g) any lien to secure nonrecourse obligations in connection with
the Borrower's engaging in leveraged or single-investor lease transactions; and
(h) 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 (g), 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).
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles of the Borrower and its Consolidated Subsidiaries all as set forth
on the most recent balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP.
Section 6.6 Consolidations. Mergers and Sales of Assets. (a) The
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 the
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 the Borrower shall be a Person organized and existing
under the Laws of the United States of America, any State thereof, the
District of Columbia or Puerto Rico (the "Successor Corporation") and
shall expressly assume, by an amendment or supplement to this
Agreement, signed by the Borrower and such Successor Corporation and
delivered to the Administrative Agent, the Borrower's obligation with
respect to the due and punctual payment of the principal of and
interest on all the Loans and the due and punctual payment of all other
Obligations payable by the Borrower hereunder and the performance or
observance of every covenant herein on the part of the Borrower to be
performed or observed;
(ii) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Borrower
as a result of such transaction as having been incurred by the Borrower
at the time of such transaction, no Default shall have happened and be
continuing;
36
(iii) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the
Borrower would become subject to a mortgage, pledge, lien, security
interest or other encumbrance which would not be permitted by Section
6.5 hereof, the 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 the Borrower under this Agreement equally
and ratably with (or prior to) all indebtedness secured thereby; and
(iv) the Borrower has delivered to the Administrative Agent a
certificate signed by an executive officer and a written opinion or
opinions of counsel satisfactory to the Administrative Agent (who may
be counsel to the Borrower), each stating that such amendment or
supplement to this Agreement complies with this Section 6.6 and that
all conditions precedent herein provided for relating to such
transaction have been complied with.
(b) Upon any consolidation or merger or any conveyance, transfer or
lease of all or substantially all of the properties and assets of the 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, the Borrower
under this Agreement and the Loans with the same effect as if the Successor
Corporation had been named as the Borrower therein and herein, and thereafter,
the Borrower, except in the case of a lease of the 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 the Borrower for its general corporate purposes
including, without limitation, the refunding of its maturing commercial paper.
None of such proceeds will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate of buying or carrying any "margin
stock" within the meaning of Regulation U. During the Availability Period,
subject to the other terms and conditions of this Agreement, the Borrower may
request and use the proceeds of Loans of one Type to repay outstanding Loans of
another Type.
Section 6.8 Credit Support Agreement. The Borrower agrees to cause (i)
Toyota Financial Services Corporation and/or any other Affiliate of the Borrower
at all times to maintain in effect for short term and long term indebtedness, if
any, of the Borrower that is rated by any Rating Agency support agreements that
are in form and substance satisfactory to the Rating Agency providing such
rating and (ii) the Borrower's short-term Debt Ratings from S&P and Moody's to
be not less than A-2 and P-2, respectively.
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:
37
(a) the Borrower shall fail to pay when due any principal of any
Loan 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 hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Section 6.5, Section 6.6 or Section 6.7;
(c) the 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 the Borrower by
the Administrative Agent at the request of any Lender;
(d) any representation, warranty, certification or statement made by
the 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 the Borrower or any of its
Subsidiaries in an aggregate amount in excess of $10,000,000 shall not be paid
when due or shall be accelerated prior to its stated maturity date and, within
10 days after written notice thereof is given to the Borrower by the
Administrative Agent, such indebtedness shall not be discharged or such
acceleration shall not be rescinded or annulled;
(f) the Borrower or any Significant Subsidiary 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;
(g) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $25,000,000;
38
(h) judgments or orders for the payment of money in excess of
$10,000,000 in the aggregate shall be rendered against the Borrower or any
Significant Subsidiary and such judgments or orders shall continue unsatisfied
and unstayed for a period of 30 days; or
(i) the 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 Required Lenders and after notice to the
Borrower (i) terminate the commitment of each Lender to make Loans, and they
shall thereupon terminate, and (ii) declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and all other
amounts owing or payable hereunder or under any other Loan Document to be
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Borrower; provided,
however, that upon the occurrence of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Code of the United
States, the obligation of each Lender to make Loans shall automatically
terminate, the unpaid principal amount of all outstanding Loans 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
shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations 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 constituting
fees, indemnities and other amounts (other than principal and interest) payable
to the 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 constituting
accrued and unpaid interest on the Loans, ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans, ratably among the 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 have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
39
Section 8.1 Appointment and Authorization of Administrative Agent. Each
Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
Section 8.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
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 the 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 the 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 the Borrower or any Affiliate thereof.
Section 8.4 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail
40
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 Borrower), 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 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 Required Lenders (or such greater
number of Lenders as may be expressly required hereby in any instance) and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.1, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
Section 8.5 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Administrative Agent for the account of the Lenders, unless
the Administrative Agent shall have received written notice from a Lender or the
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 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 the 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 the Borrower and
its Subsidiaries, 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 the Borrower hereunder. Each Lender also
acknowledges that it will,
41
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 the 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 the 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 Borrower and without limiting the obligation of the Borrower
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person's own gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. 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 Borrower. The undertaking in this Section shall survive
termination of the Aggregate Commitments, the payment of all other Obligations
and the resignation of the Administrative Agent.
Section 8.8 Administrative Agent in its Individual Capacity. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Borrower and its Affiliates as though Bank of America were not
the Administrative Agent hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding the Borrower or any
of its Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or such Affiliate) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the same rights and
powers under this Agreement as any other Lender and may exercise such rights and
powers as though it were not the Administrative Agent, and the terms "Lender"
and "Lenders" include Bank of America in its individual capacity.
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Section 8.9 Successor Administrative Agent. The Administrative
Agent may resign as Administrative Agent upon 30 days' notice to the Lenders. If
the Administrative Agent resigns under this Agreement, the Required Lenders
shall appoint from among the Lenders a successor administrative agent for the
Lenders, which successor administrative agent shall be consented to by the
Borrower in writing at all times other than during the existence of an Event of
Default (which consent of the Borrower shall not be unreasonably withheld). If
no successor administrative agent is so appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrower, a successor
administrative agent from among the Lenders. Upon the acceptance of its
appointment as successor administrative agent hereunder, the Person acting as
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent, and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article VIII and Sections 9.4 and
9.5 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
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 the 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 the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans and all other Obligations
that are owing 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
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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.
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 the
Borrower therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower, and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 4.1(a) without the
written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 7.1) without the written consent
of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Lenders (or any of them) hereunder or under any other Loan Document without
the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified
herein on, any Loan, or any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the
44
Required Lenders shall be necessary to amend the definition of "Default Rate" or
to waive any obligation of the 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 Lender;
(f) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender;
;provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; and (ii) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, any
amendment or waiver of any term of any Money Market Loan (except the increase in
the principal amount thereof or the extension of any Interest Period until after
the Revolving Maturity Date) made by a Lender hereunder shall be effective if
signed by such Lender and the Borrower and acknowledged by the Administrative
Agent and (ii) no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
Section 9.2 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Borrower or the Administrative Agent, to the
address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 9.2 or to such other address,
facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower and the
Administrative Agent.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail
45
(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
Borrower, the Administrative Agent and the Lenders. The Borrower may also
require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 6.1, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices) purportedly given by or on behalf
of a Responsible Officer of the Borrower or any other Person designated in
writing by a Responsible Officer to the Administrative Agent even if (i) such
notices were not otherwise made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower 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 the Borrower or any other Person designated in writing by
a Responsible Officer to the Administrative Agent. All telephonic notices to and
other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
Section 9.3 No Waiver; Cumulative Remedies. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by Law.
Section 9.4 Attorney Costs, Expenses and Taxes. The Borrower
agrees (a) to pay or reimburse the Administrative Agent for all costs and
expenses incurred in connection with the development, preparation, negotiation
and execution of this Agreement and the other Loan Documents and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby,
46
including all Attorney Costs, and (b) to pay or reimburse the Administrative
Agent and each Lender for all costs and expenses incurred in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or the other Loan Documents (including all such costs and
expenses incurred during any "workout" or restructuring in respect of the
Obligations and during any legal proceeding, including any proceeding under any
Debtor Relief Law), including all Attorney Costs. The foregoing costs and
expenses shall include all search and filing charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the Administrative Agent
and the cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender. All amounts due under this
Section 9.4 shall be payable within ten Business Days after delivery to the
Borrower of a certificate setting forth in reasonable detail the basis for the
amounts demanded. The agreements in this Section shall survive the termination
of the Aggregate Commitments and repayment of all other Obligations.
Section 9.5 Indemnification by the Borrower. Whether or not the
transactions contemplated hereby are consummated, the Borrower shall indemnify
and hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses and disbursements (including Attorney Costs)
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against any such Indemnitee in any way relating to or arising out
of or in connection with (a) the execution, delivery, enforcement, performance
or administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby or
the consummation of the transactions contemplated thereby, (b) any Commitment,
Loan or the use or proposed use of the proceeds therefrom, or (c) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for
any indirect or consequential damages relating to this Agreement or any other
Loan Document or arising out of its activities in connection herewith or
therewith (whether before or after the Closing Date). All amounts due under this
Section 9.5 shall be payable within 10 Business Days after the Borrower receives
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 Borrower 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
47
more than one separate firm or internal legal department (in addition to any
local counsel) for all Indemnitees, such firm or internal legal department to be
selected by the Administrative Agent; provided that if an Indemnitee shall have
reasonably concluded that (i) there may be legal defenses available to it which
are different from or additional to those available to other Indemnitees and may
conflict therewith or (ii) the representation of such Indemnitee and the other
Indemnitees by the same counsel would otherwise be inappropriate under
applicable principles of professional responsibility, such Indemnitee shall have
the right to select and retain separate counsel to represent such Indemnitee in
connection with such proceeding(s) at the expense of the Borrower.
Section 9.6 Payments Set Aside. To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises any right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
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 the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Committed Loans at the
time owing to it); provided that (i) except in the case of an assignment of the
entire remaining amount of the assigning Lender's Commitment and the Committed
Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund (as defined in subsection (f) of this
Section) with
48
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Committed Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if "Trade Date"
is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $10,000,000 unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); (ii)
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this Agreement with
respect to the Committed Loans or the Commitment assigned; (iii) any assignment
of a Commitment must be approved by the Administrative Agent (which approval
shall not be unreasonably withheld or delayed) unless the Person that is the
proposed assignee is itself a Lender or an Affiliate of a Lender (whether or not
the proposed assignee would otherwise qualify as an Eligible Assignee); and (iv)
the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500. Subject to acceptance and recording thereof by the Administrative
Agent pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.1, 3.4, 3.5, 9.4 and 9.5 with
respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the 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
Borrower and the Administrative Agent in accordance with Section 9.15.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans owing to each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
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, the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the
49
Borrower or any of the Borrower's Affiliates or Subsidiaries) (each, a
"Participant") in all or a portion of such Lender's rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the
Loans owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, 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 Borrower agrees 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 Borrower's prior written consent. A Participant shall not be entitled
to the benefits of Section 3.1 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 9.15 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its
Note, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent and (ii) unless an
Event of Default has occurred and is continuing, the Borrower (each
such approval not to be unreasonably withheld or delayed); provided
that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or
Subsidiaries.
"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.
50
"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.
(h)
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; (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 securitization or credit derivative transaction relating to
obligations of the Borrower; (g) with the consent of the 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 the 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 the Borrower relating to the 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 the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
in writing at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Notwithstanding anything herein to the contrary, "Information" shall not
include, and any party to this Agreement may disclose without limitation of any
kind, any information with respect to the "tax treatment" and "tax structure"
(in each case, within the meaning of Treasury Regulation Section 1.6011-4) that
are provided to any such party relating to such tax treatment and tax structure;
provided that with respect to any document or similar item that in either case
contains information concerning the tax treatment or tax structure of the
transaction as well as other information, this sentence shall only apply to such
portions of the document or
51
similar item that relate to the tax treatment or tax structure of the Loans and
transactions contemplated hereby.
Section 9.9 Set-off. Upon the occurrence and during the
continuance of any Event of Default, 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 to such Lender hereunder or under any other Loan Document, now or
hereafter existing. Each Lender agrees promptly to notify the 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 Borrower.
Section 9.11 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 9.12 Integration. This Agreement, together with the other
Loan Documents, comprises the complete and integrated agreement of the parties
on the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter. In the event of any conflict between
the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
Section 9.13 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or 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
52
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) As of the date that each Lender becomes a Lender under this
Agreement, each such Lender represents and warrants to the Administrative Agent
and the Borrower that it is an Exempt Lender and agrees that, if Puerto Rico or
United States taxing authorities at any time after the date of this Agreement
require that such Lender deliver any certificate, statement or form as a
condition to exemption from, or reduction of, withholding taxes under the Puerto
Rico Code or the Code on any payments by the Borrower to such Lender under this
Agreement, such Lender shall deliver such certificate, statement or form to the
Administrative Agent prior to becoming a party to this Agreement (or upon
accepting an assignment of an interest herein). Thereafter and from time to
time, each such Lender shall (A) promptly submit to the Administrative Agent
such duly completed and signed certificates, statements or forms as shall be
adopted from time to time by the relevant Puerto Rico or United States taxing
authorities and such other evidence as is satisfactory to the Borrower and the
Administrative Agent of any available exemption from, or reduction of, Puerto
Rico and United States withholding taxes in respect of all payments to be made
to such Lender by the Borrower 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 the
Borrower make any deduction or withholding for taxes from amounts payable to
such Lender.
(ii) Each Lender, to the extent it does not act or ceases to
act for its own account with respect to any portion of any sums paid or
payable to such Lender under any of the Loan Documents (for example, in
the case of a typical participation by such Lender), shall deliver to
the Administrative Agent on the date when such Lender ceases to act for
its own account with respect to any portion of any such sums paid or
payable, and at such other times as may be necessary in the
determination of the Administrative Agent (in the reasonable exercise
of its discretion), (A) two duly signed completed copies of the
certificates, statements or forms required to be provided by such
Lender as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Lender acts for its own
account that is not 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 Puerto Rico Code or the Code,
to establish that such Lender is not acting for its own account with
respect to a portion of any such sums payable to such Lender.
53
(iii) The Borrower shall not be required to pay any additional
amount to any Lender under Section 3.1 (A) with respect to any Taxes
required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits pursuant
to this Section 9.15(a) or (B) if such Lender shall have failed to
satisfy the foregoing provisions of this Section 9.15(a); provided that
if such Lender shall have satisfied the requirement of this Section
9.15(a) on the date such Lender became a Lender or ceased to act for
its own account with respect to any payment under any of the Loan
Documents, nothing in this Section 9.15(a) shall relieve the 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.
(iv) 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 the Borrower is not
required to pay additional amounts under this Section 9.15(a).
(b) 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 the Borrower shall have the right to replace a
Lender as a party to this Agreement, the Borrower may, upon notice to such
Lender and the Administrative Agent, replace such Lender by causing such Lender
to assign its Commitment (with the assignment fee to be paid by the Borrower in
such instance) pursuant to Section 9.7(b) to one or more other Lenders or
Eligible Assignees procured by the Borrower; provided, however, that if the
Borrower elects to exercise such rights with respect to any Lender pursuant to
Section 3.6(c), it shall be obligated to replace all Lenders that have made
similar requests for compensation pursuant to Section 3.1 or 3.4. The Borrower
shall (y) pay in full all principal, interest, fees and other amounts owing to
such Lender through the date of replacement (including any amounts payable
pursuant to Section 3.5) and (z) release such Lender from its obligations under
the Loan Documents. Any Lender being replaced shall execute and deliver an
Assignment and Assumption with respect to such Lender's Commitment and
outstanding Loans.
Section 9.17 Governing Law.
54
(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, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. THE 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. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
Section 9.18 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
55
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
TOYOTA CREDIT DE PUERTO RICO CORP.
By: /s/ George Borst
-------------------------------------------
Name: George Borst
-----------------------------------------
Title: President and Chief Executive Officer
----------------------------------------
S-1
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Anthea Del Bianco
--------------------------------------
Name: Anthea Del Bianco
-----------------------------------
Title: Vice President
-----------------------------------
S-2
BANK OF AMERICA, N.A., as a
Lender
By: /s/ Alan Roche
---------------------------------------
Name: Alan Roche
-------------------------------------
Title: Managing Director
------------------------------------
S-3
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as Documentation Agent and a Lender
By: /s/ Hiroshi Jinza
---------------------------------------
Name: Hiroshi Jinza
-------------------------------------
Title: Deputy General Manager
------------------------------------
S-4
CITICORP USA, INC., as
Documentation Agent and a Lender
By: /s/ Brian Ike
------------------------------------------
Name: Brian Ike
----------------------------------------
Title: Vice President
---------------------------------------
S-5
JPMORGAN CHASE BANK, as
Syndication Agent and a Lender
By: /s/ James W. Peterson
------------------------------------
Name: James W. Peterson
----------------------------------
Title: Vice President
---------------------------------
S-6
DEUTSCHE BANK AG NEW YORK
BRANCH, as a Lender
By:/s/ Oliver Schwarz
-------------------------------------
Name: Oliver Schwarz
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ Hans-Joseph Thiele
-------------------------------------
Name: Hans-Joseph Thiele
-----------------------------------
Title: Director
----------------------------------
S-7
HSBC BANK USA, as a Lender
By: /s/ Christopher Samms
----------------------------------------
Name: Christopher Samms
--------------------------------------
Title: First Vice President, Officer # 9426
-------------------------------------
S-8
MERRILL LYNCH BANK USA, as a Lender
By:/s/ Frank K. Stepan
-------------------------------------
Name: Frank K. Stepan
-----------------------------------
Title: Vice President
----------------------------------
S-9
MORGAN STANLEY BANK, as a Lender
By: /s/ Jaap L. Tonckens
-------------------------------------
Name: Jaap L. Tonckens
-----------------------------------
Title: Vice President
----------------------------------
S-10
SUMITOMO MITSUI BANKING
CORPORATION, LOS ANGELES BRANCH,
as a Lender
By: /s/ Yoshimi Miura
-------------------------------------
Name: Yoshimi Miura
-----------------------------------
Title: General Manager
----------------------------------
S-11
UFJ BANK LIMITED, LOS ANGELES
BRANCH, as a Lender
By: /s/ Hideki Kishimoto
-------------------------------------
Name: Hideki Kishimoto
--------------------------------
Title: SVP & Deputy General Manager
-------------------------------
S-12
ABN AMRO BANK N.V., as a Lender
By: /s/ Angela Noique
-------------------------------------
Name: Angela Noique
-----------------------------------
Title: Group Vice President
----------------------------------
By: /s/ John M. Pastore
-------------------------------------
Name: John M. Pastore
-----------------------------------
Title: Vice President
----------------------------------
S-13
BANK ONE N.A., as a Lender
By: /s/ Tohru Yasumaru
-------------------------------------
Name: Tohru Yasumaru
-----------------------------------
Title: Director
----------------------------------
S-14
BARCLAYS BANK PLC, as a Lender
By: /s/ Alison McGuigan
-------------------------------------
Name: Alison McGuigan
-----------------------------------
Title: Associate Director
----------------------------------
S-15
BNP PARIBAS, as a Lender
By: /s/ Pierre Nicholas Rogers
-------------------------------------
Name: Pierre Nicholas Rogers
-----------------------------------
Title: Managing Director
----------------------------------
By: /s/ Katherine Wolfe
-------------------------------------
Name: Katherine Wolfe
-----------------------------------
Title: Director
----------------------------------
S-16
CREDIT SUISSE FIRST BOSTON, CAYMAN
ISLANDS BRANCH, as a Lender
By: /s/ Mark E. Gleason
-------------------------------------
Name: Mark E. Gleason
-----------------------------------
Title: Director
----------------------------------
By: /s/ Joshua Parrish
-------------------------------------
Name: Joshua Parrish
-----------------------------------
Title: Associate
----------------------------------
S-17
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: /s/ J. Curtin Beaudouin
------------------------------------
Name: J. Curtin Beaudouin
------------------------------------
Title: Director
------------------------------------
By: /s/ Stephen Kovach
------------------------------------
Name: Stephen Kovach
------------------------------------
Title: Vice President
------------------------------------
S-18
ING LUXEMBOURG SA, as a Lender
By: /s/ Vincent Vermeire
------------------------------------
Name: Vincent Vermeire
-----------------------------------
Title: Senior Manager/ Corporate and
Institutional Banking
---------------------------------
By: /s/ Yves Verhulst
------------------------------------
Name: Yves Verhulst
-----------------------------------
Title: Manager/ Corporate and
Institutional Banking
----------------------------------
S-19
LEHMAN BROTHERS BANK, FSB, as a Lender
By: /s/ Gary T. Taylor
------------------------------------
Name: Gary T. Taylor
-----------------------------------
Title: Vice President
----------------------------------
S-20
UBS AG, CAYMAN ISLANDS BRANCH, as a Lender
By: /s/ Patricia O'Kicki
---------------------------------------
Name: Patricia O'Kicki
-------------------------------------
Title: Director
------------------------------------
By: /s/ Wilfred V. Saint
---------------------------------------
Name: Wilfred V. Saint
-------------------------------------
Title: Associate Director
------------------------------------
S-21
MIZUHO CORPORATE BANK, LTD., as a Lender
By: /s/ Shinji Yamada
------------------------------------
Name: Shinji Yamada
-----------------------------------
Title: Joint General Manager
----------------------------------
S-22
PNC BANK, NA, as a Lender
By: /s/ Dorothy G.W. Brailer
------------------------------------
Name: Dorothy G.W. Brailer
-----------------------------------
Title: Vice President
----------------------------------
S-23
THE BANK OF NEW YORK, as a Lender
By: /s/ Mehrasa Raygani
------------------------------------
Name: Mehrasa Raygani
-----------------------------------
Title: Vice President
----------------------------------
S-24
MELLON BANK, N.A., as a Lender
By: /s/ Lawrence C. Ivey
------------------------------------
Name: Lawrence C. Ivey
-----------------------------------
Title: First Vice President
----------------------------------
S-25
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
- ------------------------------------------------------ ------------------------------------ --------------------------
Bank of America, N.A. $29,444,444.42 7.361111%
The Bank of Tokyo-Mitsubishi, Ltd. $27,777,777.78 6.944444%
Citicorp USA, Inc. $27,777,777.78 6.944444%
JPMorgan Chase Bank $27,777,777.78 6.944444%
Deutsche Bank AG New York Branch $19,444,444.44 4.861111%
HSBC Bank USA $19,444,444.44 4.861111%
Merrill Lynch Bank USA $19,444,444.44 4.861111%
Morgan Stanley Bank $19,444,444.44 4.861111%
Sumitomo Mitsui Banking Corporation, Los Angeles $19,444,444.44 4.861111%
Branch
UFJ Bank Limited, Los Angeles Branch $19,444,444.44 4.861111%
ABN Amro Bank N.V. $15,555,555.56 3.888889%
Bank One N.A. $15,555,555.56 3.888889%
Barclays Bank PLC $15,555,555.56 3.888889%
BNP Paribas $15,555,555.56 3.888889%
Credit Suisse First Boston, Cayman Islands Branch $15,555,555.56 3.888889%
Dresdner Bank AG New York and Grand Cayman Branches $15,555,555.56 3.888889%
ING Luxembourg SA $15,555,555.56 3.888889%
Lehman Brothers Bank, FSB $15,555,555.56 3.888889%
UBS AG, Cayman Islands Branch $15,555,555.56 3.888889%
Mizuho Corporate Bank, Ltd. $11,111,111.11 2.777778%
PNC Bank, NA $8,333,333,.33 2.083333%
The Bank of New York $5,555,555.56 1.388889%
Mellon Bank, N.A. $5,555,555.56 1.388889%
Total $400,000,000.00 100.000000%
1
SCHEDULE 9.2
ADMINISTRATIVE AGENT'S OFFICE,
CERTAIN ADDRESSES FOR NOTICES
BORROWER:
TOYOTA CREDIT DE PUERTO RICO CORP.
Borrower's Address
- ------------------
(for all purposes)
Toyota Credit de Puerto Rico Corp.
c/o Toyota Motor Credit Corporation
Attn: Treasury
19001 South Western Avenue
P.O. Box 2991
Mail Stop NF-10
Torrance, Ca. 90509
Attention: Jeff Carter, National Treasury Manager
Telephone: (310) 468-6197
Facsimile: (310) 381-6655
(With a copy to):
Toyota Motor Credit Corporation
19001 South Western Avenue
P.O. Box 2991
Mail Stop NF-10
Torrance, Ca. 90509
Attention: Janet Rydell, Cash Manager
Telephone: (310) 468-6176
Facsimile: (310) 381-5219
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.
Administrative Agent's Office
- -----------------------------
(for Notices of Payments and Requests for Loans):
Bank of America, N.A.
1850 Gateway Blvd., 5th Floor
Concord, CA 94520
Mail Code: CA4-706-05-09
Attention: Kristine Kelleher
Telephone: (925) 675-8373
Facsimile: (800) 969-2414
1
(for Payments):
Bank of America, N.A.
Dallas, TX
Account No.: 3750836479
Ref: Toyota Credit de Puerto Rico Corp.
ABA# 111000012
(Other Notices as Administrative Agent):
Bank of America, N.A.
Japan-Financial Institutions
Mail Code: 771-623-15-01
Sanno Park Tower 15F
2-11-1 Nagatacho, Chiyoda-Ku
Tokyo 100-6115
Japan
Attention: Mashiko Ando
Telephone: 81-3-3508-5907
Facsimile: 81-3-3508-5922
Electronic Mail: masahiko.ando@bankofamerica.com
(With a Copy to):
Bank of America, N.A.
Agency Management
Mail Code: CA5-701-05-19
1455 Market Street
San Francisco, CA 94103-1399
Attention: Anthea Del Bianco
Telephone: (415) 436-2776
Facsimile: (415) 503-5101
Electronic Mail: anthea.del_bianco@bankofamerica.com
2
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364 Day Facility),
dated as of September 11, 2003 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Toyota Credit de
Puerto Rico Corp., a corporation organized under the laws of Puerto Rico (the
"Borrower"), the Lenders from time to time party thereto, Bank of America, N.A.,
as Administrative Agent, Banc of America Securities LLC, as Sole Lead Arranger
and Sole Book Manager, JPMorgan Chase Bank, as Syndication Agent, and The Bank
of Tokyo-Mitsubishi, Ltd. and Citibank, N.A., as Documentation Agents.
The undersigned hereby requests (select one):
[ ] A Borrowing of Committed Loans [ ] A conversion or continuation of Loans
1. On (a Business Day).
--------------------------------------------------
2. In the amount of $ .
----------------------------------
3. Comprised of .[Type of Committed Loan requested]
---------------------------------------
4. For Eurodollar Rate Loans: with an Interest Period of months.
--------
[The Committed Borrowing requested herein complies with the proviso to
the first sentence of Section 2.1 of the Agreement.]
TOYOTA CREDIT DE PUERTO RICO CORP.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
A-1
Form of Committed Loan Notice
EXHIBIT B
FORM OF NOTE
September 11, 2003
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby
promises to pay, without setoff or counterclaim, to _____________________ or
registered assigns (the "Lender"), in accordance with the provisions of the
Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to the Borrower under that certain Credit Agreement
(364 Day Facility), dated as of September 11, 2003(as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among the Borrower, the Lenders from time to time party thereto, Bank of
America, N.A., as Administrative Agent, Banc of America Securities LLC, as Sole
Lead Arranger and Sole Book Manager, JPMorgan Chase Bank, as Syndication Agent,
and The Bank of Tokyo-Mitsubishi, Ltd. and Citibank, N.A., as Documentation
Agents.
The Borrower promises to pay interest on the unpaid principal
amount of each Loan from the date of such Loan until such principal amount is
paid in full, at such interest rates and at such times as provided in the
Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent's Office. If any amount is not paid
in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.
This Note is one of the Notes referred to in the Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject
to the terms and conditions provided therein. Upon the occurrence and
continuation of one or more of the Events of Default specified in the Agreement,
all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable all as provided in the Agreement. Loans made
by the Lender shall be evidenced by one or more loan accounts or records
maintained by the Lender in the ordinary course of business. The Lender may also
attach schedules to this Note and endorse thereon the date, amount and maturity
of its Loans and payments with respect thereto.
B-1
Form of Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
TOYOTA CREDIT DE PUERTO RICO CORP.
By:
------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
B-2
Form of Note
LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF OUTSTANDING
PRINCIPAL OR PRINCIPAL
TYPE OF LOAN AMOUNT OF LOAN END OF INTEREST INTEREST PAID BALANCE THIS
DATE MADE MADE PERIOD THIS DATE DATE NOTATION MADE BY
- -------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
---------------- --------------- -------------- -------------- -------------- ------------- --------------
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B-3
Form of Note
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
As required by Section 6.1(c) of the Credit Agreement (364 Day
Facility) dated as of September 11, 2003 by and among Toyota Credit de Puerto
Rico Corp., the Lenders party thereto, Bank of America, N.A., as Administrative
Agent, Banc of America Securities LLC, as Sole Lead Arranger and Sole Book
Manager, JPMorgan Chase Bank, as Syndication Agent, and The Bank of Tokyo
Mitsubishi, Ltd. and Citibank, N.A., as Documentation Agents (the "Agreement"),
I, __________________, do hereby certify that I am the chief financial officer
of Toyota Credit de Puerto Rico Corp., a corporation organized under the laws of
Puerto Rico (the "Company"), and further certify on behalf of the Company that,
to the best of my knowledge, no Default (as defined in the Agreement) under the
Agreement exists as of the date of this Certificate.
Certified this _____ day of ______________, 200_
--------------------------------------
Name:
---------------------------------
C-1
Form of Compliance Certificate
EXHIBIT D
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below and
(ii) to the extent permitted to be assigned under applicable Law, all claims,
suits, causes of action and any other right of the Assignor (in its capacity as
a Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at Law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund of [identify Lender]1]
3. Borrower(s): Toyota Credit de Puerto Rico Corp.
4. Administrative Agent: ______________________, as the
administrative agent under the Credit
Agreement
5. Credit Agreement: Credit Agreement (364 Day Facility),
dated as of September 11, 2003 among
Toyota Credit de Puerto Rico Corp., the
Lenders parties thereto, Bank of
America, N.A., as Administrative Agent,
Banc of America Securities LLC, as Sole
Lead Arranger and Sole Book Manager,
JPMorgan Chase Bank, as Syndication
Agent, and The Bank of Tokyo-
- ------------------------------
(1) Select as applicable.
D-1
Assignment and Assumption
Mitsubishi, Ltd. and Citibank, N.A., as
Documentation Agents
6. Assigned Interest:(1)
- ------------------------------ ------------------------------- ----------------------------- --------------------------
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
Facility Assigned for all Lenders* Assigned* Commitment/Loans(2)
----------------- --------------- -------- ----------------
- ------------------------------ ------------------------------- ----------------------------- --------------------------
Commitment/Committed Loans $________________ $________________ ______________%
being assigned
- ------------------------------ ------------------------------- ----------------------------- --------------------------
[7. Trade Date: __________________](3)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
--------
[NAME OF ASSIGNOR]
By:
--------------------------------
Title:
ASSIGNEE
--------
[NAME OF ASSIGNEE]
By:
--------------------------------
Title:
- -------------------------------
* Amount to be adjusted by the counterparties to take into account any payments
or prepayments made between the Trade Date and the Effective Date.
(1) The reference to "Loans" in the table should be used only if the Credit
Agreement provides for Term Loans.
(2) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
(3) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
D-2
Assignment and Assumption
[Consented to and](1) Accepted:
[NAME OF ADMINISTRATIVE AGENT], as
Administrative Agent
By:
-------------------------------------------
Title:
[Consented to:](2)
By:
-------------------------------------------
Title:
- ------------------------------
(1) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
(2) To be added only if the consent of the Borrower and/or other parties is
required by the terms of the Credit Agreement.
D-3
Assignment and Assumption
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
(CREDIT AGREEMENT (364 DAY FACILITY) DATED AS OF SEPTEMBER 11, 2003
AMONG TOYOTA CREDIT CORPORATION, AS THE BORROWER, THE LENDERS PARTIES
THERETO, BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT, BANC OF
AMERICA SECURITIES LLC, AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER,
JPMORGAN CHASE BANK, AS SYNDICATION AGENT, AND THE BANK OF
TOKYO-MITSUBISHI, LTD. AND CITIBANK, N.A., AS DOCUMENTATION AGENTS)
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
------------------------------
1.1. Assignor. The Assignor (a) represents and warrants that (i)
it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim
created by the Assignor and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and
to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower or any of its Affiliates or any other Person obligated
in respect of any Loan Document or (iv) the performance or observance by the
Borrower, or any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i)
it has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.1 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) attached hereto is any
withholding tax documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
D-4
Assignment and Assumption
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to or on or after the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the Law
of the State of New York.
D-5
Assignment and Assumption
EXHIBIT E
FORM OF MONEY MARKET QUOTE REQUEST
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364 Day Facility),
dated as of September 11, 2003 (as amended , extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Toyota Credit de Puerto
Rico Corp. (the "Borrower"), the Lenders from time to time party thereto, Bank
of America, N.A., as Administrative Agent, Banc of America Securities LLC, as
Sole Lead Arranger and Sole Book Manager, JPMorgan Chase Bank, as Syndication
Agent, and The Bank of Tokyo-Mitsubishi, Ltd. and Citibank, N.A., as
Documentation Agents.
The undersigned hereby requests Money Market Quotes for (select one):
[ ] Money Market Absolute Rate for [ ] Money Market Margin for
Money Market Absolute Rate Loans Money Market LIBOR Loans
1. On (a Business Day).
--------------------------------------------
2. In the amount of $ .
-----------------------------
3. For an Interest Period of .
---------------------
The Money Market Loans for which Money Market Quotes are requested
herein would comply with the proviso to the first sentence of Section 2.3(a) of
the Agreement.
TOYOTA CREDIT DE PUERTO RICO CORP.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-1
Form of Money Market Quote Request
EXHIBIT F
FORM OF INVITATION FOR MONEY MARKET QUOTES
Date: ___________, _____
To: Lenders party to the Agreement (as defined below)
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364 Day Facility),
dated as of September 11, 2003 (as amended , extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Toyota Credit de Puerto
Rico Corp. (the "Borrower"), the Lenders from time to time party thereto, Bank
of America, N.A., as Administrative Agent, Banc of America Securities LLC, as
Sole Lead Arranger and Sole Book Manager, JPMorgan Chase Bank, as Syndication
Agent, and The Bank of Tokyo-Mitsubishi, Ltd. and Citibank, N.A., as
Documentation Agents.
On behalf of the Borrower, you are invited to submit Money Market
Quotes for (select one):
[ ] Money Market Absolute Rate for [ ] Money Market Margin for
Money Market Absolute Rate Loans Money Market LIBOR Loans
1. On (a Business Day).
--------------------------------------
2. In the amount of $ .
-----------------------
3. For an Interest Period of .
---------------
Please respond to this invitation by no later than [1 :00 p.m.]
[9:00 a.m.] on [date].
BANK OF AMERICA, N.A., as Administrative Agent
By:
--------------------------------------------
Authorized Officer
F-1
Form of Invitation for Money Market Quotes
EXHIBIT G
FORM OF MONEY MARKET QUOTE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364 Day Facility),
dated as of September 11, 2003 (as amended , extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Toyota Credit de Puerto
Rico Corp. (the "Borrower"), the Lenders from time to time party thereto, Bank
of America, N.A., as Administrative Agent, Banc of America Securities LLC, as
Sole Lead Arranger and Sole Book Manager, JPMorgan Chase Bank, as Syndication
Agent, and The Bank of Tokyo-Mitsubishi, Ltd. and Citibank, N.A., as
Documentation Agents.
In response to your invitation on behalf of the Borrower dated
______________, 20__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Lender: ________________________
2. Person to contact at Quoting Lender: Name: _______________
Tel: _______________
Fax: _______________
email: _______________
3. Date of Borrowing: _______________(1)
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest [Money Market
Amount(2) Period(3) Margin](4) [Absolute Rate11(5)]
$
$
- ----------------------------
(1) As specified in the related Invitation.
(2) Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offer exceeds the amount the Lender is willing to lend. Bids must be made for
$5,000,000 or larger multiple of $1,000,000.
(3) Not less than one month or not less than 14 days, as specified in the
related invitation. No more than five bids are permitted for each Interest
Period.
(4) Margin over or under the Eurodollar Rate determined for the applicable
Interest Period. Specify percentage (to the nearest 1/100,000 of 1%) and
specify whether "PLUS" or "MINUS."
(5) Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
G-1
Form of Money Market Quote
The Money Market Loans for which Money Market Quotes are submitted
herein comply with the requirements of the Agreement.
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Agreement,
irrevocably obligates us to make the Money Market Loan(s) for which any offer(s)
are accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated: By:
------------------------------ -----------------------------
Authorized Officer
G-2
Form of Money Market Quote
EXHIBIT H
FORM OF OPINION OF COUNSEL FOR THE BORROWER
To the Lenders and the Administrative Agent
Referred to Below
c/o Bank of America, N.A., as Administrative Agent
CA4-706-05-09
1850 Gateway Blvd., 5th Floor
Concord, CA 94520
Re: Credit Agreement
Ladies and Gentlemen:
I and my staff have acted as counsel for Toyota Credit de Puerto Rico
Corp. (the "Borrower") in connection with the Credit Agreement (364 Day
Facility) (the "Credit Agreement") dated as of September 11, 2003 among the
Borrower, the Lenders listed on the signature pages thereof, Bank of America,
N.A., as Administrative Agent, Banc of America Securities, LLC, as Sole Lead
Arranger and Sole Book Manager, JPMorgan Chase Bank, as Syndication Agent, and
The Bank of Tokyo-Mitsubishi, Ltd. and Citibank, N.A., as Documentation Agents.
Terms defined in the Credit Agreement are used herein as therein defined. This
opinion is being rendered to you pursuant to Section 4.1(a)(v) of the Credit
Agreement.
I am General Counsel of the Borrower and as such I, or members of my
staff, have participated in the negotiation of the Credit Agreement. I, or
members of my staff, have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and Law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing and in reliance thereon, I am of the
opinion, subject to the assumptions and limitations set forth herein, that:
1. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes do not contravene, or constitute a default under,
any debt instrument or any other material agreement, judgment, injunction,
order, decree or other instrument binding upon the Borrower. As to debt
instruments or agreements which, by their terms, are or may be governed by the
Law of a jurisdiction other than California, I have assumed that such debt
instruments and agreements are governed by the Law of California for purposes of
the opinion expressed in this paragraph.
H-1
Form of Opinion of Counsel to the Borrower
2. There is no action, suit or proceeding pending against, or to the
best of my knowledge threatened against or affecting, the Borrower before any
court or arbitrator or any Governmental Authority, in which there is a
reasonable possibility of an adverse decision which could materially adversely
affect the business, financial position or results of operations of the Borrower
or which in any manner draws into question the validity of the Credit Agreement
or the Notes.
I am a member of the Bar of the State of California and the foregoing
opinion is limited to the Laws of the State of California and the federal Laws
of the United States of America.
The references in this opinion to facts based on the "best of my
knowledge" refer only to my own actual, present knowledge and the knowledge of
the members of my staff who have given substantive consideration to the matters
referred to herein.
This opinion is furnished by me as General Counsel for the Borrower to
you in connection with the Credit Agreement, is solely for your benefit and may
not be relied upon by any other person, other than an Eligible Assignee or
Participant pursuant to Section 9.7 of the Credit Agreement, without my prior
written consent. Notwithstanding the foregoing grant of permission to Eligible
Assignees to rely on this opinion, we express no opinion with respect to the
effect of any such Eligible Assignee failing to comply with any legal
requirement in order for it to enforce the Credit Agreement. We express no
opinion as to enforceability of the Documents by a Participant.
Respectfully submitted,
Alan Cohen
General Counsel
H-2
Form of Opinion of Counsel to the Borrower
EXHIBIT I
FORM OF OPINION Of PIETRANTONI MENDEZ & ALVAREZ LLP
To the Lenders and the Administrative Agent
Referred to Below
c/o Bank of America, N.A., as Administrative Agent
CA4-706-05-09
1850 Gateway Blvd., 5th Floor
Concord, CA 94520
Re: Credit Agreement
Ladies and Gentlemen:
We have acted as special Commonwealth of Puerto Rico counsel for Bank
of America, N.A., as Administrative Agent (the "Administrative Agent"), in
connection with the Credit Agreement (364 Day Facility) (the "Credit Agreement")
dated as of September 11, 2003 among the Toyota Credit de Puerto Rico Corp., as
the Borrower (the "Borrower"), the Lenders listed on the signature pages
thereof, the Administrative Agent, Banc of America Securities, LLC, as Sole Lead
Arranger and Sole Book Manager, JPMorgan Chase Bank, as Syndication Agent, and
The Bank of Tokyo-Mitsubishi, Ltd. and Citibank, N.A., as Documentation Agents.
Terms defined in the Credit Agreement are used herein as therein defined. This
opinion is being rendered to you pursuant to Section 4.1(a)(vi) of the Credit
Agreement.
We have participated in the negotiation of the Credit Agreement and
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and Law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing and in reliance thereon, we are of the
opinion, subject to the assumptions and limitations set forth herein, that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the Laws of Puerto Rico, and has all corporate powers
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or
I-1
Form of Opinion of Pietrantoni Mendez & Alvarez LLP
filing with, any Governmental Authority and do not contravene, or constitute a
default under, any provision of applicable Law or of the articles of
incorporation or bylaws of the Borrower.
3. The Credit Agreement and the Notes are governed, by their terms,
by New York Law. We express no opinion on the enforceability of the Loan
Documents under New York Law. Assuming that the substantive Law of New York is
the same as the substantive Law of Puerto Rico, the Credit Agreement constitutes
a valid and binding agreement of the Borrower and each Note constitutes a valid
and binding obligation of the Borrower, in each case enforceable in accordance
with its terms.
The opinion set forth in paragraph 3 is subject to: (i) the effect of
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar Laws of general application relating to or affecting
the enforcement of creditors' rights generally, (ii) limitations on the remedy
of specific performance and injunctive and other forms of equitable relief due
to the possible existence of equitable defenses or due to the discretion of the
court before which any proceeding therefor may be brought, (iii) the
unenforceability under certain circumstances of provisions to the effect that
failure to exercise, or delay in exercising, rights or remedies will not operate
as a waiver of any such right or remedy, (iv) limitations based upon statutes or
upon public policy limiting a Person's right to waive the benefits of statutory
provisions or of a common law right, (v) limitations on the right of a creditor
to exercise remedies or impose penalties for late payments or other defaults by
a borrower, if it is determined that (a) either the defaults are not material,
such penalties bear no reasonable relation to the damage suffered by the
creditor as a result of such delinquencies or defaults, or it cannot be
demonstrated that the enforcement of such restrictions or burdens is reasonably
necessary for the protection of the creditor, or (b) the creditor's enforcement
of such covenants or provisions under the circumstances would violate the
creditor's implied covenant of good faith and fair dealing, (vi) the
unenforceability under certain circumstances, under the Law of Puerto Rico or
federal Law or court decisions, of provisions releasing a party from, or
indemnifying a party against, liability for its own wrongful or negligent acts
or where such release or indemnification is contrary to public policy, (vii) the
effect of the Law of Puerto Rico, which provides that a court may refuse to
enforce, or may limit the application of, a contract or any clause of a contract
which the court finds to have been unconscionable at the time it was made, or an
unfair portion of an adhesion contract, (viii) compliance with, and limitations
imposed by, procedural requirements of the Law of Puerto Rico; and (ix)
limitations under the Law of Puerto Rico as to the right to retain or collect
unearned interest. The foregoing limitations, however, do not render the Credit
Agreement and the Notes invalid as a whole, and there exists, in the Credit
Agreement and the Notes or pursuant to applicable Law, legally adequate remedies
for the realization of the principal benefits intended to be provided by the
Credit Agreement and the Notes.
We are members of the Bar of the Commonwealth of Puerto Rico and the
foregoing opinion is limited to the Laws of Puerto Rico and the federal Laws of
the United States of America. In giving the foregoing opinion, (i) we express no
opinion as to the effect (if any) of any Law of any jurisdiction (except Puerto
Rico) in which any
I-2
Form of Opinion of Pietrantoni Mendez & Alvarez LLP
Lender is located which limits the rate of interest that such Lender may charge
or collect; and (ii) we have assumed, without independent investigation, that
the execution, delivery and performance by the Lenders of the Credit Agreement
and the Notes are within the Lenders' powers and have been duly authorized by
all necessary action..
This opinion is furnished to you in connection with the Credit
Agreement, is solely for your benefit and may not be relied upon by, nor may
copies be delivered to, any other person, other than an Eligible Assignee or
Participant pursuant to Section 9.7 of the Credit Agreement, without our prior
written consent. Notwithstanding the foregoing grant of permission to Eligible
Assignees to rely on this opinion, we express no opinion with respect to the
effect of any such Eligible Assignee failing to comply with any legal
requirement in order for it to enforce the Credit Agreement.
Respectfully submitted,
I-3
Form of Opinion of Pietrantoni Mendez & Alvarez LLP
EXHIBIT J
FORM OF OPINION OF MORRISON & FOERSTER LLP
September 11, 2003
To the Lenders and the Administrative Agent
Referred to Below
c/o Bank of America, N.A., as Administrative Agent
CA4-706-05-09
1850 Gateway Blvd., 5th Floor
Concord, CA 94520
Re: Toyota Credit de Puerto Rico Corp.
Mesdames and Gentlemen:
We have acted as counsel for Bank of America, N.A. (the "Administrative
Agent") in connection with the transactions contemplated by the Credit Agreement
(364 Day Facility) dated as of September 11, 2003 (the "Credit Agreement") among
Toyota Credit de Puerto Rico Corp., as the Borrower (the "Borrower"), the
Administrative Agent, and the Lenders and other parties thereto. This opinion is
furnished to the Lenders (as such term and all other capitalized terms used but
not otherwise defined herein are defined in the Credit Agreement) pursuant to
Section 4.1(a)(vii) of the Credit Agreement.
We have examined originals or copies of the Credit Agreements and
Notes, all dated as of September 11, 2003 (collectively, the "Documents"). In
addition, we have examined such records, documents, certificates of public
officials and of the Borrower, made such inquiries of officials of the Borrower,
and considered such questions of law as we have deemed necessary for the purpose
of rendering the opinions set forth herein.
We have assumed the genuineness of all signatures and the authenticity
of all items submitted to us as originals and the conformity with originals of
all items submitted to us as copies. In making our examination of the Documents,
we have assumed that each party to one or more of the Documents is duly
organized, validly existing, and in good standing in each jurisdiction where
required by applicable law, has the power and authority to execute and deliver,
and to perform and observe the provisions of, the Documents, and has duly
authorized, executed and delivered such Documents, and, except in the case of
the Borrower, that such Documents constitute the legal, valid and binding
obligations of such party.
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Form of Opinion of Morrison & Foerster LLP
We have assumed that the Lenders are acquiring the Notes with no
present intention of distributing the same other than in compliance with the
requirements, if any, of all applicable state and federal securities laws.
The opinion hereinafter expressed is subject to the following further
qualifications and exceptions:
(1) The effect of bankruptcy, insolvency, reorganization,
arrangement, moratorium or similar laws relating to or affecting the rights of
creditors generally, including, without limitation, laws relating to preferences
and equitable subordination.
(2) Limitations imposed by general principles of equity upon the
availability of equitable remedies or the enforcement of provisions of the
Documents, and the effect of judicial decisions which have held that certain
provisions are unenforceable where their enforcement would violate the implied
covenant of good faith and fair dealing, or would be commercially unreasonable,
or where a default under the Documents is not material.
(3) The effect of statutes or judicial decisions rendering
ineffective or limiting the enforceability of certain provisions contained in
the Documents. However, in our opinion, such statutes and decisions do not
operate to prevent the Lenders from accelerating the maturity of the Borrower's
Obligations under the Documents upon a material breach by the Borrower of a
material covenant contained in the Documents.
(4) The effect of judicial decisions permitting the introduction of
extrinsic evidence to supplement the terms or aid in the interpretation of the
Documents.
(5) We express no opinion as to the effect on the opinion expressed
herein of (i) the compliance or non-compliance of any party to the Documents
with any law, regulation or order applicable to it, or (ii) the legal or
regulatory status or the nature of the business of any such party.
(6) We have assumed that no provision of the Documents violates the
Federal laws of the United States and/or the public policy of any jurisdiction
other than the State of New York having a substantial relationship to the
transaction contemplated by the Documents, and that no provision of the law of
the State of New York applicable to the Documents violates the public policy of
any such other jurisdiction.
(7) We express no opinion as to whether the provision of the Credit
Agreement under which the Borrower submits to the jurisdiction of federal courts
located in the State of New York is subject to application of the doctrine of
forum non conveniens or a similar statutory principle.
Based upon and subject to the foregoing, we are of the opinion that the
Documents constitute valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their respective terms.
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Form of Opinion of Morrison & Foerster LLP
We express no opinion as to matters governed by any laws other than the
substantive laws of the State of New York and federal laws of the United States
(without reference to any choice-of-law rules other than Section 5-1401 of the
General Obligations Law of the State of New York). We express no opinion as to
the effect on the opinions expressed herein of any laws other than the laws of
the State of New York and Federal laws of the United States.
This opinion is solely for the Lenders' benefit and may not be relied
upon by, nor may copies be delivered to, any other person, other than an
Eligible Assignee or Participant pursuant to Section 9.7 of the Credit
Agreement, without my prior written consent. Notwithstanding the foregoing grant
of permission to Eligible Assignees to rely on this opinion, I express no
opinion with respect to the effect of any such Eligible Assignee failing to
comply with any legal requirement in order for it to enforce the Credit
Agreement. I express no opinion as to enforceability of the Documents by a
Participant.
Very truly yours,
Morrison & Foerster LLP
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Form of Opinion of Morrison & Foerster LLP