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EXHIBIT 4.5
FORM OF RECEIVABLES PURCHASE AGREEMENT
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
and
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TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
as Purchaser
Dated as of o
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
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SECTION 1.1 Definitions...............................................................1
SECTION 1.2 Other Definitional Provisions.............................................2
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables.................................................2
SECTION 2.2 Representations and Warranties of the Seller and the Purchaser............3
SECTION 2.3 Representations and Warranties of the Seller as to the Receivables........6
SECTION 2.4 Covenants of the Seller..................................................10
ARTICLE III
PAYMENT OF RECEIVABLES PURCHASE PRICE
SECTION 3.1 Payment of Receivables Purchase Price....................................11
ARTICLE IV
TERMINATION
SECTION 4.1 Termination..............................................................11
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 Amendment................................................................11
SECTION 5.2 Protection of Right, Title and Interest to Receivables...................11
SECTION 5.3 Governing Law............................................................12
SECTION 5.4 Notices..................................................................12
SECTION 5.5 Severability of Provisions...............................................12
SECTION 5.6 Assignment...............................................................13
SECTION 5.7 Further Assurances.......................................................13
SECTION 5.8 No Waiver; Cumulative Remedies...........................................13
SECTION 5.9 Counterparts.............................................................13
SECTION 5.10 Third-Party Beneficiaries................................................13
SECTION 5.11 Merger and Integration...................................................13
SECTION 5.12 Headings.................................................................13
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TABLE OF CONTENTS
(CONTINUED)
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SECTION 5.13 Indemnification..........................................................13
SECTION 5.14 Merger or Consolidation of, or Assumption of the
Obligations of, the Seller.............................................14
SCHEDULE A Schedule of Receivables.................................................A-1
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RECEIVABLES PURCHASE AGREEMENT, dated as of o, between Toyota Motor Credit
Corporation, a California corporation, as seller, and Toyota Motor Credit
Receivables Corporation, a California corporation, as purchaser.
In consideration of the premises and mutual agreements herein contained,
each party agrees as follows for the benefit of the other party and for the
benefit of the Trustee:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the following
words and phrases shall have the following meanings:
"Agreement" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Closing Date" shall mean o.
"Cutoff Date" shall mean o.
"Deferred Prepayment" means, with respect to a Precomputed Receivable and a
Collection Period, the aggregate amount, if any, of Payments Ahead remitted to
the Servicer in respect of such Receivable during one or more prior Collection
Periods and currently held by the Servicer or in the Payahead Account.
["Pooling and Servicing Agreement" shall mean the Pooling and Servicing
Agreement dated as of o by and among Toyota Motor Credit Receivables
Corporation, as seller, Toyota Motor Credit Corporation, as servicer, and the
Trustee.]
"Purchaser" shall mean Toyota Motor Credit Receivables Corporation, in its
capacity as purchaser of the Receivables under this Agreement, and its
successors and assigns.
"Receivable" means any retail installment sale contract executed by an
Obligor in respect of a Financed Vehicle, and all proceeds thereof and payments
thereunder, which Receivable shall be identified in the Schedule of Receivables.
"Receivables Purchase Price" shall mean $o.
"Released Administrative Amount" means, with respect to a Distribution Date
and to an Administrative Receivable, the Deferred Prepayment, if any, for such
Administrative Receivable.
"Released Warranty Amount" means, with respect to a Distribution Date and
to a Warranty Receivable, the Deferred Prepayment, if any, for such Warranty
Receivable.
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["Sale and Servicing Agreement" shall mean the Sale and Servicing Agreement
dated as of o by and among Toyota Motor Credit Receivables Corporation, as
seller, Toyota Motor Credit Corporation, as servicer, and the Trustee.]
"Seller" shall mean Toyota Motor Credit Corporation, in its capacity as
seller of the Receivables under this Agreement, and its successors and assigns.
"Schedule of Receivables" means the schedule of receivables attached as
Schedule A hereto.
["Trust Agreement" means the Trust Agreement dated as of o by and between
Toyota Motor Receivables Corporation, as seller, and o, as trustee.]
"Trustee" shall mean o, as trustee under the [Pooling and Servicing
Agreement][Trust Agreement], or any successor trustee thereunder.
"Warranty Receivable" means a Receivable purchased by the Seller pursuant
to Section 2.03(c).
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) All capitalized terms not otherwise defined in this Agreement
shall have the defined meanings used in the [Pooling and Servicing
Agreement][Sale and Servicing Agreement or Trust Agreement, as the case may
be].
(b) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section, subsection
and Schedule references contained in this Agreement are references to
Sections, subsections and Schedules in or to this Agreement unless
otherwise specified; and the word "including" means including without
limitation.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 CONVEYANCE OF RECEIVABLES.
(a) Subject to the terms and conditions of this Agreement, on the
Closing Date the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, without recourse (subject to the
Seller's obligations hereunder):
(i) all right, title and interest of the Seller in and to the
Receivables listed in the Schedule of Receivables and all monies due
thereon or paid thereunder or in respect thereof (including proceeds
of the repurchase of Receivables by the Seller pursuant to Section
2.03(c)) on or after the Cutoff Date;
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(ii) the interest of the Seller in the security interests in the
Financed Vehicles granted by the Obligors pursuant to the Receivables
and any accessions thereto;
(iii) the interest of the Seller in any proceeds of any physical
damage insurance policies covering Financed Vehicles and in any
proceeds of any credit life or credit disability insurance policies
relating to the Receivables or the Obligors;
(iv) the interest of the Seller in any Dealer Recourse;
(v) the right of the Seller to realize upon any property
(including the right to receive future Liquidation Proceeds) that
shall have secured a Receivable and have been repossessed by or on
behalf of the Trustee; and
(vi) all proceeds of the foregoing.
(b) In connection with the foregoing conveyance, the Seller agrees to
record and file, at its own expense, a financing statement with respect to
the Receivables necessary to provide third parties with notice of the
conveyance hereunder and to perfect the sale of the Receivables to the
Purchaser, and the proceeds thereof (and any continuation statements as are
required by applicable state law), and to deliver a file-stamped copy of
each such financing statement (or continuation statement) or other evidence
of such filings (which may, for purposes of this Section, consist of
telephone confirmation of such filing with the file stamped copy of each
such filing to be provided to the Purchaser in due course), as soon as is
practicable after receipt by the Seller thereof.
The parties hereto intend that the conveyance hereunder be a sale. In the
event that the conveyance hereunder is not for any reason considered a sale, all
filings described in the foregoing paragraph shall give the Purchaser a first
priority perfected security interest in, to and under the Receivables, other
property conveyed hereunder and all proceeds of any of the foregoing and that
this Agreement constitute a security agreement under applicable law.
In connection with the foregoing conveyance, the Seller further agrees, at
its own expense, on or prior to the Closing Date (i) to annotate and indicate in
its computer files that the Receivables have been transferred to the Purchaser
pursuant to this Agreement, (ii) to deliver to the Purchaser a computer file or
printed or microfiche list containing a true and complete list of all such
Receivables, identified by account number and by the Principal Balance of each
Receivable as of the Cutoff Date, which file or list shall be marked as Schedule
A to this Agreement and is hereby incorporated into and made a part of this
Agreement and (iii) to deliver the Receivable Files to or upon the order of the
Purchaser.
SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE PURCHASER.
(a) The Seller hereby represents and warrants to the Purchaser as of
the date of this Agreement and the Closing Date that:
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(i) Organization and Good Standing. The Seller shall have been
duly organized and shall be validly existing as a corporation in good
standing under the laws of the State of California, with corporate
power and authority to own its properties and to conduct its business
as such properties shall be currently owned and such business is
presently conducted, and had at all relevant times, and shall now
have, corporate power, authority and legal right to acquire, own and
sell the Receivables.
(ii) Due Qualification. The Seller shall be duly qualified to do
business as a foreign corporation in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property or the conduct of its
business shall require such qualifications.
(iii) Power and Authority. The Seller shall have the corporate
power and authority to execute and deliver this Agreement and to carry
out its terms; and the execution, delivery and performance of this
Agreement shall have been duly authorized by the Seller by all
necessary corporate action.
(iv) Binding Obligation. This Agreement shall constitute a legal,
valid and binding obligation of the Seller enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally or by general principles of
equity.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of
time) a default under, the articles of incorporation or bylaws of the
Seller, or conflict with or breach any of the material terms or
provisions of, or constitute (with or without notice or lapse of time)
a default under, any indenture, agreement or other instrument to which
the Seller is a party or by which it shall be bound; nor result in the
creation or imposition of any lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument
(other than this Agreement); nor violate any law or, to the best of
the Seller's knowledge, any order, rule or regulation applicable to
the Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties; which breach, default,
conflict, lien or violation would have a material adverse effect on
the earnings, business affairs or business prospects of the Seller.
(vi) No Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending, or to the Seller's knowledge, threatened,
against or affecting the Seller: (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely effect the
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performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(b) The Purchaser hereby represents and warrants to the Seller as of
the date of this Agreement and the Closing Date that:
(i) Organization and Good Standing. The Purchaser shall have been
duly organized and shall be validly existing as a corporation in good
standing under the laws of the State of California, and has corporate
power and authority to own its properties and to conduct its business
as such properties shall be currently owned and such business is
presently conducted, and had at all relevant times, and shall now
have, corporate power, authority and legal right to acquire and own
the Receivables.
(ii) Due Qualification. The Purchaser shall be duly qualified to
do business as a foreign corporation in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property or the conduct of its
business shall require such qualifications.
(iii) Power and Authority. The Purchaser shall have the corporate
power and authority to execute and deliver this Agreement and to carry
out its terms; and the execution, delivery and performance of this
Agreement shall have been duly authorized by the Purchaser by all
necessary corporate action.
(iv) Binding Obligation. This Agreement shall constitute a legal,
valid and binding obligation of the Purchaser enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors' rights generally or by general principles of
equity.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of
time) a default under, the articles of incorporation or bylaws of the
Purchaser, or conflict with or breach any of the material terms or
provisions of, or constitute (with or without notice or lapse of time)
a default under, any indenture, agreement or other instrument to which
the Purchaser is a party or by which it shall be bound; nor result in
the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other
instrument (other than this Agreement); nor violate any law or, to the
best of the Purchaser's knowledge, any order, rule or regulation
applicable to the Purchaser of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its
properties; which breach, default, conflict, Lien or violation would
have a material adverse affect on the earnings, business affairs or
business prospects of the Purchaser.
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(vi) No Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending, or to the Purchaser's knowledge, threatened,
against or affecting the Purchaser: (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Purchaser of its obligations under, or the validity
or enforceability of, this Agreement.
(c) The representations and warranties set forth in this Section shall
survive the sale of the Receivables by the Seller to the Purchaser pursuant
to this Agreement and the sale of the Receivables by the Purchaser to the
Trust pursuant to the [Pooling and Servicing Agreement][Sale and Servicing
Agreement]. Upon discovery by the Seller, the Purchaser or the Trustee of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the others.
SECTION 2.3 REPRESENTATIONS AND WARRANTIES OF THE SELLER AS TO THE
RECEIVABLES.
(a) Eligibility of Receivables. The Seller hereby represents and
warrants as of the Cutoff Date that:
(i) Characteristics of Receivables. Each Receivable (A) shall
have been originated in the United States by a Dealer for the retail
sale of the related Financed Vehicle in the ordinary course of such
Dealer's business, shall have been fully and properly executed by the
parties thereto, shall have been purchased by the Seller from such
Dealer under an existing agreement with the Seller and shall have been
validly assigned by such Dealer to the Seller in accordance with the
terms of such agreement, (B) shall have created or shall create a
valid, subsisting and enforceable first priority security interest in
favor of the Seller in the related Financed Vehicle, which security
interest shall be assignable and has been assigned by the Seller to
the Purchaser, (C) shall provide for level Monthly Payments (provided
that the payment in the first or last month in the life of the
Receivable may be minimally different from the level payment) that
fully amortize the Amount Financed by maturity and provide for a
finance charge or yield interest at its APR, in either case calculated
based on the Rule of 78s, the simple interest method or the actuarial
method, (D) shall contain customary and enforceable provisions such
that the rights and remedies of the holder thereof shall be adequate
for realization against the collateral of the benefits of the security
and (E) shall provide for, in the event that such Receivable is
prepaid, a prepayment that fully pays the Principal Balance and
includes accrued but unpaid interest.
(ii) Schedule of Receivables. The information set forth in the
Schedule of Receivables shall be true and correct in all material
respects as of the opening of business on the Cutoff Date, the
Receivables were selected at random from the retail installment sale
contracts included in the portfolio of the Seller
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meeting the selection criteria set forth in this Section and no
selection procedures believed to be adverse to the interests of any
[Certificateholders] [Securityholders] shall have been utilized in
selecting the Receivables.
(iii) Compliance with Law. Each Receivable and each sale of the
related Financed Vehicle shall have complied at the time it was
originated or made, and shall comply at the time of execution of this
Agreement in all material respects with all requirements of applicable
federal, state and local laws, and regulations thereunder, including
usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal
Trade Commission Act, the Magnuson-Moss Warranty Act, Federal Reserve
Board Regulations B, M and Z, to the extent applicable, state
adaptations of the National Consumer Act and of the Uniform Consumer
Credit Code and other consumer credit, equal credit opportunity and
disclosure laws.
(iv) Binding Obligation. Each Receivable shall constitute the
legal, valid and binding payment obligation in writing of the related
Obligor, enforceable by the holder thereof in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at
law.
(v) No Bankrupt Obligors. None of the Receivables shall be due,
to the best knowledge of the Seller, from any Obligor who is presently
the subject of a bankruptcy proceeding or is insolvent.
(vi) No Government Obligors. None of the Receivables shall be due
from the United States or any state, or from any agency, department or
instrumentality of the United States or any state or local government.
(vii) Employee Obligors. None of the Receivables shall be due
from any employee of the Seller, the Purchaser or any of their
respective affiliates.
(viii) Security Interest in Financed Vehicles Immediately prior
to the sale, assignment and transfer thereof pursuant hereto, each
Receivable shall be secured by a validly perfected first priority
security interest in the related Financed Vehicle in favor of the
Seller as secured party or all necessary and appropriate action with
respect to such Receivable shall have been taken to perfect a first
priority security interest in such Financed Vehicle in favor of the
Seller as secured party.
(ix) Receivables in Force. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Financed Vehicle
have been released in whole or in part from the lien granted by the
related Receivable.
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(x) No Waivers. No provision of a Receivable shall have been
waived in such a manner that such Receivable fails to meet all of the
other representations and warranties made by the Seller herein with
respect thereto.
(xi) No Amendments. No Receivable shall have been amended or
modified in such a manner that the total number of Scheduled Payments
has been increased or that the related Amount Financed has been
increased or that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect
thereto.
(xii) No Defenses. No facts shall be known to the Seller which
would give rise to any right of rescission, setoff, counterclaim or
defense, nor shall the same have been asserted or threatened, with
respect to any Receivable.
(xiii) No Liens. To the knowledge of the Seller, no liens or
claims shall have been filed, including liens for work, labor or
materials relating to a Financed Vehicle, that shall be liens prior
to, or equal or coordinate with, the security interest in such
Financed Vehicle granted by the related Receivable.
(xiv) No Defaults; No Repossession. Except for payment defaults
that, as of the Cutoff Date, have been continuing for a period of not
more than o days, no default, breach, violation or event permitting
acceleration under the terms of any Receivable shall have occurred as
of the Cutoff Date; no continuing condition that with notice or the
lapse of time would constitute a default, breach, violation or event
permitting acceleration under the terms of any Receivable shall have
arisen; the Seller shall not have waived any of the foregoing; and no
Financed Vehicle has been repossessed without reinstatement as of the
Cutoff Date.
(xv) Insurance. At the time of origination of each Receivable,
each Obligor was required under the terms of such Receivable to obtain
and maintain physical damage insurance covering the related Financed
Vehicle.
(xvi) Good Title. It is the intention of the Seller that the
transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Receivables from the Seller to the Purchaser
and that the beneficial interest in and title to the Receivables not
be part of the debtor's estate in the event of the filing of a
bankruptcy petition by or against the Seller under any bankruptcy law.
No Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than the Purchaser, and no provision of a
Receivable shall have been waived, except as provided in clause (x)
above; immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each
Receivable free and clear of all Liens and rights of others;
immediately upon the transfer and assignment thereof, the Purchaser
shall have good and marketable title to each Receivable, free and
clear of all Liens and rights of others; and the transfer and
assignment herein contemplated has been perfected under the UCC.
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(xvii) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement or pursuant to transfers of the related certificates of
title shall be unlawful, void or voidable.
(xviii) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to provide third parties with notice of
the transfer and assignment herein contemplated, to perfect the sale
of the receivables from the Seller to the Purchaser and to give the
Purchaser a first priority perfected security interest in the
Receivables shall have been made.
(xix) One Original. There shall be only one original executed
copy of each Receivable.
(xx) Chattel Paper. Each Receivable constitutes "chattel paper"
as defined in the UCC.
(xxi) Additional Representations and Warranties. (A) Each
Receivable shall have an original maturity of not less than o months
nor greater than o months and a remaining maturity of not less than o
months nor greater than o months; (B) each Receivable provides for the
payment of a finance charge based on an APR ranging from o% to o%%;
(C) each Receivable shall have had an original principal balance of
not less than $o nor more than $o and, as of the Cutoff Date, an
unpaid principal balance of not less than $o and not more than $o; (D)
each Receivable was originated before o; (E) no Receivable was
originated under a special financing program; (F) no Receivable shall
have a Scheduled Payment that is more than o days past due as of the
Cutoff Date; and (G) no Financed Vehicle was subject to force-placed
insurance as of the Cutoff Date.
(b) Notice of Breach. The representations and warranties set forth in
this Section shall speak as of the execution and delivery of this
Agreement, but shall survive the sale, transfer and assignment of the
Receivables to the Purchaser and any subsequent assignment or transfer
pursuant to Article Two of the [Pooling and Servicing Agreement][Sale and
Servicing Agreement]. The Purchaser, the Seller or the Trustee, as the case
may be, shall inform the other parties promptly, in writing, upon discovery
of any breach of the Seller's representations and warranties pursuant to
this Section which materially and adversely affects the interests of any
[Certificateholders] [Securityholders] in any Receivable.
(c) Repurchase of Receivables. In the event of a breach of any
representation or warranty set forth in Section 2.03(a) which materially
and adversely affects the interest of any
[Certificateholders][Securityholders] in any Receivable and unless the
breach shall have been cured by the last day of the second Collection
Period following the Collection Period in which the discovery of the breach
is made or notice is received, as the case may be (or, at the option of the
Seller, the last day in the first Collection Period following the
Collection Period in which such discovery is made or such notice received),
the Seller shall repurchase such Receivable. In consideration of the
purchase of any such
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Receivable, the Seller shall remit an amount equal to the Warranty Purchase
Payment in respect of such Receivable to the Purchaser and shall be
entitled to receive the Released Warranty Amount. In the event that, as of
the date of execution and delivery of this Agreement, any Liens or claims
shall have been filed, including Liens for work, labor or materials
relating to a Financed Vehicle, that shall be liens prior to, or equal or
coordinate with, the Lien granted by the related Receivable (whether or not
the Seller has knowledge thereof), and such breach materially and adversely
affects the interests of any [Certificateholders][Securityholders] in such
Receivable, the Seller shall repurchase such Receivable on the terms and in
the manner specified above. Upon any such repurchase, the Purchaser shall,
without further action, be deemed to transfer, assign, set-over and
otherwise convey to the Seller, without recourse, representation or
warranty, all the right, title and interest of the Purchaser in, to and
under such repurchased Receivable, all monies due or to become due with
respect thereto and all proceeds thereof. The Purchaser or the Trustee, as
applicable, shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested by
the Seller to effect the conveyance of such Receivable pursuant to this
Section. The sole remedy of the Purchaser with respect to a breach of the
Seller's representations and warranties pursuant to Section 2.03(a) or with
respect to the existence of any such Liens or claims shall be to require
the Seller to repurchase the related Receivables pursuant to this Section.
SECTION 2.4 COVENANTS OF THE SELLER. The Seller hereby covenants that:
(a) Security Interests. Except for the conveyances hereunder, the
Seller will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any Receivable,
whether now existing or hereafter created, or any interest therein, the
Seller will immediately notify the Purchaser of the existence of any Lien
on any Receivable and, in the event that the interests of any
[Certificateholders] [Securityholders] in such Receivable are materially
and adversely affected, such Receivable shall be repurchased from the
Purchaser by the Seller in the manner and with the effect specified in
Section 2.03(c), and the Seller shall defend the right, title and interest
of the Purchaser in, to and under the Receivables, whether now existing or
hereafter created, against all claims of third parties claiming through or
under the Seller; provided, however, that nothing in this subsection shall
prevent or be deemed to prohibit the Seller from suffering to exist upon
any of the Receivables, Liens for municipal or other local taxes if such
taxes shall not at the time be due and payable or if the Seller shall
currently be contesting the validity of such taxes in good faith by
appropriate proceedings and shall have set aside on its books adequate
reserves with respect thereto.
(b) Delivery of Payments. The Seller agrees to deliver in kind upon
receipt to the Servicer under the [Pooling and Servicing Agreement][Sale
and Servicing Agreement] (if other than the Seller) all payments received
by the Seller in respect of the Receivables as soon as practicable after
receipt thereof by the Seller, from and after the appointment of the
Servicer as Servicer under the [Pooling and Servicing Agreement][Sale and
Servicing Agreement] with respect to the Toyota Auto Receivables 200_-_
[Grantor][Owner] Trust.
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(c) Conveyance of Receivables. The Seller covenants and agrees that it
will not convey, assign, exchange or otherwise transfer the Receivables to
any Person prior to the termination of this Agreement pursuant to Article
Four hereof.
(d) No Impairment. The Seller shall take no action, nor omit to take
any action, which would impair the rights of the Purchaser in any
Receivable, nor shall it, except as expressly provided in this Agreement or
the [Pooling and Servicing Agreement][Sale and Servicing Agreement],
reschedule, revise or defer payments due on any Receivable.
ARTICLE III
PAYMENT OF RECEIVABLES PURCHASE PRICE
SECTION 3.1 PAYMENT OF RECEIVABLES PURCHASE PRICE. In consideration of the
sale of the Receivables from the Seller to the Purchaser as provided in Section
2.01, on the Closing Date the Purchaser agrees to pay the Seller an amount equal
to the Receivables Purchase Price. The Receivables Purchase Price shall be paid
in the form of (i) $o, the net cash proceeds from the public offering by the
Purchaser of the Certificates (less amounts retained to pay expenses of the
Purchaser and to fund the Reserve Fund Initial Deposit and the Yield Maintenance
Account Initial Deposit), and (ii) $o evidenced by a non-recourse promissory
subordinated note.
ARTICLE IV
TERMINATION
SECTION 4.1 TERMINATION. The respective obligations and responsibilities of
the Seller and the Purchaser created hereby shall terminate, except for the
indemnity obligations of the Seller as provided herein, upon the termination of
the Trust as provided in Article Ten of the [Pooling and Servicing
Agreement][Sale and Servicing Agreement].
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 AMENDMENT.
(a) This Agreement may be amended from time to time by the Purchaser
and the Seller to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein,
or to add any other provision with respect to matters or questions arising
under this Agreement which shall not be inconsistent with the provisions of
this Agreement or the [Pooling and Servicing Agreement][Trust Agreement and
Sale and Servicing Agreement]; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel to the Purchaser delivered to
the Trustee, adversely affect in any material respect the interests of the
Trust.
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(b) This Agreement may also be amended from time to time by the
Purchaser and the Seller with the consent of the Trustee for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement.
SECTION 5.2 PROTECTION OF RIGHT, TITLE AND INTEREST TO RECEIVABLES.
(a) The Seller at its expense shall cause this Agreement, all
amendments hereto and/or all financing statements and continuation
statements and any other necessary documents covering the Purchaser's
right, title and interest to the Receivables and other property conveyed by
the Seller to the Purchaser hereunder to be promptly recorded, registered
and filed, and at all times to be kept recorded, registered and filed, all
in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of the Purchaser
hereunder to all of the Receivables and such other property. The Seller
shall deliver to the Purchaser file-stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided above, as soon
as available following such recording, registration or filing. The
Purchaser and the Trustee shall cooperate fully with the Seller in
connection with the obligations set forth above and will execute any and
all documents reasonably required to fulfill the intent of this subsection.
(b) Within 30 days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9402(7) of the UCC as in
effect in the applicable state, the Seller shall give the Purchaser notice
of any such change and shall execute and file such financing statements or
amendments as may be necessary to continue the perfection of the
Purchaser's security interest in the Receivables and the proceeds thereof.
(c) The Seller will give the Purchaser prompt written notice of any
relocation of any office from which the Seller keeps records concerning the
Receivables or of its principal executive office and whether, as a result
of such relocation, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall execute and file such
financing statements or amendments as may be necessary to continue the
perfection of the interest of the Purchaser in the Receivables and the
proceeds thereof.
SECTION 5.3 GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
SECTION 5.4 NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (a) in
the case of the Purchaser, to Toyota Motor Credit Receivables Corporation, 19001
South Western Avenue, Torrance, California 90501, Attention: President; (b) in
the case of Toyota Motor Credit Corporation, 19001 South Western Avenue,
Torrance, California 90501, Attention: Senior Vice President; and (c) in the
case of the
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Trustee, to o; or, as to any of such Persons, at such other address as shall be
designated by such Person in a written notice to the other Persons.
SECTION 5.5 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions and terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
SECTION 5.6 ASSIGNMENT. This Agreement may not be assigned by the Purchaser
or the Seller except as contemplated by this Section and the [Pooling and
Servicing Agreement][Trust Agreement and Sale and Servicing Agreement];
provided, however, that simultaneously with the execution and delivery of this
Agreement, the Purchaser shall assign all of its right, title and interest
herein to the Trustee for the benefit of any [Certificateholders]
[Securityholders] as provided in Section 2.01 of the [Pooling and Servicing
Agreement][Sale and Servicing Agreement], to which the Seller hereby expressly
consents. The Seller agrees to perform its obligations hereunder for the benefit
of the Trust and that the Trustee may enforce the provisions of this Agreement,
exercise the rights of the Purchaser and enforce the obligations of the Seller
hereunder without the consent of the Purchaser.
SECTION 5.7 FURTHER ASSURANCES. The Seller and the Purchaser agree to do
and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party hereto
or by the Trustee more fully to effect the purposes of this Agreement,
including, without limitation, the execution of any financing statements,
amendments, continuation statements or releases relating to the Receivables for
filing under the provisions of the UCC or other law of any applicable
jurisdiction.
SECTION 5.8 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Purchaser, the Trustee or the Seller,
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 exhaustive of any
rights, remedies, powers and privileges provided by law.
SECTION 5.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 5.10 THIRD-PARTY BENEFICIARIES. This Agreement will inure to the
benefit of and be binding upon the parties signatory hereto, and the Trustee for
the benefit of any [Certificateholders][Securityholders], which shall be
considered to be a third-party beneficiary hereof. Except as otherwise provided
in this Agreement, no other Person will have any right or obligation hereunder.
SECTION 5.11 MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter
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hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 5.12 HEADINGS. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 5.13 INDEMNIFICATION.
(a) Purchaser and Trust. The Seller shall indemnify and hold harmless
the Purchaser, the Trust and the [Certificateholders][Securityholders] from
and against any loss, liability, expense, damage or injury suffered or
sustained by reason of any acts, omissions or alleged acts or omissions
arising out of activities of the Seller pursuant to this Agreement or as a
result of the transactions contemplated hereby, including, but not limited
to, any judgment, award, settlement, reasonable attorneys' fees and other
costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim; provided, however, that the Seller
shall not indemnify the Purchaser, the Trust or any
[Certificateholders][Securityholders] if such acts, omissions or alleged
acts or omissions constitute negligence or willful misconduct by the
Purchaser or any [Certificateholders][Securityholders].
(b) Trustee. The Seller shall indemnify, defend and hold harmless the
Trustee from and against any and all costs, expenses, losses, claims,
damages, injury and liabilities to the extent that such cost, expense,
loss, claim, damage or liability arose out of, and was imposed upon the
Trustee through the negligence, willful misfeasance or bad faith of the
Seller in the performance of its duties under this Agreement or by reason
of reckless disregard of its obligations and duties under this Agreement.
SECTION 5.14 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF, THE SELLER.
(a) The Seller shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially
as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into which
the Seller is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Seller substantially as an
entirety shall be organized and existing under the laws of the United
States or any State or the District of Columbia, and, if the Seller is
not the surviving entity, shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Purchaser and the
Trustee, in form reasonably satisfactory to the Purchaser and the
Trustee, the performance of every covenant and obligation of the
Seller hereunder and shall benefit from all the rights granted to the
Seller hereunder; and the Seller shall have delivered to the Purchaser
and the Trustee an Officer's Certificate of the Seller and an Opinion
of Counsel each stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this
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Section and that all conditions precedent herein provided for relating
to such transaction have been complied with.
(b) The obligations of the Seller hereunder shall not be assignable
nor shall any Person succeed to the obligations of the Seller hereunder
except in each case in accordance with the provisions of the foregoing
paragraph and of Section 5.06.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
By:
-----------------------------------
Name:
Title:
TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION,
as Purchaser
By:
-----------------------------------
Name:
Title:
ACCEPTED:
o,
not in its individual capacity
but solely as Trustee
By:
-------------------------------------------
Name:
Title:
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SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- originals on file at the offices
of the Seller, the Purchaser and the Trustee
A-1
