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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: July 22, 1999
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(Date of earliest event reported)
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION ON BEHALF OF THE
TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
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(Exact name of registrant as specified in its charter)
CALIFORNIA 333-76505 33-036836
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
19001 South Western Avenue
Torrance, California 90509
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(Address of principal executive offices)
Registrant's telephone number, including area code: (310) 787-3541
ITEM 5. OTHER EVENTS
On July 22, 1999, Toyota Motor Credit Receivables Corporation
("TMCRC") and Toyota Motor Credit Corporation ("TMCC") entered into that certain
Receivables Purchase Agreement dated as of July 1, 1999 (the "Receivables
Purchase Agreement"), pursuant to which TMCC transferred to TMCRC certain retail
installment sales contracts relating to certain new and used automobiles and
light duty trucks (the "Receivables") and related property. On July 22, 1999,
the Toyota Auto Receivables 1999-A Owner Trust, a Delaware business trust
created pursuant to that certain Amended and Restated Trust Agreement dated as
of July 1, 1999 (the "Trust Agreement"), by and between TMCRC, as depositor,
U.S. Bank National Association, as Owner Trustee, and First Union Trust Company,
National Association, as Delaware Co-trustee, (the "Trust"), TMCRC, as seller,
and TMCC, as servicer, entered into that certain Sale and Servicing Agreement
dated as of July 1, 1999 (the "Sale and Servicing Agreement"), pursuant to which
the Receivables and related property were transferred to the Trust. Also on July
22, 1999, the Trust caused the issuance, pursuant to an Indenture dated as of
July 1, 1999 (the "Indenture"), by and between the Trust, as issuer, and U.S.
Bank National Association, as indenture trustee, and pursuant to the Sale and
Servicing Agreement, of the Notes, issued in the following classes: Class A-1,
Class A-2, Class A-3, Class B and Class C (collectively, the "Notes"). The
Notes, with an aggregate scheduled principal balance, as of July 1, 1999, of
$961,976,000., were sold to Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Bear, Stearns & Co., Inc., Credit Suisse First Boston
Corporation, Morgan Stanley & Co. Incorporated, Lehman Brothers Inc., and
Salomon Smith Barney Inc., as underwriters (the "Underwriters"), pursuant to an
Underwriting Agreement dated as of July 13, 1999, by and between TMCRC, TMCC and
the Underwriters. The Notes have been registered pursuant to the Securities Act
of 1933, as amended, under a Registration Statement on Form S-3 (Commission File
No. 333-76505).
Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Sale and Servicing Agreement.
Attached as Exhibit 1.1 is the Underwriting Agreement.
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EXHIBIT INDEX
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Not applicable.
(b) Not applicable.
(c) Exhibits
The exhibit number corresponds with Item 601(a) of Regulation S-K.
EXHIBIT NO. DESCRIPTION
Exhibit 1.1 Underwriting Agreement dated as of July 13,
1999, between TMCRC, TMCC and Goldman, Sachs
& Co. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, on behalf of themselves
and as representatives of the several
Underwriters.
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Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on behalf of the
Registrant by the undersigned thereunto duly authorized.
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION
By: /s/ Lloyd Mistele
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Name: Lloyd Mistele
Title: President
July 22, 1999
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EXHIBIT INDEX
Item 601(a) of Regulation S-K
EXHIBIT NO. DESCRIPTION
Exhibit 1.1 Underwriting Agreement dated as of
July 13, 1999, between TMCRC, TMCC and
Goldman, Sachs & Co. and Merrill
Lynch, Pierce, Fenner & Smith
Incorporated, on behalf of themselves
and as representatives of the several
Underwriters.
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Exhibit 1-1
TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
$303,000,000, 5.365% ASSET BACKED NOTES, CLASS A-1
$284,000,000, 5.80% ASSET BACKED NOTES, CLASS A-2
$334,093,000, 6.15% ASSET BACKED NOTES, CLASS A-3
$26,454,000, 6.30% ASSET BACKED NOTES, CLASS B
$14,429,000, 6.70% ASSET BACKED NOTES, CLASS C
UNDERWRITING AGREEMENT
July 13, 1999
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch, Pierce, Fenner & Smith Incorporated
250 Vesey Street
New York, New York 10281
As Joint Global Coordinators,
Bookrunners and Representatives of the
several Underwriters
Ladies and Gentlemen:
Section 1. INTRODUCTORY. Toyota Motor Credit Receivables Corporation, a
California corporation (the "Seller") and a wholly owned subsidiary of Toyota
Motor Credit Corporation, a California corporation ("TMCC"), proposes to sell to
each of the several underwriters named in Schedule I-A hereto (the "Class A
Underwriters") $303,000,000 aggregate principal amount of 5.365% Asset Backed
Notes, Class A-1 (the "Class A-1 Notes") $284,000,000 aggregate principal amount
of 5.80% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"), $334,093,000
aggregate principal amount of 6.15% Asset Backed Notes, Class A-3 (the "Class
A-3 Notes" and together with the Class A-1 Notes and Class A-2 Notes, the "Class
A Notes") and to each of the several underwriters named in Schedule I-B hereto
(the "Class B Underwriters") $26,454,000 aggregate principal amount of 6.30%
Asset Backed Notes, Class B (the "Class B Notes") and to each of the several
underwriters named in Schedule I-C hereto (the "Class C Underwriters", and
together with the Class A Underwriters and the Class B Underwriters, the
"Underwriters"), $14,429,000 aggregate principal amount of 6.70% Asset Backed
Notes, Class C (the "Class C Notes", and, together with the Class A Notes and
the Class B Notes, the "Notes") of the Toyota Auto Receivables 1999-A Owner
Trust (the "Trust"). The Trust will also issue asset backed certificates (the
"Certificates"). The Certificates will represent fractional undivided interests
in the Trust. The Certificates will not be sold hereunder. Goldman, Sachs & Co.
and Merrill Lynch, Pierce, Fenner & Smith Incorporated will act as
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representatives for the Class A-2 and Class A-3 Underwriters and will be the
sole Class A-1 Underwriters, Class B Underwriters and Class C Underwriters, and
in such capacities shall herein be the "Representatives". The assets of the
Trust will include, among other things, a pool of retail installment sale
contracts (the "Receivables") secured by the new and used automobiles and light
duty trucks financed thereunder (the "Financed Vehicles") and certain monies due
or to become due thereunder on or after July 1, 1999 (the "Cutoff Date") and the
other property and the proceeds thereof to be conveyed to the Trust pursuant to
the Sale and Servicing Agreement to be dated as of July 1, 1999 (the "Sale and
Servicing Agreement") among the Trust, the Seller and TMCC. TMCC purchased the
Receivables from certain Toyota and Lexus dealers. The Receivables and other
assets of the Trust will be sold by TMCC to the Seller pursuant to a Receivables
Purchase Agreement (the "Receivables Purchase Agreement") to be dated as of July
1, 1999 between TMCC and the Seller. Pursuant to the Sale and Servicing
Agreement, the Seller will sell the Receivables to the Trust and TMCC will
service the Receivables on behalf of the Trust. In addition, pursuant to the
Sale and Servicing Agreement, TMCC will agree to perform certain administrative
tasks on behalf of the Trust imposed on the Trust under the Indenture. The Notes
will be issued pursuant to the Indenture to be dated as of July 1, 1999 (the
"Indenture"), between the Trust and U.S. Bank National Association (the
"Trustee"). TMCC will cause the Seller to form the Trust pursuant to a Trust
Agreement (the "Trust Agreement") to be dated as of July 1, 1999, between the
Seller, U.S. Bank National Association as owner trustee (the "Owner Trustee")
and First Union Trust Company, National Association, as Delaware trustee
("Delaware Trustee"). As used herein, the term "Basic Documents" refers to the
Sale and Servicing Agreement, the Trust Agreement, the Indenture and the
Receivables Purchase Agreement.
This Underwriting Agreement shall hereinafter be referred to as "this
Agreement". Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Sale and Servicing Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND TMCC.
(a) Each of the Seller and TMCC, jointly and severally, represents and
warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-3 (No. 333-76505),
including a form of prospectus supplement, relating to the Notes and a
form of Base Prospectus relating to each class of securities to be
registered under such registration statement (the "Registered
Securities") has been filed with the Securities and Exchange Commission
(the "Commission") and either (A) has been declared effective under the
Securities Act of 1933, as amended (the "Act"), and is not proposed to
be amended or (B) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the "initial
registration statement") has been declared effective, either (i) any
additional registration statement (the "additional registration
statement") relating to the Notes has been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Act and declared
effective upon filing pursuant to Rule 462(b) and the Notes have been
duly
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registered under the Act pursuant to the initial registration
statement and such additional registration statement or (ii) any such
additional registration statement proposed to be filed with the
Commission pursuant to Rule 462(b) will become effective upon filing
pursuant to Rule 462(b) and upon such filing the Notes will have been
duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Seller
does not propose to amend the initial registration statement, any such
additional registration statement or any post-effective amendment to
either such registration statement filed with the Commission prior to
the execution and delivery of this Agreement, then the most recent
amendment (if any) to each such registration statement has been
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) under the Act ("Rule 462(c)") or Rule
462(b).
For purposes of this Agreement, "Effective Time" with respect
to the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional registration
statement means (A) if the Seller has advised the Representatives that
it does not propose to amend such registration statement, the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
or (B) if the Seller has advised the Representatives that it proposes
to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement as
amended by such amendment or post-effective amendment, as the case may
be, is declared effective by the Commission. If the Seller has advised
the Representatives that it proposes to file, but has not filed, an
additional registration statement. Prior to the execution and delivery
of this Agreement, "Effective Time" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof.
The initial registration statement, as amended at its
Effective Time, including all information (A) contained in the
additional registration statement (if any), (B) deemed to be a part of
the initial registration statement as of the Effective Time of the
additional registration statement (if any) pursuant to the General
Instructions of the Form on which it is filed and (C) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) under the Act ("Rule 430A(b)"), is hereinafter
referred to as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time, including (A)
the contents of the initial registration statement incorporated by
reference therein and (B) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement." The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement." The form of
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prospectus supplement relating to the Notes (the "Prospectus
Supplement") and the form of prospectus (the "Base Prospectus")
relating to the Registered Securities (including the Notes), as first
filed with the Commission in connection with the offering and sale of
the Notes pursuant to and in accordance with Rule 424(b) under the Act
("Rule 424(b)") or, if no such filing is required, as included in a
Registration Statement, including all material incorporated by
reference in such prospectus, is hereinafter referred to as the
"Prospectus". Any reference herein to "Registration Statement" or
"Prospectus" shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") on or before the Effective Date of the
Registration Statement or the issue date of the Prospectus, as the
case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of the Prospectus, as the
case may be, deemed to be incorporated therein by reference; any
reference in this Agreement to documents, financial statements and
schedules and other information which is "contained", "included",
"stated", "described" or "referred to" in the Registration Statement
or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such documents, financial statements
and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
(ii) (A) On the Effective Date of any Registration Statement
whose Effective Time is prior to the execution and delivery of this
Agreement, each such Registration Statement conformed, (B) on the date
of this Agreement each such Registration Statement conforms and (C) on
any related Effective Date subsequent to the date of this Agreement,
each such Registration Statement will conform, in all material respects
with the requirements of the Act and the rules and regulations of the
Commission promulgated under the Act (the "Rules and Regulations"), and
at such times did not and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. At
the time of the filing of the Prospectus pursuant to Rule 424(b) or, if
no such filing is required, at the Effective Date of the Additional
Registration Statement that includes the Prospectus, on the date of
this Agreement and at the Closing Date (as such term is defined in
Section 3 hereof), the Prospectus will conform in all material respects
to the requirements of the Act and the Rules and Regulations, and does
not include, or will not include, any untrue statement of a material
fact nor does the Prospectus omit, nor will it omit, any material fact,
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The two
immediately preceding sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
and in conformity with the Underwriters Information (as defined in
Section 7(a) or to that part of the Registration Statement which
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shall constitute the Statement of Qualification under the Trust
Indenture Act of 1939, as amended (the "1939 Act") on Form T-1 (the
"Form T-1") of the Trustee). If the Effective Time of the Initial
Registration Statement is subsequent to the date of this Agreement, no
Additional Registration Statement has been or will be filed.
(iii) The consummation of the transactions contemplated by
this Agreement and the Basic Documents, and the fulfillment of the
terms thereof, will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in
the creation of any lien, charge, or encumbrance upon any of the
property or assets of the Seller or TMCC pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument under which the
Seller or TMCC is a debtor or guarantor.
(iv) No consent, approval, or order of, or filing with, any
court or governmental agency or body is required to be obtained or made
by the Seller or TMCC for the consummation of the transactions in the
manner contemplated by this Agreement except such as have been obtained
and made under the Act or the Rules and Regulations, such as may be
required under state securities laws and the filing of any financing
statements required to perfect the transfer of the Receivables.
(v) Neither the Seller nor TMCC is in violation of its charter
or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any agreement
or instrument to which it is a party or by which it or its properties
are bound which could have a material adverse effect on the
transactions contemplated herein or in the Basic Documents. The
execution, delivery and performance of this Agreement and the Basic
Documents and the issuance and sale of the Notes and compliance with
the terms and provisions of the Notes will not, subject to obtaining
any consents or approvals as my be required under the securities laws
of various jurisdictions in the United States and elsewhere), result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or order of
any governmental agency or body or any court having jurisdiction over
the Seller or TMCC or any of their respective properties or any
agreement or instrument to which the Seller or TMCC is a party or by
which the Seller or TMCC is bound or to which any of their respective
properties is subject, or with the charter or by-laws of the Seller or
TMCC, and each of the Seller and TMCC has full corporate power and
authority to enter into this Agreement and the Basic Documents and to
consummate the transactions contemplated hereby and thereby.
(vi) This Agreement and each of the Basic Documents to which
it is a party has been duly authorized, executed and delivered by the
Seller and TMCC.
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(vii) The Seller has caused to be filed with the Commission on
July 13, 1999 the Current Report on Form 8-K (as amended) with respect
to the Term Sheet dated July 12, 1999 relating to the Notes (the "Term
Sheet").
(viii) The Notes are "asset backed securities" within the
meaning of, and satisfy the requirements for use of, Form S-3 under the
Act.
(ix) The documents incorporated by reference in the
Registration Statement and Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder.
(x) Neither TMCC or the Seller has entered into, nor will it
enter into, any contractual arrangement with respect to the
distribution of the Notes except for this Underwriting Agreement.
(xi) The Trust is not an "investment company" and is not
required to be registered as an "investment company," as such term is
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(b) As of the Closing Date, the representations and warranties of the
Seller and of TMCC in each of the Basic Documents to which it is a party will be
true and correct in accordance with the terms of such Basic Document; provided,
however, that with respect to representations made with respect to any
Receivable, the sole remedy for any breach thereof is, as provided in the
related agreement, the repurchase by either TMCC or the Seller, as the case may
be, of such Receivable.
Section 3. PURCHASE, SALE AND DELIVERY OF THE NOTES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to sell to the several
Underwriters, and (i) the Class A-1 Underwriters agree, severally and not
jointly, to purchase from the Seller, the respective principal amounts of Class
A-1 Notes set forth opposite the names of the Class A-1 Underwriters in Schedule
I-A-1 hereto, (ii) the Class A-2 Underwriters agree, severally and not jointly,
to purchase from the Seller, the respective principal amounts of Class A-2 Notes
set forth opposite the names of the Class A-2 Underwriters in Schedule I-A-2
hereto, (iii) the Class A-3 Underwriters agree, severally and not jointly, to
purchase from the Seller, the respective principal amounts of Class A-3 Notes
set forth opposite the names of the Class A-3 Underwriters in Schedule I-A-3
hereto, (iv) the Class B Underwriters agree, severally and not jointly, to
purchase from the Seller, the respective principal amounts of Class B Notes set
forth opposite the names of the Class B Underwriters in Schedule I-B hereto and
(v) the Class C Underwriters agree, severally and not jointly, to purchase from
the Seller, the respective principal amounts of Class C Notes set forth opposite
the names of the Class C Underwriters in Schedule I-C hereto. The Notes are to
be purchased at a purchase price equal to (i) in the case of the Class A-1
Notes, 99.875% of the
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aggregate principal amount thereof plus accrued interest at the Class A-1 Note
Rate from (and including) July 22, 1999, to (but excluding) the Closing Date,
(ii) in the case of the Class A-2 Notes, 99.779209% of the aggregate principal
amount thereof plus accrued interest at the Class A-2 Note Rate from (and
including) July 22, 1999, to (but excluding) the Closing Date, (iii) in the case
of the Class A-3 Notes, 99.751047% of the aggregate principal amount thereof
plus accrued interest at the Class A-3 Note Rate from (and including) July 22,
1999, to (but excluding) the Closing Date, (iv) in the case of the Class B
Notes, 99.599668% of the aggregate principal amount thereof plus accrued
interest at the Class B Note Rate from (and including) July 22, 1999, to (but
excluding) the Closing Date, and (v) in the case of the Class C Notes,
99.520595% of the aggregate principal amount thereof plus accrued interest at
the Class C Note Rate from (and including) July 22, 1999, to (but excluding) the
Closing Date.
The Class A Notes will initially be represented by three Notes
respectively representing $303,000,000, $284,000,000 and $334,093,000 aggregate
principal amount of Class A Notes registered in the name of Cede & Co., the
nominee of The Depository Trust Company, New York, New York ("DTC") (the "Class
A DTC Notes"). The Class B Notes will initially be represented by one
Certificate representing $26,454,000 aggregate principal amount of Class B Notes
registered in the name of Cede & Co., the nominee of DTC (the "Class B DTC
Notes"). The Class C Notes will initially be represented by one Certificate
representing $14,429,000 aggregate principal amount of Class C Notes registered
in the name of Cede & Co., the nominee of DTC (the "Class C DTC Notes", and
together with the Class A DTC Notes and the Class B DTC Notes, the "DTC Notes").
The interests of beneficial owners of the DTC Notes will be represented by book
entries on the records of DTC and participating members thereof. Definitive
notes evidencing the DTC Notes will be available only under the limited
circumstances specified in the Basic Documents.
The Seller will deliver the DTC Notes to the Representatives for the
respective securities accounts of the Underwriters at the office of DTC, 55
Water Street, 49th Floor, New York, New York 10004, against payment to the
Seller of the purchase price for the Notes by wire transfer in immediately
available funds, at 10:00 am., New York time, on July 22, 1999, or at such other
time not later than seven full business days thereafter as the Seller, TMCC and
the Representatives determine, such time being herein referred to as the
"Closing Date". The certificates evidencing the DTC Notes will be made available
for checking and packaging at the office of US Bank National Association in The
City of New York at least 24 hours prior to the Closing Date.
Section 4. OFFERING BY THE UNDERWRITERS. It is understood that the
several Underwriters propose to offer the Notes for sale to the public as set
forth in the Prospectus.
Section 5. CERTAIN AGREEMENTS OF THE SELLER AND TMCC. Each of the
Seller and TMCC as the case may be, jointly and severally, covenants and agrees
with the several Underwriters that:
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(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Seller will file the Prospectus with
the Commission pursuant to and in accordance with Rule 424(b) not later
than the second business day following the execution and delivery of
this Agreement. The Seller will advise the Representatives promptly of
any such filing pursuant to Rule 424(b). If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement and an additional registration statement is necessary
to register a portion of the Notes under the Act but the Effective Time
thereof has not occurred as of such execution and delivery, the Seller
will file the Additional Registration Statement or a post-effective
amendment thereto, as the case may be, with the Commission pursuant to
and in accordance with Rule 424(b) on or prior to 10:00 p.m., New York
time, on the date of this Agreement or, if earlier, on or prior to the
time the Prospectus is printed and distributed to any Underwriter, or
will make such filing at such later date as shall have been consented
to by the Underwriter.
(b) The Seller will advise the Representatives promptly of any
proposal to amend or supplement the initial registration statement or
any additional registration statement as filed or the related
prospectus or any Registration Statement or the Prospectus and will not
effect any such amendment or supplement without the consent of the
Representatives; and the Seller will also advise the Representatives
promptly of the effectiveness of each Registration Statement (if the
related Effective Time is subsequent to the execution and delivery of
this Agreement) and of any amendment or supplement of any Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of any Registration Statement and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply
with the Act, the Seller will promptly notify the Representatives and
will promptly prepare and file, or cause to be prepared and filed, with
the Commission an amendment or supplement which will correct such
statement, or omission, or an amendment or supplement which will effect
such compliance. Neither the Representatives consent to, nor the
delivery by the Representatives of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6 hereof.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Seller will cause the Owner
Trustee to make generally available to the Noteholders an earnings
statement with respect to the Trust covering a period of at least
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12 months beginning after the Effective Date of the Initial
Registration Statement (or of any Additional Registration Statement)
that will satisfy the provisions of Section 11(a) of the Act. For the
purpose of the preceding sentence, "Availability Date" means the 45th
day after the end of the Seller's fourth fiscal quarter following the
Seller's fiscal quarter that includes such Effective Date, except
that, if such fourth fiscal quarter is the last quarter of the
Seller's fiscal year, "Availability Date" means the 90th day after the
end of such fourth fiscal quarter.
(e) The Seller will furnish to the Representatives copies of
each Registration Statement as originally filed and each amendment
thereto (in each case at least two of which will include all exhibits).
and to the Underwriters, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Representatives may reasonably request. The
Prospectus shall be so furnished no later than 3:00 p.m., New York City
time, on the second business day following the later of the execution
and delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other documents shall be furnished as soon
as available and in such quantities as the Representatives reasonably
request. The Seller will pay the expenses of printing and distributing
to the Underwriters all such documents.
(f) The Seller will arrange for the qualification of the Notes
for sale under the securities laws of such jurisdictions in the United
States as the Representatives may reasonably designate and will
continue such qualifications in effect so long as required for the
distribution of the Notes, provided that the Seller shall not be
obligated to qualify to do business nor become subject to service of
process generally, but only to the extent required for such
qualification, in any jurisdiction in which it is not currently so
qualified.
(g) So long as any of the Notes are outstanding, the Seller or
TMCC, as the case may be, will deliver or cause to be delivered to the
Representatives (i) copies of each report regarding the Notes mailed to
Noteholders pursuant to the Basic Documents, (ii) the annual statement
as to compliance and the annual statement of a firm of independent
public accountants furnished to the Trustee pursuant to the Basic
Documents (as amended), as soon as such statements are furnished to the
Trustee, (iii) copies of all documents required to be filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or any order of the Commission thereunder and
(iv) such other information concerning the Seller, TMCC (relating to
the Receivables, the servicing thereof or the ability of TMCC to act as
Servicer), the Notes or the Trust as the Representatives may reasonably
request from time to time.
(h) On or before the Closing Date, the Seller and TMCC shall
cause the computer records of the Seller and TMCC relating to the
Receivables to show the absolute ownership by the Owner Trustee on
behalf of the Trust of the Receivables, and from and after the Closing
Date none of the Seller or TMCC shall take any action inconsistent with
the ownership by the Owner Trustee on behalf of the Trust of such
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Receivables, other than as permitted by the Sale and Servicing
Agreement or as required by law.
(i) The Seller and TMCC will pay all expenses incident to the
performance of their respective obligations under this Agreement,
including without limitation, (i) expenses incident to the printing,
reproduction and distribution of the Registration Statement as
originally filed and each amendment thereto and the Prospectus
(including any amendments and supplements thereto), (ii) the fees and
disbursements of the Trustee and Owner Trustee and their counsel, (iii)
the fees and disbursements of counsel to the Seller and TMCC and the
independent public accountants of the Seller, (iv) the fees charged by
Moody's Investors Service, Inc. ("Moody's") and Standard & Poor's
Ratings Services, a division of the McGraw Hill Companies ("Standard &
Poor's", and together with Moody's, the "Rating Agencies") in
connection with the rating of the Notes, (v) the fees of DTC in
connection with the book-entry registration of the DTC Notes, (vi) the
preparation, issuance and delivery of the Notes and (vii) expenses
incurred in distributing the Prospectus (including any amendments and
supplements thereto) to the Underwriters, and will reimburse the
Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by the Underwriters in connection
with the qualification of the Notes for sale under the securities laws
of such jurisdictions in the United States as the Representatives may
designate pursuant to Section 5(f) hereof and in connection with the
preparation of any blue sky or legal investment survey, if any is
required.
(j) For a period of 14 days from the date hereof, neither the
Seller, TMCC nor any of their respective affiliates will, without the
prior written consent of the Representatives, directly or indirectly,
offer, sell or contract to sell or announce the offering of, in a
public or private transaction, any other collateralized securities
similar to the Notes.
(k) So long as any Notes are outstanding, the Seller and TMCC
will cause to be delivered to the Representatives a reliance letter
relating to each Opinion of Counsel delivered to any Rating Agency by
counsel to the Seller or counsel to TMCC pursuant to the Basic
Documents.
(l) To the extent if any, that the rating at the Closing Date
provided with respect to the Notes by any Rating Agency is conditional
upon the furnishing of documents or the taking of any other actions by
the Seller or TMCC, the Seller or TMCC, as the case may be, shall
furnish such documents and take any such other actions as may be
required. A copy of any such document shall be sent to the
Representatives at the time it is sent to either Rating Agency.
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Section 6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Notes
will be subject to the accuracy of the respective representations and
warranties on the part of the Seller and TMCC herein, to the accuracy of the
statements of the Seller and TMCC made in any officers' certificates pursuant
to the provisions hereof, to the performance by the Seller and TMCC of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) On (i) the date of this Agreement, the Representatives
and the Seller shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of
this Agreement, shall be on or prior to the date of this Agreement
or, if such Effective Time is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the registration statement
to be filed shortly prior to such Effective Time), of
PriceWaterhouse Coopers LLP confirming that they are independent
public accountants with respect to the Seller and TMCC within the
meaning of the Act and the Rules and Regulations and with respect to
certain information contained in the Registration Statements, the
Term Sheet and the Prospectus and substantially in the form of the
draft to which the Representatives previously have agreed and
otherwise in form and in substance satisfactory to the
Representatives and counsel for the Underwriters and (ii) the
Closing Date, the Representatives and the Seller shall have received
(x) a letter, dated as of the Closing Date, from PriceWaterhouse
Coopers LLP, updating the letter referred to in clause (i) above, in
form and substance satisfactory to the Representatives and counsel
for the Representatives and (y) a letter dated, as of the Closing
Date, from PriceWaterhouse Coopers LLP relating to certain
agreed-upon procedures regarding data integrity in form and
substance satisfactory to the Representatives and counsel for the
Representatives (which letter may be included as part of the letter
referred to in clause (x)). As used in this subsection, (i)
"Registration Statements" shall mean (A) the Initial Registration
Statement as proposed to be amended by the amendment or
post-effective amendment to be filed shortly prior to its Effective
Time, if the Effective Time of the Initial Registration Statement is
subsequent to the date of this Agreement, or (B) the Initial
Registration Statement and the additional registration statement as
proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective
Time, if the Effective Time is prior to the execution and delivery
of this Agreement but the Effective Time of the Additional
Registration Statement is subsequent to such execution and delivery,
and (ii) "Prospectus" shall mean the prospectus, with respect to the
Notes, together with any supplement thereto.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 p.m., New York time, on the date of this Agreement or such
later date as shall have been consented to by the Representatives.
If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement, the
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Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 5(a) hereof. If the
Effective Time of the Additional Registration Statement (if any) is
not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 p.m., New
York time, on the date of this Agreement or, if earlier, the time
the Prospectus is printed and distributed to any Underwriter, or
shall have occurred at such later date as shall have been consented
to by the Underwriter. Prior to the Closing Date, no stop order
suspending the effectiveness of any Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any material adverse
change in the condition, financial or otherwise, or in the business
affairs or business prospects of the Seller, TMCC or the Trust
which, in the reasonable judgment of the Representatives (after
consultation with the Underwriters), materially impairs the
investment quality of the Notes, or makes it impractical or
inadvisable to proceed with completion of the sale of and payment
for the Notes; (ii) any downgrading in the rating of any debt
securities of TMCC or Toyota Motor Sales, U.S.A., Inc. or any of
their direct or indirect subsidiaries by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such
debt securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange or setting of minimum prices for trading on such exchange;
(iv) any suspension of trading of any securities of TMCC on any
exchange or in the over-the-counter market, (v) any banking
moratorium declared by federal, California or New York authorities;
or (vi) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by the United
States Congress or any other substantial national or international
calamity or emergency if, in the reasonable judgment of the
Representatives (after consultation with the Underwriters), the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Notes.
(d) The Representatives shall have received:
(1) The favorable opinion, dated the Closing Date, of O'Melveny &
Myers LLP, special counsel for the Seller and TMCC, in form and scope
satisfactory to the Representatives, to the effect that:
(i) Each Basic Document has been duly authorized by all
necessary corporate action on the part of each of the Seller and
TMCC and has been executed and delivered by each of the Seller and
TMCC.
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(ii) Assuming the due authorization, execution and delivery
thereof by the Owner Trustee and Trustee, each of the Sale and
Servicing Agreement, the Indenture and the Receivables Purchase
Agreement constitute a legally valid and binding obligation of each
of the Seller and TMCC enforceable in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect, relating to or affecting creditors' rights generally and by
the application of general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific
performance, injunctive relief or any other equitable remedy
(regardless of whether enforcement is considered in a proceeding at
law or in equity).
(iii) Assuming the Notes have been duly and validly
authorized and, when executed and authenticated by the Owner Trustee
as specified in the Indenture and delivered against payment of the
consideration specified in this Agreement the Notes will be legally
valid and binding obligations of the Trust, and entitled to the
benefits of the Indenture enforceable in accordance with their
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect, relating to or affecting creditors' rights generally and by
the application of general principles of equity, including, without
limitation concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific
performance, injunctive relief or any other equitable remedy
(regardless of whether enforcement is considered in a proceeding at
law or in equity).
(iv) Assuming the due authorization, execution and delivery
thereof by the Owner Trustee and Trustee, each of the Sale and
Servicing Agreement and the Indenture constitute the valid and
binding obligation of the Trust enforceable against the Trust in
accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect, relating to or affecting creditors'
rights generally and by the application of general principles of
equity, including without limitation concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance, injunctive relief or any
other equitable remedy (regardless of whether enforcement is
considered in a proceeding at law or in equity).
(v) Neither the Seller nor the Trust is required to be
registered under the Investment Company Act.
(vi) With respect to Financed Vehicles in the State of
California, no filing or other action other than (A) the filing of a
UCC financing statement naming TMCC as transferor and the Seller as
the transferee, and (B) the filing of a UCC financing statement
naming the Seller as the transferor and the Owner Trustee as
transferee, which filings have been completed, is necessary to
perfect the transfer and assignment of TMCC's
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security interest in such Financed Vehicles to the Seller, and the
Seller's security interest in such Financed Vehicles to the Owner
Trustee, respectively, and as a result of such transfer and
assignment and filing of such financing statements, the Trustee has
a first perfected security interest in such Financed Vehicles,
except that so long as TMCC is named as the legal owner and lien
holder on a certificate of title, TMCC has the ability to release
the security interest in the Financed Vehicle or to assign it to
another party.
(vii) The Trust will not be classified as an association
taxable as a corporation or as a publicly traded partnership for
federal or California income and franchise tax purposes and for
federal income tax purposes the Class A Notes will be characterized
as debt and the Class B Notes and Class C Notes should be
characterized as debt.
(viii) The statements in the Prospectus Supplement under
"Summary--Tax Status" and "--ERISA Considerations", and "ERISA
Considerations", and in the Base Prospectus under the "Summary--Tax
Status" and "--ERISA Considerations", "Certain Federal Income Tax
Consequences", "Certain Legal Aspects of the Receivables", and
"ERISA Considerations", to the extent that they constitute matters
of law or legal conclusions relating to the federal laws of the
United States or the laws of the States of California or New York
with respect thereto, have been reviewed by such counsel and are
correct in all material respects.
(ix) This Agreement has been duly authorized by all
necessary corporate action on the part of each of the Seller and
TMCC, and has been duly executed and delivered by each of the Seller
and TMCC.
(x) No order, consent, permit or approval of any
California, New York or federal governmental authority that such
counsel has, in the exercise of customary professional diligence,
recognized as applicable to TMCC or the Seller, or to the
transactions of the type contemplated by this Agreement or any Basic
Document, including the issuance of the Notes, is required on the
part of TMCC or the Seller for the execution and delivery of, and
the performance of its obligations under this Agreement and any
Basic Document, except for such as have been obtained or made and
are in full force and effect as of the Closing Date; provided that
such counsel need express no opinion with respect to any orders,
consents, permits, approvals, filings or licenses related to the
authority to sell motor vehicles, originate retail installment sales
contracts or service retail installment sales contract or as may be
required by any regional or local governmental authority or under
any foreign or state securities laws.
(xi) To such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened, to which the
Seller or TMCC is a party or of which any property of the Seller or
TMCC is the subject required to be disclosed in the Registration
Statements, other than those disclosed therein, (A) asserting the
invalidity of this Agreement, any Basic Document or the Notes, (B)
seeking to prevent the issuance of
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the Notes or the consummation of any of the transactions
contemplated by this Agreement or the Basic Documents, (C) that
would, if determined adversely to TMCC or the Seller, materially and
adversely affect the performance by the Seller or TMCC of its
respective obligations under, or the validity or enforceability of,
this Agreement, either Basic Document or the Notes or (D) seeking
adversely to affect the federal income tax attributes of the Notes
as described in the Base Prospectus under the heading "Certain
Federal Income Tax Consequences" or the California income tax
attributes of the Notes.
(xii) At the time of execution and delivery of (A) the
Receivables Purchase Agreement, TMCC had the corporate power and
corporate authority to transfer the Receivables and such other
property being transferred to the Seller pursuant to the Receivables
Purchase Agreement, and (B) the Sale and Servicing Agreement, the
Seller had the corporate power and corporate authority to transfer
the Receivables and such other property being transferred to the
Owner Trustee pursuant to the Sale and Servicing Agreement and to
cause the transfer of the Notes to the Underwriters.
(xiii) The Notes and the Basic Documents each conform in
all material respects with the respective descriptions thereof
contained in the Registration Statements and the Prospectus.
(xiv) Neither the Trust Agreement nor the Sale and
Servicing Agreement need to be qualified under the 1939 Act.
(xv) The Receivables constitute "chattel paper" as such
term is defined in the California Uniform Commercial Code.
(xvi) The Initial Registration Statement and any Additional
Registration Statement filed with the Commission has been declared
effective under the Act, and, to such counsel's knowledge upon due
inquiry, no stop order suspending the effectiveness of a
Registration Statement has been issued under the Act or proceedings
therefor initiated or threatened by the Commission, and each
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of its respective effective or issue date,
appeared on its face to be appropriately responsive in all material
respects to the applicable requirements of the Act and the Rules and
Regulations, except that such counsel need not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus
except as contemplated by paragraph (vii) of this Section to the
extent set forth therein; such counsel need not opine as to any
financial statements or other financial, numerical or statistical
data contained or incorporated by reference therein; and such
counsel need not opine as to the Trustee's Statement of
Qualification on Form T-1.
(xvii) The form of the Indenture has been qualified under
the 1939 Act.
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(xviii) The Seller has duly authorized and executed the
written order to the Owner Trustee to execute and deliver the issuer
order to the Trustee to authenticate the Notes.
In addition, such counsel shall state that such counsel has
participated in conferences with the officers and other representatives of
TMCC and the Seller, representatives of the independent public accountants
therefor and the Underwriters, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although
such counsel is not passing upon, and does not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained therein
and has not made any independent check or verification thereof, during the
course of such participation (relying in its determination as to materiality
to an extent upon the statements of officers and other representatives of
TMCC and the Seller), such counsel does not believe that any Registration
Statement, at the related Effective Time, or any such amendment or
supplement, as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus, at the date of the Prospectus Supplement (or any such
amendment or supplement, as of its respective date) or at the Closing Date
included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no opinion or
belief as to any financial statements or other financial, numerical or
statistical data contained or incorporated by reference in any Registration
Statement or the Prospectus or the Trustee's Statement of Qualification on
Form T-1.
Such counsel's opinions as to enforceability shall be subject to the
unenforceability under certain circumstances: (1) of waivers of rights
granted by law where the waivers are against public policy or prohibited by
law; (2) of waivers of vaguely or broadly stated rights or future rights; (3)
of any indemnification provisions; (4) of any provisions that rights or
remedies are not exclusive, that every right or remedy is cumulative and may
be exercised in addition to or with any other right or remedy or that the
election of some particular remedy or remedies does not preclude recourse to
one or more other remedies; (5) the unenforceability under certain
circumstances of choice of law provisions; and (6) the unenforceability under
certain circumstances of severability provisions, provided that such
enforceability will not, subject to the other exceptions, qualifications and
limitations contained in such opinion, render the relevant agreements invalid
as a whole or substantially interfere with the substantial realization of the
principal benefits that such agreements purport to provide (except for the
economic consequences of procedural or other delay).
(2) The favorable opinion, dated the Closing Date, of Alan
F. Cohen, Esq., General Counsel of TMCC and counsel to the Seller,
in form and scope to the Representatives and their counsel, to the
effect that:
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(i) Each of the Seller and TMCC is a corporation duly
organized, existing and in good standing under the laws of
the State of California.
(ii) Each of the Seller and TMCC is duly incorporated
or qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which their
respective ownership or lease of substantial properties or
the conduct of their respective businesses requires such
qualification and in which the failure to so qualify and be
in good standing would materially adversely affect their
respective businesses or financial condition.
(iii) To such counsel's knowledge (A) there are no
legal or governmental proceedings pending or threatened
against TMCC or in connection with the origination and
servicing of the Receivables by TMCC which are required to
be disclosed in the Registration Statements, other than
those disclosed therein, (B) there are no legal or
governmental proceedings to which TMCC is a party or to
which any of its property is subject which are not
described in TMCC's Annual Report on Form 10-K for the year
ended September 30, 1998, or its Quarterly Reports for the
quarter ended March 31, 1999, which are required to be
disclosed therein other than those disclosed therein and
(C) there are no pending legal or governmental proceedings
to which the Seller is a party or to which any of its
property is subject.
(iv) To such counsel's knowledge (A) no default
exists in the due performance or observance by TMCC of any
obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement note,
lease or other instrument to which it is a party or by
which it may be bound, which default would have a material
adverse effect on the financial condition, earnings,
business affairs, business prospects, properties or results
of operations of TMCC and its subsidiaries considered as
one enterprise, and (B) other than this Agreement, and the
Basic Documents and the corresponding agreements in
connection with the Toyota Auto Receivables 1995-A Grantor
Trust, the Toyota Auto Receivables 1996-A Grantor Trust and
the Toyota Auto Receivables 1997-A Grantor Trust and the
subordinated notes payable to TMCC the Seller is not a
party to any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument.
(v) The transfer of the Receivables and the other
property of the Trust transferred by TMCC to the Seller
pursuant to the Receivables Purchase Agreement, the
execution delivery and performance of the Basic Documents
and this Agreement and the consummation of the transactions
herein and therein contemplated will not (A) conflict with
or constitute a breach of, or default under, or result in
the creation or imposition of any Lien upon any property or
assets of TMCC or any of its subsidiaries pursuant to, any
material contract, indenture,
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mortgage, loan agreement, note, lease or other instrument
known to such counsel to which TMCC or any of its
subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of TMCC
or any of its subsidiaries is subject, (B) result in any
violation of the provisions of the charter or bylaws of
TMCC or (C) to such counsel's knowledge, result in any
violation of any applicable law, administrative regulation
or administrative or court decree.
(vi) The transfer of the Receivables to the Owner
Trustee acting on behalf of the Trust the assignment of the
security interest of the Seller in the Financed Vehicles,
the issuance and sale of the Notes, and the execution and
delivery of this Agreement, the Basic Documents and the
Notes, and the consummation of the transactions
contemplated herein and therein will not (A) conflict with
or constitute a breach of, or default under, or result in
the creation or imposition of any Lien upon any property or
assets of the Seller pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument
to which the Seller is a party or by which it may be bound,
or to which any of the property or assets of the Seller is
subject, (B) result in any violation of the provisions of
the charter or bylaws of the Seller or (C) to such
counsel's knowledge, result in any violation of any
applicable law, administrative regulation or administrative
or court decree.
(vii) Each of the Seller and TMCC has obtained all
necessary licenses and approvals under the federal law of
the United States and the laws of the State of California
to conduct their respective businesses in which the failure
to obtain such licenses and approvals would render any
Receivable or any other material part of the corpus of the
Trust unenforceable or would materially and adversely
affect the ability of either the Seller or TMCC to perform
any of their respective obligations under, or the
enforceability of, any of the Basic Documents.
(viii) Such counsel is familiar with the standard
operating procedures of TMCC relating to the acquisition by
TMCC of a first perfected security interest in the
automobiles and/or light duty trucks financed by the retail
installment sale contracts purchased by TMCC in the
ordinary course of its business and relating to the sale to
TMCC of such contracts and such security interests in the
automobiles or light duty trucks financed thereby in the
ordinary course of its business. Assuming that such
standard procedures are followed with respect to the
perfection of security interests in the Financed Vehicles
(and such counsel has no reason to believe that TMCC has
not or will not continue to follow its standard procedures
in connection with the perfection of first perfected
security interests in the Financed Vehicles), TMCC has
acquired a first perfected security interest in the
Financed Vehicles.
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(3) The favorable opinion, dated the Closing Date, of
Sheppard, Mullin, Richter & Hampton, special California counsel to the
Seller and TMCC, in form and scope satisfactory to the Representatives
and their counsel, to the effect that, assuming the due authorization,
execution and delivery thereof by the parties thereto, each of the
Receivables in the form attached to such opinion constitutes the valid,
binding and enforceable agreement of the parties thereto; and such
Receivables comply as to content and form with all applicable state
laws and federal disclosure laws relating to consumer credit, including
without limitation, consumer protection laws.
(4) Reliance letters relating to each opinion rendered to
either Rating Agency by any counsel for the Seller, TMCC, the Trust or
any other party to any of the Basic Documents.
(5) The favorable opinions, dated the Closing Date, of Dorsey
& Whitney LLP, counsel to the Owner Trustee and Trustee, in form and
scope satisfactory to the Representatives and counsel for the
Underwriters, to the effect that:
(i) U.S. Bank has been duly incorporated and is
validly existing as a national banking association, in good
standing under the laws of United States with full power and
authority (corporate and other) to own its properties and
conduct its business, as presently conducted by it, and to
enter into and perform its obligations as Owner Trustee and
Trustee under each Basic Document to which U.S. Bank is a
party.
(ii) Each Basic Document to which U.S. Bank is a
party has been duly authorized, executed and delivered by
U.S. Bank and, assuming the due authorization, execution
and delivery thereof by the other parties thereto, will
constitute a legal, valid and binding obligation of U.S.
Bank enforceable in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar
laws affecting enforcement of creditors rights generally
and by general principals of equity (regardless of whether
such enforceability is considered in a proceeding in equity
and or at law).
(iii) Neither the execution nor delivery by U.S.
Bank of each Basic Document to which it is a party nor the
consummation of any of the transactions by U.S. Bank
contemplated thereby require the consent or approval of,
the giving of notice to, the registration with or the
taking of any other action with respect to, any
governmental authority or agency under any existing federal
or state law governing the banking or trust powers of U.S.
Bank.
(iv) The execution and delivery of each Basic
Document to which U.S. Bank is a party and the performance by
U.S. Bank of its terms do not conflict with
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or result in a violation of (A) any federal or state law or
regulation governing the banking or trust powers of U.S.
Bank, (B) the Articles of Association or By-Laws of U.S.
Bank, or (C) to the best knowledge of such counsel, any
indenture, lease, or material agreement to which U.S. Bank
is a party or to which its assets are subject.
(v) Each of the Notes has been duly executed and
delivered by the Owner Trustee, on behalf of the Trust and has
been authenticated by the Trustee in accordance with the terms
of the Indenture.
(6) The favorable opinion of Stroock & Stroock & Lavan LLP,
counsel for the Underwriters, dated the Closing Date, with respect to
the validity of the Notes and such other related matters as the
Representatives shall request and the Seller and TMCC shall have
furnished or caused to be furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass
upon such matters.
(7) The favorable opinion of O'Melveny & Myers LLP, special
counsel to the Trust, dated the Closing Date, in form and scope
satisfactory to the Representatives and counsel for the Underwriters,
regarding the creation, attachment and perfection of a first priority
security interest in the Receivables and the property held in the
Reserve Account in favor of the Trustee on behalf of the Noteholders.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters. In rendering such
opinion, such counsel may state that they express no opinion as to the
laws of any jurisdiction other than the federal law of the United
States of America and the laws of the State of New York and the State
of California. To the extent any portion of such opinion is governed by
the laws of the State of Delaware, such opinion will be given by
Richards, Layton & Finger. To the extent any portion of such opinion is
governed by the laws of the State of New York or California, such
opinion will be given by O'Melveny & Myers LLP.
(8) The favorable opinion of O'Melveny & Myers LLP, dated the
Closing Date, in form and scope satisfactory to the Representatives and
counsel to the Underwriters with respect to (i) the consolidation of
the assets and liabilities of the Seller with those of TMCC under the
doctrine of substantive consolidation, (ii) the creation of (x) a "true
sale" with respect to the transfer of the Receivables from TMCC to the
Seller and with respect to the transfer of the Receivables from the
Seller to the Trust or (y) with respect to the transfer of the
Receivables to the Trust, a valid and binding security interest in the
Receivables and (iii) such other related matters as the Representatives
shall reasonably require and the Seller shall have furnished or caused
to be furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
Such opinions shall be limited to the laws of the State of New York and
United States federal law.
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(9) The favorable opinion of counsel to the Delaware Trustee,
dated the Closing Date in form and scope satisfactory to the
Representatives and counsel for the Underwriters, to the effect that:
(i) The Delaware Trustee has been duly organized as a
national banking association and is validly existing as a
national banking association in good standing under the laws
of the United States of America.
(ii) The Delaware Trustee has the requisite power and
authority to execute, deliver and perform its obligations
under the Indenture and has taken all necessary action to
authorize the execution, delivery and performance by it of the
Indenture.
(iii) The Trust Agreement has been duly executed and
delivered by the Delaware Trustee and constitutes a legal,
valid and binding obligation of the Delaware Trustee,
enforceable against the Delaware Trustee in accordance with
its respective terms, except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium,
or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(10) The favorable opinion of Richards, Layton & Finger,
special Delaware counsel for the Trust, dated the Closing Date, in form
and scope satisfactory to the Representatives and counsel for the
Representatives, to the effect that:
(i) The Trust Agreement constitutes the valid and
binding obligation of the Owner Trustee and the Seller
enforceable against the Owner Trustee and the Seller in
accordance with its terms subject to (i) applicable
bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, and (ii) principles of equity (regardless of
whether considered and applied in a proceeding in equity or at
law).
(ii) The Certificate of Trust has been duly filed
with the Secretary of State. The Trust has been duly formed
and is validly existing as a business trust under the Delaware
Business Trust Act. The Trust has the power and authority
under the Trust Agreement and the Delaware Business Trust Act
to execute and deliver the Indenture and the Sale and
Servicing Agreement, to issue the Notes and to pledge the
Trust Estate to the Trustee as security for the Notes.
(iii) To the extent that Article 9 of the Uniform
Commercial Code as in effect in the State of Delaware (the
"Delaware UCC") is applicable (without
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<PAGE>
regard to conflicts of laws principles), and assuming that
the security interest created by the Indenture in the
Receivables has been duly created and has attached, upon
the filing of a UCC-1 financing statement with the
Secretary of State of the State of Delaware the Trustee
will have a perfected security interest in such Receivables
and the proceeds thereof, and such security interest will
be prior to any other security interest that is perfected
solely by the filing of financing statements under the
Delaware UCC, excluding purchase money security interests
under ss. 9-312(4) of the UCC and temporarily perfected
security interests in proceeds under ss. 9-306(3) of the
Delaware UCC.
(iv) No re-filing or other action is necessary under
the Delaware UCC in order to maintain the perfection of such
security interest except for the filing of continuation
statements at five year intervals.
(v) Under ss. 3805(b) of the Business Trust Act, no
creditor of any Certificateholder or Noteholder shall have any
right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of the Trust
except in accordance with the terms of the Trust Agreement.
(vi) Under ss. 3805(c) of the Business Trust Act, and
assuming that the Sale and Servicing Agreement conveys good
title to the Receivables to the Trust as a true sale and not
as a security arrangement, the Trust rather than the
Certificateholders or Noteholders is the owner of the
Receivables.
(vii) The execution and delivery by the Owner Trustee
and Delaware Trustee of the Trust Agreement and, on behalf of
the Trust, the Indenture and the Sale and Servicing Agreement
do not require any consent, approval or authorization of, or
any registration or filing with, any governmental authority of
the State of Delaware, except for the filing of the
Certificate of Trust with the Secretary of State.
(viii) Neither the consummation by the Owner Trustee
or Delaware Trustee of the transactions contemplated in the
Trust Agreement or, on behalf of the Trust, the transactions
contemplated in the Indenture and the Sale and Servicing
Agreement nor the fulfillment of the terms thereof by the
Owner Trustee will conflict with or result in a breach or
violation of any law of the State of Delaware applicable to
the Trust.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Representatives. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of Delaware.
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<PAGE>
(e) The Representatives shall have received a certificate,
dated the Closing Date, signed by the President or any Vice President
and a principal financial or accounting officer of (i) the Seller in
which such officers shall state that, to the best of their knowledge
after reasonable investigation, (A) the representations and warranties
of the Seller in this Agreement are true and correct, (B) the Seller
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, (C) no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of their knowledge, are
contemplated by the Commission, (D) the Additional Registration
Statement, if any, satisfying the requirements of Rule 462(b)(1) and
Rule 462(b)(3) was filed in accordance with Rule 462(b) (including
payment of the applicable filing fee in accordance with Rule 111(a) or
Rule 111(b) under the Act) prior to the time the Prospectus was printed
or distributed to the Underwriter and (E) subsequent to the date of
this Agreement, there has been no material adverse change in the
condition, financial or otherwise, or in the business affairs or
business prospects of the Seller except as set forth or contemplated in
the Prospectus and (ii) TMCC in which such officers shall state that,
to the best of their knowledge after reasonable investigation, (A) the
representations and warranties of TMCC in this Agreement are true and
correct, (B) TMCC has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder and (C)
subsequent to the date of this Agreement there has been no material
adverse change in the condition, financial or otherwise, or in the
business affairs or business prospects of TMCC which would materially
and adversely affect the performance by TMCC of its obligations under
this Agreement or any of the Basic Documents.
(f) The Class A-1 Notes shall be rated "P-1" by Moody's and
"A-1+" by Standard & Poor's. The Class A-2 Notes shall be rated "Aaa"
by Moody's and "AAA" by Standard & Poor's. The Class A-3 Notes shall be
rated "Aaa" by Moody's and "AAA" by Standard & Poor's.
(g) The Class B Notes shall be rated at least "A2" by Moody's
and at least "A" by Standard & Poor's.
(h) The Class C Notes shall be rated at least "Baa3" by
Moody's and at least "BBB" by Standard & Poor's.
(i) The Representatives shall have received evidence
satisfactory to counsel for the Representatives that the Owner Trustee
and Trust have received all necessary licenses in the State of
Pennsylvania to own the Receivables.
(j) On the Closing Date, the Representatives and counsel for
the Underwriters shall have been furnished with such documents and
opinions as they reasonably may
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<PAGE>
require for the purpose of enabling them to pass upon the issuance
and sale of the Notes as herein contemplated and related proceedings
or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Seller
and TMCC in connection with the issuance and sale of the Notes as
herein contemplated shall be in form and substance satisfactory to the
Representatives and counsel for the Underwriters.
Section 7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Seller and TMCC will, jointly and severally, indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several as incurred, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Term Sheet, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that neither the Seller nor TMCC will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Seller or TMCC by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information in the Prospectus appearing in the first textual paragraphs under
the tables on page S-46 and the first textual paragraph under the first table on
page S-47, the second table on page S-47 insofar as it describes the Selling
Concessions and the Reallowances, the last three paragraphs on page S-47 and the
second sentence of the third paragraph on page S-48, under the caption
"Underwriting" (the "Underwriters' Information"); provided that neither TMCC nor
the Seller shall be liable under this subsection (a) to any Underwriter to the
extent that such losses, claims, damages or liabilities arose out of or are
based upon an untrue statement or omission made in any Term Sheet that is
corrected in the Prospectus (or any amendment or supplement thereto) that has
been previously made available to such Underwriter if the person asserting such
loss, claim, damage or liability was not sent or given the Prospectus (or any
amendment or supplement thereto) on or prior to the confirmation of the sale of
the Notes.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless each of the Seller and TMCC, against any losses, claims,
damages or liabilities, joint or several as incurred, to which the Seller or
TMCC, may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus or any
amendment or supplement thereto, or arise out
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<PAGE>
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Seller or TMCC by such Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by such Underwriter
consists of such Underwriter's Underwriters' Information and will reimburse
any legal or other expenses reasonably incurred by the Seller and TMCC in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent does not contain a statement as to or an
admission of fault, culpability, or a failure to act by or on behalf of any
indemnified party (unless such statement is agreed to by the indemnified party
in writing); provided, however, that in the event such settlement, compromise or
consent by the indemnifying party does not include an unconditional release of
each indemnified party from all liability arising out of any litigation,
investigation, proceeding or claim, the provisions of this Section with respect
to indemnification shall continue and survive.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Seller and TMCC
on
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<PAGE>
the one hand and the Class A Underwriters, the Class B Underwriters or the
Class C Underwriters, as applicable, on the other hand, from the offering of the
Notes or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Seller and TMCC on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Seller and TMCC on the one
hand and the Class A Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Seller and TMCC bear to the total underwriting
discounts and commissions received by the Class A Underwriters, the relative
benefits received by the Seller and TMCC on the one hand and the Class B
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Seller and TMCC bear to the total underwriting discounts and commissions
received by the Class B Underwriters and the relative benefits received by the
Seller and TMCC on the one hand and the Class C Underwriters and the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Seller and TMCC bear to the
total underwriting discounts and commissions received by the Class C
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Seller or TMCC or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Seller and TMCC under this Section shall be
in addition to any liability that the Seller or TMCC may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability that
the respective Underwriters my otherwise have and shall extend, upon the same
terms and conditions, to each director of the Seller or TMCC, to each officer of
the Seller or
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<PAGE>
TMCC who has signed any Registration Statement and to each person,
if any, who controls the Seller or TMCC within the meaning of the Act.
Section 8. DEFAULT OF UNDERWRITERS. If any Class A Underwriter or Underwriters
default in their obligations to purchase Notes hereunder and (i) the aggregate
principal amount of Class A-1 Notes (in the case of the Class A-1 Underwriters),
that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total principal amount of the Class A-1 Notes, (ii)
the aggregate principal amount of Class A-2 Notes (in the case of the Class A-2
Underwriters) that such defaulting Underwriter or Underwriters agreed but failed
to purchase does not exceed 10% of the total principal amount of the Class A-2
Notes, (iii) the aggregate principal amount of Class A-3 Notes (in the case of
the Class A-3 Underwriters) that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Class A-3 Notes, (iv) the aggregate principal amount of Class B Notes (in
the case of the Class B Underwriters) that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Class B Notes and (v) the aggregate principal amount of
Class C Notes (in the case of the Class C Underwriters) that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of Class C Notes, the Representatives may make
arrangements satisfactory to the Seller and TMCC for the purchase of such Class
A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class B Notes or Class C Notes, as
the case may be, by other persons, including any of the Underwriters, but if no
such arrangements are made by the Closing Date the non-defaulting Class A-1
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Class A-1 Notes, the non-defaulting Class
A-2 Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Class A-2 Notes, the non-defaulting Class
A-3 Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Class A-3 Notes, the non-defaulting Class
B Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Class B Notes, and the non-defaulting
Class C Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Class C Notes, in each case
that such defaulting Underwriters agreed but failed to purchase. If any such
default or defaults occur and such default or defaults exceed 10% of the total
principal amount of the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class B Notes or the Class C Notes, as the case may be, and
arrangements satisfactory to the Seller and TMCC for the purchase of such Notes
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Seller or TMCC, except as provided in Section 9 hereof. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
Section 9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller and TMCC or their respective officers and of the
several Underwriters set forth in or made pursuant
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<PAGE>
to this Agreement will remain in full force and effect, regardless of any
investigation or statement as to the results thereof, made by or on behalf of
any Underwriter, the Seller, TMCC or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If this Agreement is terminated pursuant to
Section 8 hereof or if for any reason the purchase of the Notes by the
Underwriters is not consummated, the Seller and TMCC shall remain responsible
for the expenses to be paid or reimbursed by the Seller and TMCC pursuant to
Section 5(i) hereof and the respective obligations of the Seller, TMCC and
the Underwriters pursuant to Section 7 hereof shall remain in effect. If the
purchase of the Notes by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8 hereof or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 6(c) hereof, the Seller and TMCC will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements
of counsel) reasonably incurred by it in connection with the offering of the
Notes.
Section 10. NOTICES. All communications hereunder will be in writing
and, if sent to the Representatives or the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the Representatives c/o Goldman, Sachs
& Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department and to Merrill Lynch, Pierce, Fenner & Smith Incorporated., 250 Vesey
Street, New York, New York 10285, Attention Fixed Income Syndicate; if sent to
the Seller, will be mailed, delivered or telegraphed and confirmed to it at
Toyota Motor Credit Receivables Corporation, 19001 South Western Avenue,
Torrance, California 90501, Attention: Lloyd Mistele -- President; or if sent to
TMCC, will be mailed, delivered or telegraphed and confirmed to it at Toyota
Motor Credit Corporation, 19001 South Western Avenue, Torrance, California
90501, Attention: George Borst -- Senior Vice President and General Manager.
Notwithstanding the foregoing, any notice to an Underwriter pursuant to Section
7 hereof will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
Section 11. SUCCESSORS. Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
Section 12. REPRESENTATION OF REPRESENTATIVES. The Representatives
will act for the several Underwriters in connection with the transactions
described in this Agreement, and any action taken by the Representatives under
this Agreement will be binding upon all the Underwriters.
Section 13. REPRESENTATIONS AND WARRANTIES OF UNDERWRITERS. With
respect to any offers or sales of the Notes outside of the United States (and
solely with respect to any such offers and sales) each Underwriter severally and
not jointly makes the following representations and warranties:
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<PAGE>
(a) Each Underwriter represents and agrees that it will comply with
all applicable laws and regulations in each jurisdiction in which it purchases,
offers or sells Notes or possesses or distributes the Prospectus or any other
offering material and will obtain any consent, approval or permission required
by it for the purchase, offer or sale by it of Notes under the laws and
regulations in force in any jurisdiction, to which it is subject or in which it
makes such purchases, offers or sales and neither the Seller or TMCC shall have
any responsibility therefor;
(b) No action has been or will be taken by such Underwriter that would
permit a public offering of the Notes or possession, or distribution of any
offering material in relation to the Notes in any jurisdiction where action for
that purpose is required unless the Seller or TMCC has agreed to such actions
and such actions have been taken;
(c) Each Underwriter represents and agrees that it will not offer, sell
or deliver any of the Notes or distribute any such offering material in or from
any jurisdiction except under circumstances, which will result in compliance
with applicable laws and regulations and which will not impose any obligation on
the Seller or TMCC or the Underwriters; and
(d) Such Underwriter acknowledges that it is not authorized to give any
information or make any representations in relation to the Notes other than
those contained or incorporated by reference in the Prospectus for the Notes and
such additional information, if any, as the Seller or TMCC shall, in writing,
provide to and authorize such Underwriter so to use and distribute to actual and
potential purchasers of Notes; and
(e) Each Underwriter has complied and will comply with all applicable
provisions of the Financial Services Act 1986 ("FSA") with respect to anything
done by such Underwriter in relation to the Notes in, from or otherwise
involving the United Kingdom; and
(f) Each Underwriter will have only issued or passed on and will only
issue or pass on in the United Kingdom any document received by it in connection
with the issue of the Notes, to a person who is of a kind described in Article
11(3) of the FSA (Investment Advertisements) (Exemptions) Order 1996 or is a
person to whom such document may otherwise lawfully be issued or passed on.
Section 14. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
Section 15. APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
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<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us one of the counterparts hereof, whereupon it will
become a binding agreement between the Seller and TMCC and the Underwriters in
accordance with its terms.
Very truly yours,
TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION
By: /s/ Lloyd Mistele
----------------------------
Name: Lloyd Mistele
Title: President
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ George Borst
----------------------------
Name: George Borst
Title: Senior Vice President
and General Manager
The foregoing Underwriting Agreement
is hereby confirmed and accepted, as
of the date first above written:
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
---------------------------
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ Theodore F. Breck
--------------------------------
Name: Theodore F. Breck
Title: Director
Acting on behalf of themselves and as
the Representatives of the several
Underwriters
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<PAGE>
Schedule I-A-1
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF
CLASS A-1 UNDERWRITER CLASS A-1 NOTES
--------------------- -------------------
<S> <C>
Goldman, Sachs & Co................................... $ 151,500,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.... 151,500,000
-----------------------
Total......................... $ 303,000,000
=======================
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</TABLE>
<PAGE>
Schedule I-A-2
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF
CLASS A-2 UNDERWRITER CLASS A-2 NOTES
--------------------- -----------------------
<S> <C>
Goldman, Sachs & Co................................... $ 79,500,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.... $ 79,500,000
Bear, Stearns & Co. Inc............................... $ 25,000,000
Credit Suisse First Boston Corporation................ $ 25,000,000
Lehman Brothers Inc................................... $ 25,000,000
Morgan Stanley & Co. Incorporated..................... $ 25,000,000
Salomon Smith Barney Inc.............................. $ 25,000,000
-----------------------
Total......................... $ 284,000,000
=======================
</TABLE>
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<PAGE>
Schedule I-A-3
<TABLE>
<CAPTION>
Principal Amount of
Class A-3 Underwriter Class A-3 Notes
--------------------- -----------------------
<S> <C>
Goldman, Sachs & Co................................... $ 104,547,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.... $ 104,546,000
Bear, Stearns & Co. Inc............................... $ 25,000,000
Credit Suisse First Boston Corporation................ $ 25,000,000
Lehman Brothers Inc................................... $ 25,000,000
Morgan Stanley & Co. Incorporated..................... $ 25,000,000
Salomon Smith Barney Inc.............................. $ 25,000,000
-----------------------
Total......................... $ 334,093,000
=======================
</TABLE>
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<PAGE>
Schedule I-B
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF
CLASS B UNDERWRITER CLASS B NOTES
------------------- -----------------------
<S> <C>
Goldman, Sachs & Co................................... $ 13,227,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.... $ 13,227,000
-----------------------
Total......................... $ 26,454,000
=======================
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</TABLE>
<PAGE>
Schedule I-C
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF
CLASS C UNDERWRITER CLASS C NOTES
------------------- -----------------------
<S> <C>
Goldman, Sachs & Co................................... $ 7,214,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.... $ 7,215,000
----------------------
Total............................ $ 14,429,000
======================
</TABLE>
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