RECEIVABLES PURCHASE AGREEMENT
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
and
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
as Purchaser
Dated as of -
TABLE OF CONTENTS
Page
----
I. DEFINITIONS
SECTION 1.01 Definitions.............................................1
SECTION 1.02 Other Definitional Provisions...........................2
II. CONVEYANCE OF RECEIVABLES
SECTION 2.01 Conveyance of Receivables...............................2
SECTION 2.02 Representations and Warranties of the Seller and
the Purchaser...........................................3
SECTION 2.03 Representations and Warranties of the Seller as to
the Receivables.........................................6
SECTION 2.04 Covenants of the Seller................................10
III. PAYMENT OF RECEIVABLES PURCHASE PRICE
SECTION 3.01 Payment of Receivables Purchase Price..................11
IV. TERMINATION
SECTION 4.01 Termination............................................11
V. MISCELLANEOUS PROVISIONS
SECTION 5.01 Amendment..............................................11
SECTION 5.02 Protection of Right, Title and Interest to
Receivables............................................11
SECTION 5.03 Governing Law..........................................12
SECTION 5.04 Notices................................................12
SECTION 5.05 Severability of Provisions.............................12
SECTION 5.06 Assignment.............................................13
SECTION 5.07 Further Assurances.....................................13
SECTION 5.08 No Waiver; Cumulative Remedies.........................13
SECTION 5.09 Counterparts...........................................13
SECTION 5.10 Third-Party Beneficiaries..............................13
SECTION 5.11 Merger and Integration.................................13
SECTION 5.12 Headings...............................................14
SECTION 5.13 Indemnification........................................14
i
SECTION 5.14 Merger or Consolidation of, or Assumption of the
Obligations of, the Seller.............................14
Schedule A - Schedule of Receivables.......................................A-1
ii
RECEIVABLES PURCHASE AGREEMENT, dated as of -, between Toyota Motor Credit
Corporation, a California corporation, as seller, and Toyota Motor Credit
Receivables Corporation, a California corporation, as purchaser.
In consideration of the premises and mutual agreements herein contained,
each party agrees as follows for the benefit of the other party and for the
benefit of the Trustee:
ARTICLE I.
DEFINITIONS
1.01 Definitions. Whenever used in this Agreement, the following words and
phrases shall have the following meanings:
"Agreement" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Closing Date" shall mean -.
"Cutoff Date" shall mean -.
"Deferred Prepayment" means, with respect to a Precomputed Receivable and
a Collection Period, the aggregate amount, if any, of Payments Ahead remitted to
the Servicer in respect of such Receivable during one or more prior Collection
Periods and currently held by the Servicer or in the Payahead Account.
["Pooling and Servicing Agreement" shall mean the Pooling and Servicing
Agreement dated as of - by and among Toyota Motor Credit Receivables
Corporation, as seller, Toyota Motor Credit Corporation, as servicer, and the
Trustee.]
"Purchaser" shall mean Toyota Motor Credit Receivables Corporation, in its
capacity as purchaser of the Receivables under this Agreement, and its
successors and assigns.
"Receivable" means any retail installment sale contract executed by an
Obligor in respect of a Financed Vehicle, and all proceeds thereof and payments
thereunder, which Receivable shall be identified in the Schedule of Receivables.
"Receivables Purchase Price" shall mean $-.
"Released Administrative Amount" means, with respect to a Distribution
Date and to an Administrative Receivable, the Deferred Prepayment, if any, for
such Administrative Receivable.
"Released Warranty Amount" means, with respect to a Distribution Date and
to a Warranty Receivable, the Deferred Prepayment, if any, for such Warranty
Receivable.
1
["Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement dated as of - by and among Toyota Motor Credit Receivables
Corporation, as seller, Toyota Motor Credit Corporation, as servicer, and the
Trustee.]
"Seller" shall mean Toyota Motor Credit Corporation, in its capacity as
seller of the Receivables under this Agreement, and its successors and assigns.
"Schedule of Receivables" means the schedule of receivables attached as
Schedule A hereto.
["Trust Agreement" means the Trust Agreement dated as of - by and between
Toyota Motor Receivables Corporation, as seller, and -, as trustee.]
"Trustee" shall mean -, as trustee under the [Pooling and Servicing
Agreement][Trust Agreement], or any successor trustee thereunder.
"Warranty Receivable" means a Receivable purchased by the Seller pursuant
to Section 2.03(c).
1.02 Other Definitional Provisions.
(a) All capitalized terms not otherwise defined in this Agreement
shall have the defined meanings used in the [Pooling and Servicing
Agreement][Sale and Servicing Agreement or Trust Agreement, as the case may be].
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section, subsection
and Schedule references contained in this Agreement are references to Sections,
subsections and Schedules in or to this Agreement unless otherwise specified;
and the word "including" means including without limitation.
ARTICLE II.
CONVEYANCE OF RECEIVABLES
2.01 Conveyance of Receivables.
(a) Subject to the terms and conditions of this Agreement, on the
Closing Date the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, without recourse (subject to the Seller's
obligations hereunder):
(i) all right, title and interest of the Seller in and to the
Receivables listed in the Schedule of Receivables and all monies due
thereon or paid thereunder or in respect thereof (including proceeds
of the repurchase of Receivables by the Seller pursuant to Section
2.03(c)) on or after the Cutoff Date;
2
(ii) the interest of the Seller in the security interests in
the Financed Vehicles granted by the Obligors pursuant to the
Receivables and any accessions thereto;
(iii) the interest of the Seller in any proceeds of any
physical damage insurance policies covering Financed Vehicles and in
any proceeds of any credit life or credit disability insurance
policies relating to the Receivables or the Obligors;
(iv) the interest of the Seller in any Dealer Recourse;
(v) the right of the Seller to realize upon any property
(including the right to receive future Liquidation Proceeds) that
shall have secured a Receivable and have been repossessed by or on
behalf of the Trustee; and
(vi) all proceeds of the foregoing.
(b) In connection with the foregoing conveyance, the Seller
agrees to record and file, at its own expense, a financing statement with
respect to the Receivables necessary to provide third parties with notice of the
conveyance hereunder and to perfect the sale of the Receivables to the
Purchaser, and the proceeds thereof (and any continuation statements as are
required by applicable state law), and to deliver a file-stamped copy of each
such financing statement (or continuation statement) or other evidence of such
filings (which may, for purposes of this Section, consist of telephone
confirmation of such filing with the file stamped copy of each such filing to be
provided to the Purchaser in due course), as soon as is practicable after
receipt by the Seller thereof.
The parties hereto intend that the conveyance hereunder be a sale. In the
event that the conveyance hereunder is not for any reason considered a sale, all
filings described in the foregoing paragraph shall give the Purchaser a first
priority perfected security interest in, to and under the Receivables, other
property conveyed hereunder and all proceeds of any of the foregoing and that
this Agreement constitute a security agreement under applicable law.
In connection with the foregoing conveyance, the Seller further agrees, at
its own expense, on or prior to the Closing Date (i) to annotate and indicate in
its computer files that the Receivables have been transferred to the Purchaser
pursuant to this Agreement, (ii) to deliver to the Purchaser a computer file or
printed or microfiche list containing a true and complete list of all such
Receivables, identified by account number and by the Principal Balance of each
Receivable as of the Cutoff Date, which file or list shall be marked as Schedule
A to this Agreement and is hereby incorporated into and made a part of this
Agreement and (iii) to deliver the Receivable Files to or upon the order of the
Purchaser.
2.02 Representations and Warranties of the Seller and the Purchaser.
(a) The Seller hereby represents and warrants to the Purchaser as of
the date of this Agreement and the Closing Date that:
3
(i) Organization and Good Standing. The Seller shall have been
duly organized and shall be validly existing as a corporation in
good standing under the laws of the State of California, with
corporate power and authority to own its properties and to conduct
its business as such properties shall be currently owned and such
business is presently conducted, and had at all relevant times, and
shall now have, corporate power, authority and legal right to
acquire, own and sell the Receivables.
(ii) Due Qualification. The Seller shall be duly qualified to
do business as a foreign corporation in good standing, and shall
have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Seller shall have the corporate
power and authority to execute and deliver this Agreement and to
carry out its terms; and the execution, delivery and performance of
this Agreement shall have been duly authorized by the Seller by all
necessary corporate action.
(iv) Binding Obligation. This Agreement shall constitute a
legal, valid and binding obligation of the Seller enforceable in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights generally or by general
principles of equity.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof shall not conflict with, result in any breach of any of the
terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the Seller, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice or
lapse of time) a default under, any indenture, agreement or other
instrument to which the Seller is a party or by which it shall be
bound; nor result in the creation or imposition of any lien upon any
of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Agreement); nor
violate any law or, to the best of the Seller's knowledge, any
order, rule or regulation applicable to the Seller of any court or
of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Seller or its properties; which breach, default, conflict, lien or
violation would have a material adverse effect on the earnings,
business affairs or business prospects of the Seller.
(vi) No Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending, or to the Seller's knowledge, threatened,
against or affecting the Seller: (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely effect
the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement.
4
(b) The Purchaser hereby represents and warrants to the Seller as of
the date of this Agreement and the Closing Date that:
(i) Organization and Good Standing. The Purchaser shall have
been duly organized and shall be validly existing as a corporation
in good standing under the laws of the State of California, and has
corporate power and authority to own its properties and to conduct
its business as such properties shall be currently owned and such
business is presently conducted, and had at all relevant times, and
shall now have, corporate power, authority and legal right to
acquire and own the Receivables.
(ii) Due Qualification. The Purchaser shall be duly qualified
to do business as a foreign corporation in good standing, and shall
have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Purchaser shall have the
corporate power and authority to execute and deliver this Agreement
and to carry out its terms; and the execution, delivery and
performance of this Agreement shall have been duly authorized by the
Purchaser by all necessary corporate action.
(iv) Binding Obligation. This Agreement shall constitute a
legal, valid and binding obligation of the Purchaser enforceable in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights generally or by general
principles of equity.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof shall not conflict with, result in any breach of any of the
terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the Purchaser, or conflict with or breach any of the
material terms or provisions of, or constitute (with or without
notice or lapse of time) a default under, any indenture, agreement
or other instrument to which the Purchaser is a party or by which it
shall be bound; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this
Agreement); nor violate any law or, to the best of the Purchaser's
knowledge, any order, rule or regulation applicable to the Purchaser
of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Purchaser or its properties; which breach,
default, conflict, Lien or violation would have a material adverse
affect on the earnings, business affairs or business prospects of
the Purchaser.
(vi) No Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending, or to the Purchaser's knowledge, threatened,
against or affecting the Purchaser: (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of
the
5
transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely affect
the performance by the Purchaser of its obligations under, or the
validity or enforceability of, this Agreement.
(c) The representations and warranties set forth in this Section
shall survive the sale of the Receivables by the Seller to the Purchaser
pursuant to this Agreement and the sale of the Receivables by the Purchaser to
the Trust pursuant to the [Pooling and Servicing Agreement][Sale and Servicing
Agreement]. Upon discovery by the Seller, the Purchaser or the Trustee of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the others.
2.03 Representations and Warranties of the Seller as to the Receivables.
(a) Eligibility of Receivables. The Seller hereby represents and
warrants as of the Cutoff Date that:
(i) Characteristics of Receivables. Each Receivable (A) shall
have been originated in the United States by a Dealer for the retail
sale of the related Financed Vehicle in the ordinary course of such
Dealer's business, shall have been fully and properly executed by
the parties thereto, shall have been purchased by the Seller from
such Dealer under an existing agreement with the Seller and shall
have been validly assigned by such Dealer to the Seller in
accordance with the terms of such agreement, (B) shall have created
or shall create a valid, subsisting and enforceable first priority
security interest in favor of the Seller in the related Financed
Vehicle, which security interest shall be assignable and has been
assigned by the Seller to the Purchaser, (C) shall provide for level
Monthly Payments (provided that the payment in the first or last
month in the life of the Receivable may be minimally different from
the level payment) that fully amortize the Amount Financed by
maturity and provide for a finance charge or yield interest at its
APR, in either case calculated based on the Rule of 78s, the simple
interest method or the actuarial method, (D) shall contain customary
and enforceable provisions such that the rights and remedies of the
holder thereof shall be adequate for realization against the
collateral of the benefits of the security and (E) shall provide
for, in the event that such Receivable is prepaid, a prepayment that
fully pays the Principal Balance and includes accrued but unpaid
interest.
(ii) Schedule of Receivables. The information set forth in the
Schedule of Receivables shall be true and correct in all material
respects as of the opening of business on the Cutoff Date, the
Receivables were selected at random from the retail installment sale
contracts included in the portfolio of the Seller meeting the
selection criteria set forth in this Section and no selection
procedures believed to be adverse to the interests of any
[Certificateholders][Securityholders] shall have been utilized in
selecting the Receivables.
(iii) Compliance with Law. Each Receivable and each sale of
the related Financed Vehicle shall have complied at the time it was
originated or made, and shall
6
comply at the time of execution of this Agreement in all material
respects with all requirements of applicable federal, state and
local laws, and regulations thereunder, including usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair
Debt Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, Federal Reserve Board Regulations B, M
and Z, to the extent applicable, state adaptations of the National
Consumer Act and of the Uniform Consumer Credit Code and other
consumer credit, equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable shall constitute the
legal, valid and binding payment obligation in writing of the
related Obligor, enforceable by the holder thereof in accordance
with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting the enforcement of creditors' rights in general and
by general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at
law.
(v) No Bankrupt Obligors. None of the Receivables shall be
due, to the best knowledge of the Seller, from any Obligor who is
presently the subject of a bankruptcy proceeding or is insolvent.
(vi) No Government Obligors. None of the Receivables shall be
due from the United States or any state, or from any agency,
department or instrumentality of the United States or any state or
local government.
(vii) Employee Obligors. None of the Receivables shall be due
from any employee of the Seller, the Purchaser or any of their
respective affiliates.
(viii) Security Interest in Financed Vehicles. Immediately
prior to the sale, assignment and transfer thereof pursuant hereto,
each Receivable shall be secured by a validly perfected first
priority security interest in the related Financed Vehicle in favor
of the Seller as secured party or all necessary and appropriate
action with respect to such Receivable shall have been taken to
perfect a first priority security interest in such Financed Vehicle
in favor of the Seller as secured party.
(ix) Receivables in Force. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Financed Vehicle
have been released in whole or in part from the lien granted by the
related Receivable.
(x) No Waivers. No provision of a Receivable shall have been
waived in such a manner that such Receivable fails to meet all of
the other representations and warranties made by the Seller herein
with respect thereto.
(xi) No Amendments. No Receivable shall have been amended or
modified in such a manner that the total number of Scheduled
Payments has been increased or that the
7
related Amount Financed has been increased or that such Receivable
fails to meet all of the other representations and warranties made
by the Seller herein with respect thereto.
(xii) No Defenses. No facts shall be known to the Seller which
would give rise to any right of rescission, setoff, counterclaim or
defense, nor shall the same have been asserted or threatened, with
respect to any Receivable.
(xiii) No Liens. To the knowledge of the Seller, no liens or
claims shall have been filed, including liens for work, labor or
materials relating to a Financed Vehicle, that shall be liens prior
to, or equal or coordinate with, the security interest in such
Financed Vehicle granted by the related Receivable.
(xiv) No Defaults; No Repossession. Except for payment
defaults that, as of the Cutoff Date, have been continuing for a
period of not more than - days, no default, breach, violation or
event permitting acceleration under the terms of any Receivable
shall have occurred as of the Cutoff Date; no continuing condition
that with notice or the lapse of time would constitute a default,
breach, violation or event permitting acceleration under the terms
of any Receivable shall have arisen; the Seller shall not have
waived any of the foregoing; and no Financed Vehicle has been
repossessed without reinstatement as of the Cutoff Date.
(xv) Insurance. At the time of origination of each Receivable,
each Obligor was required under the terms of such Receivable to
obtain and maintain physical damage insurance covering the related
Financed Vehicle.
(xvi) Good Title. It is the intention of the Seller that the
transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Receivables from the Seller to the
Purchaser and that the beneficial interest in and title to the
Receivables not be part of the debtor's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Receivable has been sold, transferred, assigned
or pledged by the Seller to any Person other than the Purchaser, and
no provision of a Receivable shall have been waived, except as
provided in clause (x) above; immediately prior to the transfer and
assignment herein contemplated, the Seller had good and marketable
title to each Receivable free and clear of all Liens and rights of
others; immediately upon the transfer and assignment thereof, the
Purchaser shall have good and marketable title to each Receivable,
free and clear of all Liens and rights of others; and the transfer
and assignment herein contemplated has been perfected under the UCC.
(xvii) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable
under this Agreement or pursuant to transfers of the related
certificates of title shall be unlawful, void or voidable.
(xviii) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to provide third parties with notice
of the transfer and assignment herein
8
contemplated, to perfect the sale of the receivables from the Seller
to the Purchaser and to give the Purchaser a first priority
perfected security interest in the Receivables shall have been made.
(xix) One Original. There shall be only one original executed
copy of each Receivable.
(xx) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the UCC.
(xxi) Additional Representations and Warranties. (A) Each
Receivable shall have an original maturity of not less than - months
nor greater than - months and a remaining maturity of not less than
- months nor greater than - months; (B) each Receivable provides for
the payment of a finance charge based on an APR ranging from -% to
-%%; (C) each Receivable shall have had an original principal
balance of not less than $- nor more than $- and, as of the Cutoff
Date, an unpaid principal balance of not less than $- and not more
than $-; (D) each Receivable was originated before o; (E) no
Receivable was originated under a special financing program; (F) no
Receivable shall have a Scheduled Payment that is more than - days
past due as of the Cutoff Date; and (G) no Financed Vehicle was
subject to force-placed insurance as of the Cutoff Date.
(b) Notice of Breach. The representations and warranties set forth
in this Section shall speak as of the execution and delivery of this Agreement,
but shall survive the sale, transfer and assignment of the Receivables to the
Purchaser and any subsequent assignment or transfer pursuant to Article Two of
the [Pooling and Servicing Agreement][Sale and Servicing Agreement]. The
Purchaser, the Seller or the Trustee, as the case may be, shall inform the other
parties promptly, in writing, upon discovery of any breach of the Seller's
representations and warranties pursuant to this Section which materially and
adversely affects the interests of any [Certificateholders] [Securityholders] in
any Receivable.
(c) Repurchase of Receivables. In the event of a breach of any
representation or warranty set forth in Section 2.03(a) which materially and
adversely affects the interest of any [Certificateholders][Securityholders] in
any Receivable and unless the breach shall have been cured by the last day of
the second Collection Period following the Collection Period in which the
discovery of the breach is made or notice is received, as the case may be (or,
at the option of the Seller, the last day in the first Collection Period
following the Collection Period in which such discovery is made or such notice
received), the Seller shall repurchase such Receivable. In consideration of the
purchase of any such Receivable, the Seller shall remit an amount equal to the
Warranty Purchase Payment in respect of such Receivable to the Purchaser and
shall be entitled to receive the Released Warranty Amount. In the event that, as
of the date of execution and delivery of this Agreement, any Liens or claims
shall have been filed, including Liens for work, labor or materials relating to
a Financed Vehicle, that shall be liens prior to, or equal or coordinate with,
the Lien granted by the related Receivable (whether or not the Seller has
knowledge thereof), and such breach materially and adversely affects the
interests of any
9
[Certificateholders][Securityholders] in such Receivable, the Seller shall
repurchase such Receivable on the terms and in the manner specified above. Upon
any such repurchase, the Purchaser shall, without further action, be deemed to
transfer, assign, set-over and otherwise convey to the Seller, without recourse,
representation or warranty, all the right, title and interest of the Purchaser
in, to and under such repurchased Receivable, all monies due or to become due
with respect thereto and all proceeds thereof. The Purchaser or the Trustee, as
applicable, shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested by the
Seller to effect the conveyance of such Receivable pursuant to this Section. The
sole remedy of the Purchaser with respect to a breach of the Seller's
representations and warranties pursuant to Section 2.03(a) or with respect to
the existence of any such Liens or claims shall be to require the Seller to
repurchase the related Receivables pursuant to this Section.
2.04 Covenants of the Seller. The Seller hereby covenants that:
(a) Security Interests. Except for the conveyances hereunder, the
Seller will not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on any Receivable, whether now
existing or hereafter created, or any interest therein, the Seller will
immediately notify the Purchaser of the existence of any Lien on any Receivable
and, in the event that the interests of any
[Certificateholders][Securityholders] in such Receivable are materially and
adversely affected, such Receivable shall be repurchased from the Purchaser by
the Seller in the manner and with the effect specified in Section 2.03(c), and
the Seller shall defend the right, title and interest of the Purchaser in, to
and under the Receivables, whether now existing or hereafter created, against
all claims of third parties claiming through or under the Seller; provided,
however, that nothing in this subsection shall prevent or be deemed to prohibit
the Seller from suffering to exist upon any of the Receivables, Liens for
municipal or other local taxes if such taxes shall not at the time be due and
payable or if the Seller shall currently be contesting the validity of such
taxes in good faith by appropriate proceedings and shall have set aside on its
books adequate reserves with respect thereto.
(b) Delivery of Payments. The Seller agrees to deliver in kind upon
receipt to the Servicer under the [Pooling and Servicing Agreement][Sale and
Servicing Agreement] (if other than the Seller) all payments received by the
Seller in respect of the Receivables as soon as practicable after receipt
thereof by the Seller, from and after the appointment of the Servicer as
Servicer under the [Pooling and Servicing Agreement][Sale and Servicing
Agreement] with respect to the Toyota Auto Receivables 199_-_ [Grantor][Owner]
Trust.
(c) Conveyance of Receivables. The Seller covenants and agrees that
it will not convey, assign, exchange or otherwise transfer the Receivables to
any Person prior to the termination of this Agreement pursuant to Article Four
hereof.
(d) No Impairment. The Seller shall take no action, nor omit to take
any action, which would impair the rights of the Purchaser in any Receivable,
nor shall it, except as
10
expressly provided in this Agreement or the [Pooling and Servicing Agreement]
[Sale and Servicing Agreement], reschedule, revise or defer payments due on any
Receivable.
ARTICLE III.
PAYMENT OF RECEIVABLES PURCHASE PRICE
3.01 Payment of Receivables Purchase Price. In consideration of the sale
of the Receivables from the Seller to the Purchaser as provided in Section 2.01,
on the Closing Date the Purchaser agrees to pay the Seller an amount equal to
the Receivables Purchase Price. The Receivables Purchase Price shall be paid in
the form of (i) $-, the net cash proceeds from the public offering by the
Purchaser of the Certificates (less amounts retained to pay expenses of the
Purchaser and to fund the Reserve Fund Initial Deposit and the Yield Maintenance
Account Initial Deposit), and (ii) $- evidenced by a non-recourse promissory
subordinated note.
ARTICLE IV.
TERMINATION
4.01 Termination. The respective obligations and responsibilities of the
Seller and the Purchaser created hereby shall terminate, except for the
indemnity obligations of the Seller as provided herein, upon the termination of
the Trust as provided in Article Ten of the [Pooling and Servicing
Agreement][Sale and Servicing Agreement].
ARTICLE V.
MISCELLANEOUS PROVISIONS
5.01 Amendment.
(a) This Agreement may be amended from time to time by the Purchaser
and the Seller to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to add any
other provision with respect to matters or questions arising under this
Agreement which shall not be inconsistent with the provisions of this Agreement
or the [Pooling and Servicing Agreement][Trust Agreement and Sale and Servicing
Agreement]; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel to the Purchaser delivered to the Trustee, adversely affect
in any material respect the interests of the Trust.
(b) This Agreement may also be amended from time to time by the
Purchaser and the Seller with the consent of the Trustee for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement.
5.02 Protection of Right, Title and Interest to Receivables.
11
(a) The Seller at its expense shall cause this Agreement, all
amendments hereto and/or all financing statements and continuation statements
and any other necessary documents covering the Purchaser's right, title and
interest to the Receivables and other property conveyed by the Seller to the
Purchaser hereunder to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the right, title
and interest of the Purchaser hereunder to all of the Receivables and such other
property. The Seller shall deliver to the Purchaser file-stamped copies of, or
filing receipts for, any document recorded, registered or filed as provided
above, as soon as available following such recording, registration or filing.
The Purchaser and the Trustee shall cooperate fully with the Seller in
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this subsection.
(b) Within 30 days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9402(7) of the UCC as in effect in the
applicable state, the Seller shall give the Purchaser notice of any such change
and shall execute and file such financing statements or amendments as may be
necessary to continue the perfection of the Purchaser's security interest in the
Receivables and the proceeds thereof.
(c) The Seller will give the Purchaser prompt written notice of any
relocation of any office from which the Seller keeps records concerning the
Receivables or of its principal executive office and whether, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement and shall execute and file such financing
statements or amendments as may be necessary to continue the perfection of the
interest of the Purchaser in the Receivables and the proceeds thereof.
5.03 Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New York and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
5.04 Notices. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by registered mail, return receipt requested, to (a) in the case of
the Purchaser, to Toyota Motor Credit Receivables Corporation, 00000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: President; (b) in the
case of Toyota Motor Credit Corporation, 00000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: Senior Vice President; and (c) in the case of the
Trustee, to o; or, as to any of such Persons, at such other address as shall be
designated by such Person in a written notice to the other Persons.
5.05 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall for any reason
whatsoever be held invalid, then such
12
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions and terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement.
5.06 Assignment. This Agreement may not be assigned by the Purchaser or
the Seller except as contemplated by this Section and the [Pooling and Servicing
Agreement][Trust Agreement and Sale and Servicing Agreement]; provided, however,
that simultaneously with the execution and delivery of this Agreement, the
Purchaser shall assign all of its right, title and interest herein to the
Trustee for the benefit of any [Certificateholders][Securityholders] as provided
in Section 2.01 of the [Pooling and Servicing Agreement][Sale and Servicing
Agreement], to which the Seller hereby expressly consents. The Seller agrees to
perform its obligations hereunder for the benefit of the Trust and that the
Trustee may enforce the provisions of this Agreement, exercise the rights of the
Purchaser and enforce the obligations of the Seller hereunder without the
consent of the Purchaser.
5.07 Further Assurances. The Seller and the Purchaser agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other party hereto or by the
Trustee more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements, amendments, continuation
statements or releases relating to the Receivables for filing under the
provisions of the UCC or other law of any applicable jurisdiction.
5.08 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Purchaser, the Trustee or the Seller, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
5.09 Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
5.10 Third-Party Beneficiaries. This Agreement will inure to the benefit
of and be binding upon the parties signatory hereto, and the Trustee for the
benefit of any [Certificateholders][Securityholders], which shall be considered
to be a third-party beneficiary hereof. Except as otherwise provided in this
Agreement, no other Person will have any right or obligation hereunder.
5.11 Merger and Integration. Except as specifically stated otherwise
herein, this Agreement sets forth the entire understanding of the parties
relating to the subject matter hereof, and all prior understandings, written or
oral, are superseded by this Agreement. This Agreement may not be modified,
amended, waived or supplemented except as provided herein.
13
5.12 Headings. The headings herein are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
5.13 Indemnification.
(a) Purchaser and Trust. The Seller shall indemnify and hold
harmless the Purchaser, the Trust and the [Certificateholders][Securityholders]
from and against any loss, liability, expense, damage or injury suffered or
sustained by reason of any acts, omissions or alleged acts or omissions arising
out of activities of the Seller pursuant to this Agreement or as a result of the
transactions contemplated hereby, including, but not limited to, any judgment,
award, settlement, reasonable attorneys' fees and other costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding or claim; provided, however, that the Seller shall not indemnify the
Purchaser, the Trust or any [Certificateholders][Securityholders] if such acts,
omissions or alleged acts or omissions constitute negligence or willful
misconduct by the Purchaser or any [Certificateholders][Securityholders].
(b) Trustee. The Seller shall indemnify, defend and hold harmless
the Trustee from and against any and all costs, expenses, losses, claims,
damages, injury and liabilities to the extent that such cost, expense, loss,
claim, damage or liability arose out of, and was imposed upon the Trustee
through the negligence, willful misfeasance or bad faith of the Seller in the
performance of its duties under this Agreement or by reason of reckless
disregard of its obligations and duties under this Agreement.
5.14 Merger or Consolidation of, or Assumption of the Obligations of, the
Seller.
(a) The Seller shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the corporation formed by such consolidation or into which the
Seller is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Seller substantially as an entirety shall
be organized and existing under the laws of the United States or any State
or the District of Columbia, and, if the Seller is not the surviving
entity, shall expressly assume, by an agreement supplemental hereto,
executed and delivered to the Purchaser and the Trustee, in form
reasonably satisfactory to the Purchaser and the Trustee, the performance
of every covenant and obligation of the Seller hereunder and shall benefit
from all the rights granted to the Seller hereunder; and
(ii) The Seller shall have delivered to the Purchaser and the
Trustee an Officer's Certificate of the Seller and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer and
such supplemental agreement comply with this Section and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
14
(b) The obligations of the Seller hereunder shall not be assignable
nor shall any Person succeed to the obligations of the Seller hereunder except
in each case in accordance with the provisions of the foregoing paragraph and of
Section 5.06.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
By: ____________________________________
Name:
Title:
TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION,
as Purchaser
By: ____________________________________
Name:
Title:
ACCEPTED:
-,
not in its individual capacity
but solely as Trustee
By: _______________________________
Name:
Title:
16
SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- originals on file at the offices
of the Seller, the Purchaser and the Trustee
A-1
