EXHIBIT 4.3
RECEIVABLES PURCHASE AGREEMENT
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
and
TOYOTA AUTO FINANCE RECEIVABLES LLC,
as Purchaser
Dated as of April 1, 2001
TABLE OF CONTENTS
PAGE
I. DEFINITIONS
SECTION 1.01 Definitions...............................................................................1
SECTION 1.02 Other Definitional Provisions.............................................................4
II. CONVEYANCE OF RECEIVABLES
SECTION 2.01 Conveyance of Receivables.................................................................4
SECTION 2.02 Representations and Warranties of the Seller and the Purchaser............................5
SECTION 2.03 Representations and Warranties of the Seller as to the Receivables........................8
SECTION 2.04 Covenants of the Seller..................................................................12
III. PAYMENT OF RECEIVABLES PURCHASE PRICE
SECTION 3.01 Payment of Receivables Purchase Price....................................................13
IV. TERMINATION
SECTION 4.01 Termination..............................................................................13
V. MISCELLANEOUS PROVISIONS
SECTION 5.01 Amendment................................................................................13
SECTION 5.02 Protection of Right, Title and Interest to Receivables...................................13
SECTION 5.03 Governing Law............................................................................14
SECTION 5.04 Notices..................................................................................14
SECTION 5.05 Severability of Provisions...............................................................14
SECTION 5.06 Assignment...............................................................................15
SECTION 5.07 Further Assurances.......................................................................15
SECTION 5.08 No Waiver; Cumulative Remedies...........................................................15
SECTION 5.09 Counterparts.............................................................................15
SECTION 5.10 Third-Party Beneficiaries................................................................15
SECTION 5.11 Merger and Integration...................................................................15
SECTION 5.12 Headings.................................................................................16
SECTION 5.13 Indemnification..........................................................................16
SECTION 5.14 Merger or Consolidation of, or Assumption of the Obligations of, the Seller............16
Schedule A - Schedule of Receivables..................................................................A-1
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RECEIVABLES PURCHASE AGREEMENT, dated as of April 1, 2001, between
Toyota Motor Credit Corporation, a California corporation, as seller, and Toyota
Auto Finance Receivables LLC, a Delaware limited liability company, 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 Purchaser, Issuer and Indenture Trustee:
ARTICLE I.
DEFINITIONS
SECTION 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.
"AMOUNT FINANCED" in respect of a Receivable means the aggregate amount
advanced under such Receivable toward the purchase price of the related Financed
Vehicle and any related costs, including but not limited to accessories,
insurance premiums, service and warranty contracts and other items customarily
financed as part of retail automobile and light duty truck installment sale
contracts.
"ANNUAL PERCENTAGE RATE" or "APR" of a Receivable means the annual rate
of finance charges specified in such Receivable.
"BASIC DOCUMENTS" means this Receivables Purchase Agreement, the Trust
Agreement, the Sale and Servicing Agreement, the Indenture, the Administration
Agreement, the Securities Account Control Agreement and the other documents and
certificates delivered in connection herewith and therewith.
"CLOSING DATE" shall mean May 15, 2001.
"CUTOFF DATE" shall mean April 1, 2001.
"DEALER RECOURSE" means, with respect to a Receivable, all recourse
rights against the Dealer which originated the Receivable, and any successor
Dealer.
"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.
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"FINANCED VEHICLE" means, with respect to a Receivable, the related
automobile or light duty truck, as the case may be, together with all accessions
thereto, securing the related Obligor's indebtedness under such Receivable.
"INDENTURE TRUSTEE" shall mean Xxxxx Fargo Bank Minnesota, National
Association, as indenture trustee under the Indenture, or any successor trustee
thereunder.
"LIEN" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' liens and any liens
that attach to a Receivable or any property, as the context may require, by
operation of law.
"LIQUIDATION PROCEEDS" means, with respect to a Defaulted Receivable,
all amounts realized with respect to such Receivable from whatever sources
(including, without limitation, proceeds of any Insurance Policy), net of
amounts that are required by law or such Receivable to be refunded to the
related Obligor.
"OBLIGOR" on a Receivable means the purchaser or co-purchasers of the
related Financed Vehicle purchased in part or in whole by the execution and
delivery of such Receivable or any other Person who owes or may be liable for
payments under such Receivable.
"OWNER TRUSTEE" shall mean First Union Trust Company, National
Association, as owner trustee under the Trust Agreement, or any successor
trustee thereunder.
"PURCHASER" shall mean Toyota Auto Finance Receivables LLC, 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.
"RECEIVABLE FILE" means with respect to each Receivable:
(a) the fully executed original of the Receivable;
(b) documents evidencing or related to any Insurance
Policy;
(c) the original credit application of each Obligor, fully
executed by such Obligor on TMCC's customary form, or on a form
approved by TMCC, for such application;
(d) the original certificate of title (or evidence that such
certificate of title has been applied for) or such documents that the
Servicer shall keep on file, in accordance with TMCC's customary
procedures, evidencing the security interest in the related Financed
Vehicle; and
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(e) any and all other documents that the Seller or the
Servicer, as the case may be, shall keep on file, in accordance with
its customary procedures, relating to such Receivable or the related
Obligor or Financed Vehicle.
"RECEIVABLES PURCHASE PRICE" shall mean $1,545,404,749.19.
"RELEASED WARRANTY AMOUNT" means, with respect to a Payment Date and to
a Warranty Receivable, the Deferred Prepayment, if any, for such Warranty
Receivable.
"SALE AND SERVICING AGREEMENT" shall mean the Sale and Servicing
Agreement dated as of April 1, 2001, by and among Toyota Auto Receivables 2001-B
Owner Trust, as issuer, Toyota Auto Finance Receivables LLC, as seller, and
Toyota Motor Credit Corporation, as servicer, and, as to which, the Indenture
Trustee is a third party beneficiary.
"SECURITIES ACCOUNT CONTROL AGREEMENT" shall have the meaning ascribed
thereto in the Sale and Servicing Agreement.
"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 described
in Section 2.01(a) and attached as Schedule A hereto.
"TRUST" means the Toyota Auto Receivables 2001-B Owner Trust, a
Delaware business trust.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement dated
as of April 1, 2001, by and between Toyota Auto Finance Receivables LLC, as
depositor, and First Union Trust Company, National Association, as Owner
Trustee.
"WARRANTY PURCHASE PAYMENT" means, with respect to a Payment Date and
to (1) a Warranty Receivable which is a Precomputed Receivable repurchased by
the Seller as of the close of business on the last day of the related Collection
Period, (a) the sum of (i) all Scheduled Payments on such Receivable due after
the last day of such Collection Period, (ii) all past due Scheduled Payments for
which an Advance has not been made, (iii) an amount equal to any reimbursement
of Outstanding Advances made pursuant to Section 5.04(b) of the Sale and
Servicing Agreement with respect to such Receivable and (iv) an amount equal to
all other Outstanding Advances made pursuant to Section 5.04(c) of the Sale and
Servicing Agreement with respect to such Receivable, minus (b) the sum of (i)
any Rebate (except to the extent specified in Section 4.03 of the Sale and
Servicing Agreement) and (ii) any other proceeds in respect of such Receivable
received during any Collection Period prior to or during such Collection Period
(to the extent applied to reduce the Principal Balance of such Receivable on
such Payment Date), and (2) a Warranty Receivable which is a Simple Interest
Receivable repurchased by the Seller as of the close of business on the last day
of the related Collection Period, the sum of (a) the unpaid Principal Balance
owed by the Obligor in respect of such Receivable as of the last day of the
related Collection Period plus (b) interest on such unpaid
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Principal Balance at a rate equal to the related APR to the last day in the
related Collection Period.
"WARRANTY RECEIVABLE" means a Receivable purchased by the Seller
pursuant to Section 2.03(c).
SECTION 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All capitalized terms not otherwise defined in this Agreement
shall have the defined meanings used in the Sale and Servicing Agreement or
Trust Agreement, as the case may be.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section,
subsection and Schedule references contained in this Agreement are references
to Sections, subsections and Schedules in or to this Agreement unless
otherwise specified; and the word "including" means including without
limitation.
ARTICLE II.
CONVEYANCE OF RECEIVABLES
SECTION 2.01 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;
(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
in accordance with the terms thereof; and
(vi) all proceeds of the foregoing.
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It is the intention of the Seller that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
the Seller to the Purchaser and the beneficial interest in and title to the
Receivables shall not be part of the Seller's estate in the event of the filing
of a bankruptcy petition by or against the Seller under any bankruptcy law. The
Seller agrees to execute and file all filings (including filings under the UCC)
necessary in any jurisdiction to provide third parties with notice of the sale
of the Receivables pursuant to this Agreement and to perfect such sale under the
UCC.
(b) In connection with the foregoing conveyance, the Seller agrees
to record and file in California, 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.
In connection with the foregoing conveyance, the Seller further agrees,
at its own expense, on or prior to the Closing Date (i) to annotate and indicate
in its computer files that the Receivables have been transferred to the
Purchaser pursuant to this Agreement, (ii) to deliver to the Purchaser a
computer file or printed or microfiche list containing a true and complete list
of all such Receivables, identified by account number and by the Principal
Balance of each Receivable as of the Cutoff Date, which file or list shall be
marked as Schedule A to this Agreement and is hereby incorporated into and made
a part of this Agreement and (iii) to deliver the Receivable Files to or upon
the order of the Purchaser.
SECTION 2.02 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:
(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
and where the failure to so qualify will have a material
adverse effect on the ability of the Seller to conduct its
business or perform its obligations under this Agreement.
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(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 the Basic
Documents); 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.
(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 limited
liability company in good standing under the laws of the State
of Delaware, and has 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, power,
authority and legal right to acquire and own the Receivables.
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(ii) DUE QUALIFICATION. The Purchaser shall be duly qualified to do
business as a foreign limited liability company 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 and where the failure to so qualify will have a
material adverse effect on the ability of the Purchaser to
conduct its business or perform its obligations under this
Agreement.
(iii) POWER AND AUTHORITY. The Purchaser shall have the power and
authority to execute and deliver this Agreement and to carry
out its terms; the Purchaser shall have full power and
authority to purchase the property to be purchased and shall
have duly authorized such purchase; and the execution,
delivery and performance of this Agreement shall have been
duly authorized by the Purchaser by all necessary 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
certificate of formation or limited liability company
agreement 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 the Basic
Documents), 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 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.
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(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 Issuer pursuant to the Sale and Servicing Agreement. Upon
discovery by the Seller, the Purchaser or the Owner Trustee of a breach of
any of the foregoing representations and warranties, the party discovering
such breach shall give prompt written notice to the others.
SECTION 2.03 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
monthly payments that fully amortize the Amount Financed by maturity
(except for minimally different payments in the first or last month
in the life of the Receivable) 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
Securityholders shall have been utilized in selecting the
Receivables.
(iii) COMPLIANCE WITH LAW. To the knowledge of the Seller,
each Receivable and each sale of the related Financed Vehicle shall
have complied at the time it was originated or made, and shall
comply at the time of execution of this Agreement in all material
respects with all requirements of applicable federal, state and
local laws, and regulations thereunder, including usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair
Debt Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, Federal Reserve Board Regulations B, M
and Z, to the
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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, except with respect to
applicable Florida documentary stamp taxes as to which the effect of
noncompliance will not have a material adverse effect on such
Receivable.
(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 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.
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(xiii) NO LIENS. To the knowledge of the Seller, no liens
or claims shall have been filed as of the date of this Agreement,
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, which Liens shall not have been released or
satisfied as of the Closing Date.
(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 30 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. The terms of each Receivable require
the Obligor to obtain and maintain physical damage insurance
covering the related Financed Vehicle in accordance with the
Seller's normal requirements. The terms of each Receivable allow,
but do not require the Seller to (and the Seller, in accordance
with its current normal servicing procedures, does not) obtain any
such coverage on behalf of the Obligor.
(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, 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. As of the Closing Date, all
filings (including UCC filings) necessary in any jurisdiction to
provide third parties with notice of the transfer and assignment
herein contemplated, to perfect the sale of the receivables from
the Seller to the Purchaser and to give the Purchaser a first
priority perfected security interest in the Receivables shall have
been made.
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(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 number of Scheduled Payments
of not less than 12 nor more than 72 and, as of the Cutoff Date, a
remaining number of Scheduled Payments of not less than 5 nor more
than 72; (ii) each Receivable provides for the payment of a finance
charge based on an APR ranging from 6% to 15%; (iii) each
Receivable shall have had an original principal balance of not less
than $811 and not more than $80,617 and, as of the Cutoff Date, an
unpaid principal balance of not less than $401 nor more than
$49,988; (iv) no Receivable was originated under a special
financing program; (v) no Receivable shall have a Scheduled Payment
that is more than 30 days past due as of the Cutoff Date; (vi) no
Financed Vehicle was subject to force-placed insurance as of the
Cutoff Date; (vii) there is no Receivable as to which payments
ahead of more than 6 Scheduled Payments have been received from or
on behalf of the related Obligor; and (viii) each Receivable is
being serviced by Toyota Motor Credit Corporation.
(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 Sale and Servicing Agreement. The Purchaser,
the Seller or the Owner 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 the Purchaser (or any assignee thereof) 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 the Purchaser (or any assignee thereof) in
any Receivable, unless such breach shall have been cured in all material
respects, the Seller shall repurchase such Receivable 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). This repurchase obligation shall obtain for all
representations and warranties of the Seller contained in Section 2.03(a) of
this Agreement whether or not the Seller has knowledge of the breach at the
time of the breach or at the time the representations and warranties were
made. 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 the Seller shall be entitled to receive
the Released Warranty Amount from (or on behalf of) the Purchaser. The sole
remedy of the Purchaser (or any assignee thereof) with respect to a breach of
the Seller's representations and warranties pursuant to this Agreement shall
be to require the Seller to repurchase the related Receivable pursuant to
this Section. Upon any such repurchase, the Purchaser shall, without further
action, be deemed to transfer, assign,
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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 Owner 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.
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 the Purchaser (or any
assignee thereof) 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 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 Sale and
Servicing Agreement with respect to the Toyota Auto Receivables 2001-B 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 IV hereof.
(d) NO IMPAIRMENT. The Seller shall take no action, nor omit to
take any action, which would impair the rights of the Purchaser in any
Receivable, nor shall it, except as expressly provided in this Agreement or
the Sale and Servicing Agreement, reschedule, revise or defer payments due on
any Receivable.
(e) DELIVERY OF OPINION OF COUNSEL. On the Closing Date, the
Seller will obtain and deliver to the Purchaser an Opinion of Counsel to the
effect that all of the Receivables originated in the State of California are
enforceable under California law and applicable federal laws, subject to
customary exceptions.
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ARTICLE III.
PAYMENT OF RECEIVABLES PURCHASE PRICE
SECTION 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) $1,446,653,042.44, the net cash
proceeds from the sale by the Purchaser of the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes and the net cash proceeds of the sale of the
Class A-1 Notes to TMCC (less amounts retained to pay expenses of the
Purchaser and to fund the Reserve Account Initial Deposit), and (ii)
$98,751,706.75 evidenced by an advance under a subordinated non-recourse
promissory note.
ARTICLE IV.
TERMINATION
SECTION 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 Agreement and dissolution of the
Issuer as provided in Article IX of the Trust Agreement.
ARTICLE V.
MISCELLANEOUS PROVISIONS
SECTION 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 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 Owner Trustee, adversely affect in any
material respect the interests of the Issuer as assignee of the Purchaser's
rights and interests hereunder.
(b) This Agreement may also be amended from time to time by the
Purchaser and the Seller with the consent of the Owner Trustee for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement.
SECTION 5.02 PROTECTION OF RIGHT, TITLE AND INTEREST TO RECEIVABLES.
(a) The Seller at its expense shall cause this Agreement, all
amendments hereto and/or all financing statements and continuation statements
and any other necessary documents covering the Purchaser's right, title and
interest to the Receivables and other property
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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 Owner Trustee shall cooperate fully with the Seller in connection with
the obligations set forth above and will execute any and all documents
reasonably required to fulfill the intent of this subsection.
(b) Within 30 days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9402(7) of the UCC as in effect in
the applicable state, the Seller shall give the Purchaser notice of any such
change and shall execute and file such financing statements or amendments as
may be necessary to continue the perfection of the Purchaser's security
interest in the Receivables and the proceeds thereof.
(c) The Seller will give the Purchaser prompt written notice of any
relocation of any office from which the Seller keeps records concerning the
Receivables or of its principal executive office and whether, as a result of
such relocation, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall execute and file such
financing statements or amendments as may be necessary to continue the
perfection of the interest of the Purchaser in the Receivables and the
proceeds thereof.
SECTION 5.03 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.
SECTION 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 Auto Finance Receivables LLC, 00000
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: President; (b) in the
case of Toyota Motor Credit Corporation, 00000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Treasury Department, Vice President,
Treasury; and (c) in the case of the Owner Trustee, to First Union Trust
Company, National Association, One Xxxxxx Square, 000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000; (d) in the case of the Indenture Trustee, to
Xxxxx Fargo Bank Minnesota, National Association, Sixth and Marquette Avenue,
MAC: N9311-161, Xxxxxxxxxxx, Xxxxxxxxx, 00000; or, as to any of such Persons,
at such other address as shall be designated by such Person in a written
notice to the other Persons.
SECTION 5.05 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 covenants, agreements,
provisions or terms shall be deemed severable from the
14
remaining covenants, agreements, provisions and terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement.
SECTION 5.06 ASSIGNMENT. This Agreement may not be assigned by the
Purchaser or the Seller except as contemplated by this Section, Section 5.14
of this Agreement, the Trust Agreement and the 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 Owner Trustee for the benefit of any Securityholders
as provided in Section 2.01 of the Sale and Servicing Agreement, to which the
Seller hereby expressly consents. The Seller also acknowledges that the
Issuer will further assign the rights and interests of the Purchaser
hereunder to the Indenture Trustee for the benefit of the Noteholders
pursuant to the Indenture. The Seller agrees to perform its obligations
hereunder for the benefit of the Issuer, and agrees that the Owner Trustee or
the Indenture trustee, as applicable, may enforce the provisions of this
Agreement, exercise the rights of the Purchaser and enforce the obligations
of the Seller hereunder without the consent of the Purchaser.
SECTION 5.07 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 Owner Trustee more fully to effect the purposes of this
Agreement, including, without limitation, the execution of any financing
statements, amendments, continuation statements or releases relating to the
Receivables for filing under the provisions of the UCC or other law of any
applicable jurisdiction.
SECTION 5.08 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Purchaser, the Owner Trustee, the
Indenture Trustee or the Seller, of any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights, remedies, powers
and privileges provided by law.
SECTION 5.09 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.
SECTION 5.10 THIRD-PARTY BENEFICIARIES. This Agreement will inure to the
benefit of and be binding upon the parties signatory hereto, and the Owner
Trustee for the benefit of any Securityholders, which shall be considered to
be a third-party beneficiary hereof. Except as otherwise provided in this
Agreement, no other Person will have any right or obligation hereunder.
SECTION 5.11 MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter 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.
15
SECTION 5.12 HEADINGS. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 5.13 INDEMNIFICATION. The Seller shall indemnify and hold
harmless the Purchaser, the Issuer, the Owner Trustee and the Securityholders
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 such Person through the willful
misconduct or negligence 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, 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
any such Person if such acts, omissions or alleged acts or omissions
constitute negligence or willful misconduct by the Purchaser, the Owner
Trustee or any Securityholders. In case any such action is brought against a
party indemnified under this Section 5.13 and it notifies the Seller of the
commencement thereof, the Seller will assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who may, unless
there is, as evidenced by an Opinion of Counsel stating that there is an
unwaivable conflict of interest, be counsel to the Seller), and the Seller
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.
SECTION 5.14 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, THE SELLER.
(a) The Seller shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as
an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into which the
Seller is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Seller substantially
as an entirety shall be organized and existing under the laws
of the United States or any State or the District of Columbia,
and, if the Seller is not the surviving entity, shall
expressly assume, by an agreement supplemental hereto,
executed and delivered to the Purchaser and the Owner Trustee,
in form reasonably satisfactory to the Purchaser and the Owner
Trustee, the performance of every covenant and obligation of
the Seller hereunder and shall benefit from all the rights
granted to the Seller hereunder in all material respects; and
(ii) The Seller shall have delivered to the Purchaser and the Owner
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.
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(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.
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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: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
TOYOTA AUTO FINANCE RECEIVABLES LLC,
as Purchaser
By: /s/ Xxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
ACCEPTED:
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
S-1
SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- originals on file at the offices
of the Seller, the Purchaser and the Owner Trustee
A-1
