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EXHIBIT 99.7
Execution Copy
TOYOTA AUTO RECEIVABLES 1997-A GRANTOR TRUST
$722,871,000.00 6.45% ASSET BACKED CERTIFICATES, CLASS A
$20,761,000.00 6.60% ASSET BACKED CERTIFICATES, CLASS B
$11,325,553.40 6.80% ASSET BACKED CERTIFICATES, CLASS C
UNDERWRITING AGREEMENT
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April 9, 1997
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
Three World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Joint Global Coordinators,
Bookrunners and Representatives of the
several Underwriters
Ladies and Gentlemen:
Section 1. Introductory. Toyota Motor Credit Receivables
Corporation, a California corporation (the "Seller") and a wholly owned
subsidiary of Toyota Motor Credit Corporation, a California corporation
("TMCC"), proposes to sell to each of the several underwriters named in
Schedule I-A hereto (the "Class A Certificates Underwriters") $722,871,000.00
aggregate principal amount of 6.45% Asset Backed Certificates, Class A (the
"Class A Certificates") and to each of the several underwriters named in
Schedule I-B hereto (the "Class B Certificates Underwriters") $20,761,000.00
aggregate principal amount of 6.60% Asset Backed Certificates, Class B (the
"Class B Certificates") and to each of the several underwriters named in
Schedule I-C hereto (the "Class
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C Certificates Underwriters", and together with the Class A Certificates
Underwriters and the Class B Certificates Underwriters, the "Underwriters")
$11,325,553.40 aggregate principal amount of 6.80% Asset Backed Certificates,
Class C (the "Class C Certificates", and, together with the Class A
Certificates and the Class B Certificates, the "Certificates") of the Toyota
Auto Receivables 1997-A Grantor Trust (the "Trust"). Credit Suisse First
Boston Corporation and Xxxxxx Brothers Inc. will act as representatives for the
Class A Certificates Underwriters and will be the sole Class B Certificates
Underwriters and Class C Certificates Underwriters, and in such capacities
shall herein be the "Representatives". Each Certificate will represent a
fractional undivided interest in the Trust. The assets of the Trust will
include, among other things, a pool of retail installment sale contracts (the
"Receivables") secured by the new and used automobiles and light duty trucks
financed thereunder (the "Financed Vehicles") and certain monies due or to
become due thereunder on or after April 1, 1997 (the "Cutoff Date"). The
Receivables and other assets of the Trust will be sold by TMCC to the Seller
pursuant to a Receivables Purchase Agreement (the "Receivables Purchase
Agreement") to be dated as of April 1, 1997 between TMCC and the Seller. As of
the Cutoff Date, the Receivables had an aggregate principal balance of
$754,957,553.40, the Class A Certificates in the aggregate will represent an
approximate 95.75% undivided interest in the Trust, equal to $722,871,000.00 of
the aggregate principal balance of the Receivables, the Class B Certificates in
the aggregate will represent an approximate 2.75% undivided interest in the
Trust, equal to $20,761,000.00 of the aggregate principal balance of the
Receivables and, the Class C Certificates in the aggregate will represent an
approximate 1.50% undivided interest in the Trust, equal to $11,325,553.40 of
the aggregate principal balance of the Receivables, all as described in the
Prospectus, as defined below. The Certificates will be issued pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement" and,
together with the "Receivables Purchase Agreement, the "Basic Documents") to be
dated as of April 1, 1997, among the Seller, TMCC, as servicer (in such
capacity, the "Servicer"), and Bankers Trust Company, as trustee (the
"Trustee").
This Underwriting Agreement shall hereinafter be referred to as "this
Agreement". Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Pooling and Servicing Agreement.
Section 2. Representations and Warranties of the Seller and TMCC.
(a) Each of the Seller and TMCC, jointly and severally, represents
and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-3 (No. 333-4336),
including a form of prospectus supplement, relating to the
Certificates and a form of prospectus relating to each class of
securities to be registered under such registration statement (the
"Registered Securities") has been filed with the Securities and
Exchange Commission (the "Commission") and either (A) has been
declared effective under the Securities Act of 1933, as amended (the
"Act"), and is not proposed to be amended or (B) is proposed to be
amended by amendment or post-effective amendment. If such
registration statement (the "initial
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registration statement") has been declared effective, either (i) any
additional registration statement (the "additional registration
statement") relating to the Certificates has been filed with the
Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and
declared effective upon filing pursuant to Rule 462(b) and the
Certificates have been duly registered under the Act pursuant to the
initial registration statement and such additional registration
statement or (ii) any such additional registration statement proposed
to be filed with the Commission pursuant to Rule 462(b) will become
effective upon filing pursuant to Rule 462(b) and upon such filing the
Certificates will have been duly registered under the Act pursuant to
the initial registration statement and such additional registration
statement. If the Seller does not propose to amend the initial
registration statement, any such additional registration statement or
any post-effective amendment to either such registration statement
filed with the Commission prior to the execution and delivery of this
Agreement, then the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c) under the
Act ("Rule 462(c)") or Rule 462(b).
For purposes of this Agreement, "Effective Time" with respect
to the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional registration
statement means (A) if the Seller has advised the Representatives that
it does not propose to amend such registration statement, the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
or (B) if the Seller has advised the Representatives that it proposes
to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If the Seller has
advised the Representatives that it proposes to file, but has not
filed, an additional registration statement prior to the execution and
delivery of this Agreement, "Effective Time" with respect to such
additional registration statement means the date and time as of which
such registration statement is filed and becomes effective pursuant to
Rule 462(b). "Effective Date" with respect to the initial
registration statement or the additional registration statement (if
any) means the date of the Effective Time thereof.
The initial registration statement, as amended at its
Effective Time, including all information (A) contained in the
additional registration statement (if any), (B) deemed to be a part of
the initial registration statement as of the Effective Time of the
additional registration statement (if any) pursuant to the General
Instructions of the Form on which it is filed and (C) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) under the Act ("Rule 430A(b)"), is
hereinafter referred to as the "Initial Registration Statement". The
additional registration statement, as amended at its Effective Time,
including (A) the contents of the initial registration statement
incorporated
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by reference therein and (B) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement". The form of prospectus supplement relating to the
Certificates (the "Prospectus Supplement") and the form of prospectus
(the "Base Prospectus") relating to the Registered Securities
(including the Certificates), as first filed with the Commission in
connection with the offering and sale of the Certificates pursuant to
and in accordance with Rule 424(b) under the Act ("Rule 424(b)") or,
if no such filing is required, as included in a Registration
Statement, including all material incorporated by reference in such
prospectus, is hereinafter referred to as the "Prospectus". Any
reference herein to "Registration Statement" or "Prospectus" shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") on
or before the Effective Date of the Registration Statement or the
issue date of the Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue
date of the Prospectus, as the case may be, deemed to be incorporated
therein by reference; any reference in this Agreement to documents,
financial statements and schedules and other information which is
"contained", "included", "stated", "described" or "referred to" in the
Registration Statement or the Prospectus (and all other references of
like import) shall be deemed to mean and include all such documents,
financial statements and schedules and other information which is or
is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
(ii) (A) On the Effective Date of any Registration
Statement whose Effective Time is prior to the execution and delivery
of this Agreement, each such Registration Statement conformed, (B) on
the date of this Agreement each such Registration Statement conforms
and (C) on any related Effective Date subsequent to the date of this
Agreement, each such Registration Statement will conform, in all
material respects with the requirements of the Act and the rules and
regulations of the Commission promulgated under the Act (the "Rules
and Regulations"), and at such times did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the time of the filing of the Prospectus
pursuant to Rule 424(b) or, if no such filing is required, at the
Effective Date of the Additional Registration Statement that includes
the Prospectus, on the date of this Agreement and at the Closing Date
(as such term is defined in Section 3 hereof), the Prospectus will
conform in all material respects to the requirements of the Act and
the Rules and Regulations, and does not include, or will not include,
any untrue statement of a material fact, nor does the Prospectus omit,
nor will it omit, any material fact, necessary in order to
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make the statements therein, in the light of the circumstances under
which they were made, not misleading. The two immediately preceding
sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon and in conformity
with written information furnished to the Seller by any Underwriter
through the Representatives specifically for use therein. If the
Effective Time of the Initial Registration Statement is subsequent to
the date of this Agreement, no Additional Registration Statement has
been or will be filed.
(iii) The consummation of the transactions contemplated by
this Agreement and the Basic Documents, and the fulfillment of the
terms thereof, will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result
in the creation of any lien, charge, or encumbrance upon any of the
property or assets of the Seller or TMCC pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument under which the
Seller or TMCC is a debtor or guarantor.
(iv) No consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required to
be obtained or made by the Seller or TMCC for the consummation of the
transactions in the manner contemplated by this Agreement except such
as have been obtained and made under the Act or the Rules and
Regulations, such as may be required under state securities laws and
the filing of any financing statements required to perfect the
transfer of the Receivables.
(v) Neither the Seller nor TMCC is in violation of its
charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its
properties are bound which could have a material adverse effect on the
transactions contemplated herein or in the Basic Documents. The
execution, delivery and performance of this Agreement and the Basic
Documents and the issuance and sale of the Certificates and compliance
with the terms and provisions of the Certificates will not, subject to
obtaining any consents or approvals as may be required under the
securities laws of various jurisdictions (in the United States and
elsewhere), result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court
having jurisdiction over the Seller or TMCC or any of their respective
properties or any agreement or instrument to which the Seller or TMCC
is a party or by which the Seller or TMCC is bound or to which any of
their respective properties is subject, or with the charter or by-laws
of the Seller or TMCC, and each of the Seller and TMCC has full
corporate power and authority to enter into this Agreement and the
Basic Documents and to consummate the transactions contemplated hereby
and thereby.
(vi) This Agreement has been duly authorized, executed and
delivered by the Seller and TMCC.
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(vii) The Seller has caused to be filed with the Commission
on April 8, 1997 the Current Report on Form 8-K (as amended) with
respect to the Term Sheet dated April 7, 1997 relating to the
Certificates.
(b) As of the Closing Date, the representations and warranties of the
Seller and of TMCC in the Basic Documents will be true and correct, and the
Underwriters may rely on such representations and warranties as if they were
set forth herein in full.
Section 3. Purchase, Sale and Delivery of the Certificates. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Seller agrees to sell
to the several Underwriters, and (i) the Class A Certificates Underwriters
agree, severally and not jointly, to purchase from the Seller, the respective
principal amounts of Class A Certificates set forth opposite the names of the
Class A Certificates Underwriters in Schedule I-A hereto, (ii) the Class B
Certificates Underwriters agree, severally and not jointly, to purchase from
the Seller, the respective principal amounts of Class B Certificates set forth
opposite the names of the Class B Certificates Underwriters in Schedule I-B
hereto and (iii) the Class C Certificates Underwriters agree, severally and not
jointly, to purchase from the Seller, the respective principal amounts of Class
C Certificates set forth opposite the names of the Class C Certificates
Underwriters in Schedule I-C hereto. The Certificates are to be purchased at a
purchase price equal to (i) in the case of the Class A Certificates, 99.783028%
of the aggregate principal amount thereof plus accrued interest at the Class A
Pass Through Rate from (and including) April 15, 1997, to (but excluding) the
Closing Date, (ii) in the case of the Class B Certificates, 99.610818% of the
aggregate principal amount thereof plus accrued interest at the Class B Pass
Through Rate from (and including) April 15, 1997, to (but excluding) the
Closing Date, and (iii) in the case of the Class C Certificates, 99.542572% of
the aggregate principal amount thereof plus accrued interest at the Class C
Pass Through Rate from (and including) April 15, 1997, to (but excluding) the
Closing Date.
The Class A Certificates will initially be represented by four
certificates respectively representing $200,000,000.00, $200,000,000.00,
$200,000,000.00 and $122,871,000.00 aggregate principal amount of Class A
Certificates registered in the name of Cede & Co., the nominee of The
Depository Trust Company, New York, New York ("DTC") (the "Class A DTC
Certificates"). The Class B Certificates will initially be represented by one
certificate representing the entire aggregate principal amount of Class B
Certificates registered in the name of Cede & Co., the nominee of DTC (the
"Class B DTC Certificates"). The Class C Certificates will initially be
represented by one certificate representing $11,325,000.00 aggregate principal
amount of Class C Certificates registered in the name of Cede & Co., the
nominee of DTC (the "Class C DTC Certificates", and together with the Class A
DTC Certificates and the Class B DTC Certificates, the "DTC Certificates") and
one definitive certificate representing $553.40 aggregate principal amount of
Class C Certificates registered in the name of the Seller. The interests of
beneficial owners of the DTC Certificates will be represented by book entries
on the records of DTC and participating members thereof. Definitive
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certificates evidencing the DTC Certificates will be available only under the
limited circumstances specified in the Pooling and Servicing Agreement.
The Seller will deliver the DTC Certificates to the Representatives
for the respective securities accounts of the Underwriters at the office of
DTC, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, against payment to
the Seller of the purchase price for the Certificates by wire transfer in
immediately available funds, at 10:00 a.m., New York time, on April 17, 1997,
or at such other time not later than seven full business days thereafter as the
Seller, TMCC and the Representatives determine, such time being herein referred
to as the "Closing Date". The certificates evidencing the DTC Certificates
will be made available for checking and packaging at the office of Bankers
Trust Company in The City of New York at least 24 hours prior to the Closing
Date.
Section 4. Offering by the Underwriters. It is understood that the
several Underwriters propose to offer the Certificates for sale to the public
as set forth in the Prospectus.
Section 5. Certain Agreements of the Seller and TMCC. Each of the
Seller and TMCC, as the case may be, jointly and severally, covenants and
agrees with the several Underwriters that:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Seller will file the Prospectus with
the Commission pursuant to and in accordance with Rule 424(b) not
later than the second business day following the execution and
delivery of this Agreement. The Seller will advise the
Representatives promptly of any such filing pursuant to Rule 424(b).
If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the
Certificates under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Seller will file the
Additional Registration Statement or a post-effective amendment
thereto, as the case may be, with the Commission pursuant to and in
accordance with Rule 424(b) on or prior to 10:00 p.m., New York time,
on the date of this Agreement or, if earlier, on or prior to the time
the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
the Underwriter.
(b) The Seller will advise the Representatives promptly
of any proposal to amend or supplement the initial registration
statement or any additional registration statement as filed or the
related prospectus or any Registration Statement or the Prospectus and
will not effect any such amendment or supplement without the consent
of the Representatives; and the Seller will also advise the
Representatives promptly of the effectiveness of each Registration
Statement (if the related Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplement of any Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect
of any Registration Statement and will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
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(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
or supplement the Prospectus to comply with the Act, the Seller will
promptly notify the Representatives and will promptly prepare and
file, or cause to be prepared and filed, with the Commission an
amendment or supplement which will correct such statement or omission,
or an amendment or supplement which will effect such compliance.
Neither the Representatives' consent to, nor the delivery by the
Representatives of, any such amendment or supplement shall constitute
a waiver of any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Seller will cause the
Trustee to make generally available to the Certificateholders an
earnings statement with respect to the Trust covering a period of at
least 12 months beginning after the Effective Date of the Initial
Registration Statement (or of any Additional Registration Statement)
that will satisfy the provisions of Section 11(a) of the Act. For the
purpose of the preceding sentence, "Availability Date" means the 45th
day after the end of the Seller's fourth fiscal quarter following the
Seller's fiscal quarter that includes such Effective Date, except
that, if such fourth fiscal quarter is the last quarter of the
Seller's fiscal year, "Availability Date" means the 90th day after the
end of such fourth fiscal quarter.
(e) The Seller will furnish to the Representatives copies
of each Registration Statement as originally filed and each amendment
thereto (in each case at least two of which will include all
exhibits), and to the Underwriters, the Prospectus and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as the Representatives may reasonably request.
The Prospectus shall be so furnished no later than 3:00 p.m., New York
City time, on the second business day following the later of the
execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other documents shall be
furnished as soon as available. The Seller will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Seller will arrange for the qualification of the
Certificates for sale under the securities laws of such jurisdictions
in the United States as the Representatives may reasonably designate
and will continue such qualifications in effect so long as required
for the distribution of the Certificates, provided that the Seller
shall not be obligated to qualify to do business nor become subject to
service of process generally, but only to the extent required for such
qualification, in any jurisdiction in which it is not currently so
qualified.
(g) The Seller will use its reasonable efforts to list
the Class A Certificates on the Luxembourg Stock Exchange and The
Stock Exchange of Hong Kong Limited, subject only to notice of
issuance and for clearance of the Class A Certificates.
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(h) So long as any of the Certificates are outstanding,
the Seller or TMCC, as the case may be, will deliver or cause to be
delivered to the Representatives (i) copies of each report regarding
the Certificates mailed to Certificateholders pursuant to Section 4.10
of the Pooling and Servicing Agreement, (ii) the annual statement as
to compliance and the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Sections 3.11 and
3.12 of the Pooling and Servicing Agreement (as amended), as soon as
such statements are furnished to the Trustee, (iii) copies of all
documents required to be filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any order of the Commission thereunder and (iv) such other information
concerning the Seller, TMCC (relating to the Receivables, the
servicing thereof or the ability of TMCC to act as Servicer), the
Certificates or the Trust as the Representatives may reasonably
request from time to time.
(i) The Seller and TMCC will pay all expenses incident to
the performance of their respective obligations under this Agreement,
including without limitation, (i) expenses incident to the printing,
reproduction and distribution of the Registration Statement as
originally filed and each amendment thereto and the Prospectus
(including any amendments and supplements thereto), (ii) the fees and
disbursements of the Trustee and its counsel, (iii) the fees and
disbursements of counsel to the Seller and TMCC (as previously agreed)
and the independent public accountants of the Seller, (iv) the fees
charged by Xxxxx'x Investors Service, Inc. ("Moody's") and Standard &
Poor's Ratings Services ("Standard & Poor's", and together with
Moody's, the "Rating Agencies") in connection with the rating of the
Certificates, (v) the fees of DTC in connection with the book-entry
registration of the DTC Certificates, (vi) the fees and expenses of
listing the Class A Certificates on each of the Luxembourg Stock
Exchange and The Stock Exchange of Hong Kong Limited, and the fees and
expenses of any counsel or listing agent in connection therewith and
(vii) expenses incurred in distributing the Prospectus (including any
amendments and supplements thereto) to the Underwriters, and will
reimburse the Underwriters for any expenses (including reasonable fees
and disbursements of counsel) incurred by the Underwriters in
connection with the qualification of the Certificates for sale under
the securities laws of such jurisdictions in the United States as the
Representatives may designate pursuant to Section 5(f) hereof.
(j) On or before the Closing Date, the Seller and TMCC
shall cause their respective books and records (including any computer
records) relating to the Receivables to be marked to show the Trust's
absolute ownership of the Receivables, and from and after the Closing
Date neither the Seller nor TMCC, as Servicer, shall take any action
inconsistent with the Trust's ownership of such Receivables, other
than as permitted by the Pooling and Servicing Agreement or as
required by law.
(k) For a period of 14 days from the date hereof, neither
the Seller, TMCC nor any of their respective affiliates will, without
the prior written consent of the
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Representatives, directly or indirectly, offer, sell or contract to
sell or announce the offering of, in a public or private transaction,
any other collateralized securities similar to the Certificates.
(l) So long as any Certificates are outstanding, the
Seller and TMCC will cause to be delivered to the Representatives a
reliance letter relating to each Opinion of Counsel delivered to
either Rating Agency by counsel to the Seller or counsel to TMCC
pursuant to either Basic Document.
(m) To the extent, if any, that the rating at the Closing
Date provided with respect to the Certificates by either Rating Agency
is conditional upon the furnishing of documents or the taking of any
other actions by the Seller or TMCC, the Seller or TMCC, as the case
may be, shall furnish such documents and take any such other actions
as may be required.
Section 6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Certificates will be subject to the accuracy of the respective representations
and warranties on the part of the Seller and TMCC herein, to the accuracy of
the statements of the Seller and TMCC made in any officers' certificates
pursuant to the provisions hereof, to the performance by the Seller and TMCC of
their respective obligations hereunder and to the following additional
conditions precedent:
(a) On (i) the date of this Agreement, the
Representatives and the Seller shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
such Effective Time is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of Price Waterhouse LLP
confirming that they are independent public accountants with respect to
the Seller and TMCC within the meaning of the Act and the Rules and
Regulations, with respect to certain information contained in the
Registration Statements and the Prospectus and substantially in the
form of the draft to which the Representatives previously have agreed
and otherwise in form and in substance satisfactory to the
Representatives and counsel for the Underwriters and (ii) the Closing
Date, the Representatives and the Seller shall have received a letter,
dated as of the Closing Date, from Price Waterhouse LLP, updating the
letter referred to in clause (i) above, in form and substance
satisfactory to the Representatives and counsel for the Underwriters.
As used in this subsection, (i) "Registration Statements" shall mean
(A) the Initial Registration Statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, if the Effective Time of the Initial Registration
Statement is subsequent to the date of this Agreement, or (B) the
Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective
Time,
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if the Effective Time is prior to the execution and delivery of this
Agreement but the Effective Time of the Additional Registration
Statement is subsequent to such execution and delivery, and (ii)
"Prospectus" shall mean the prospectus with respect to the
Certificates, together with any supplement thereto.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 p.m., New York time, on the date of this Agreement or such later
date as shall have been consented to by the Representatives. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) hereof. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 p.m., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by the Underwriter. Prior to the
Closing Date, no stop order suspending the effectiveness of any
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Seller or the Representatives, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any material adverse
change in the condition, financial or otherwise, or in the business
affairs or business prospects of the Seller or TMCC which, in the
reasonable judgment of the Representatives (after consultation with the
Underwriters), materially impairs the investment quality of the
Certificates, or makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Certificates; (ii) any
downgrading in the rating of any debt securities of TMCC or Toyota
Motor Sales, U.S.A., Inc. or any of their direct or indirect
subsidiaries by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act),
or any public announcement that any such organization has under
surveillance or review its rating of any such debt securities (other
than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, the Luxembourg Stock Exchange
or The Stock Exchange of Hong Kong Limited or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of TMCC on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by federal, California or
New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of
war by the United States Congress or any other substantial national or
international calamity or emergency if, in the reasonable judgment of
the Representatives (after consultation with the Underwriters), the
effect of any such outbreak, escalation, declaration, calamity or
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emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Certificates.
(d) The Representatives shall have received:
(1) The favorable opinion, dated the Closing Date, of
Xxxxxxx & Xxxxx L.L.P., special counsel for the Seller and TMCC, in
form and scope satisfactory to the Representatives, to the effect
that:
(i) Each Basic Document has been duly authorized
by all necessary corporate action on the part of each of the
Seller and TMCC and has been executed and delivered by each of
the Seller and TMCC and, assuming the due authorization,
execution and delivery thereof by the Trustee, constitutes a
legally valid and binding obligation of each of the Seller and
TMCC enforceable in accordance with its respective terms,
except as limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect
affecting creditors' rights generally and by the application
of general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in
equity), including, without limitation (a) the possible
unavailability of specific performance, injunctive relief or
any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
(ii) The Certificates have been duly and validly
authorized and, when executed and authenticated by the Trustee
as specified in the Pooling and Servicing Agreement and
delivered against payment of the consideration specified in
this Agreement, will be duly and validly issued and
outstanding and entitled to the benefits of the Pooling and
Servicing Agreement, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect affecting creditors' rights generally and
by the application of general principles of equity (regardless
of whether enforcement is considered in a proceeding at law or
in equity), including, without limitation (a) the possible
unavailability of specific performance, injunctive relief or
any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
(iii) Neither the Seller nor the Trust is required
to be registered under the Investment Company Act of 1940, as
amended.
(iv) With respect to Financed Vehicles in the
State of California, no filing or other action other than (A)
the filing of a UCC financing statement naming TMCC as
transferor and the Seller as the transferee, and (B) the
filing of a UCC financing statement naming the Seller as the
transferor and the Trustee as transferee, which filings have
been completed, is necessary to perfect the transfer and
assignment of
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TMCC's security interest in such Financed Vehicles to the
Seller, and the Seller's security interest in such Financed
Vehicles to the Trustee, respectively, and as a result of such
transfer and assignment and filing of such financing
statements, the Trustee has a first perfected security
interest in such Financed Vehicles, except that so long as
TMCC is named as the legal owner and lien holder on a
certificate of title, TMCC has the ability to release the
security interest in the Financed Vehicle or to assign it to
another party.
(v) The Trust will not be classified as an
association taxable as a corporation for federal or California
income tax purposes and, instead, under subpart E, part I of
subchapter J of Chapter 1 of Subtitle A of the Internal
Revenue Code of 1986, as amended, the Trust will be treated as
a grantor trust and each holder of Certificates will be
treated as the owner of an undivided interest in the income
and corpus attributable to the Trust.
(vi) The statements in the Prospectus Supplement
under "Summary--Tax Status" and "--ERISA Considerations", and
"ERISA Considerations", and in the Base Prospectus under the
"Summary--Tax Status" and "--ERISA Considerations", "Certain
Federal Income Tax Consequences", and "ERISA Considerations",
to the extent that they constitute matters of law or legal
conclusions with respect thereto, have been reviewed by such
counsel and are correct in all material respects.
(vii) This Agreement has been duly authorized by
all necessary corporate action on the part of each of the
Seller and TMCC, and has been duly executed and delivered by
each of the Seller and TMCC.
(viii) No authorization, approval, consent or order
of any court or governmental agency or body is required, under
the Federal law of the United States or the laws of the State
of California or the State of New York, for the consummation
by either the Seller or TMCC of the transactions contemplated
in this Agreement or the Basic Documents except such as may be
required under the Act, the Rules and Regulations or state
securities laws, and those authorizations, approvals,
consents, orders and filings which have previously been
obtained or made and are in full force and effect as of the
Closing Date; provided, that such counsel need express no
opinion as to state securities laws.
(ix) To such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened,
to which the Seller or TMCC is a party or of which any
property of the Seller or TMCC is the subject required to be
disclosed in the Registration Statements, other than those
disclosed therein, (A) asserting the invalidity of this
Agreement, any Basic Document or the Certificates, (B) seeking
to prevent the issuance of the Certificates or the
consummation of any of the
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transactions contemplated by this Agreement or the Basic
Documents, (C) that would, if determined adversely to TMCC or
the Seller, materially and adversely affect the performance by
the Seller or TMCC of its respective obligations under, or the
validity or enforceability of, this Agreement, either Basic
Document or the Certificates or (D) seeking adversely to
affect the federal income tax attributes of the Certificates
as described in the Base Prospectus under the heading "Certain
Federal Income Tax Consequences" or the California income tax
attributes of the Certificates.
(x) At the time of execution and delivery of (A)
the Receivables Purchase Agreement, TMCC had the corporate
power and corporate authority to transfer the Receivables and
such other property being transferred to the Seller pursuant
to the Receivables Purchase Agreement, and (B) the Pooling and
Servicing Agreement, the Seller had the corporate power and
corporate authority to transfer the Receivables and such other
property being transferred to the Trustee pursuant to the
Pooling and Servicing Agreement and to cause the transfer of
the Certificates to the Underwriters.
(xi) The Certificates and the Basic Documents each
conform in all material respects with the respective
descriptions thereof contained in the Registration Statements
and the Prospectus.
(xii) The statements in the Registration Statements
and Base Prospectus under the heading "Certain Legal Aspects
of the Receivables", to the extent that they constitute
matters of law or legal conclusions are correct in all
material respects.
(xiii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended.
(xiv) The Receivables constitute "chattel paper" as
such term is defined in the California Uniform Commercial Code.
(xv) The Initial Registration Statement and any
Additional Registration Statement filed with the Commission
has been declared effective under the Act, and, to such
counsel's knowledge upon due inquiry, no stop order suspending
the effectiveness of a Registration Statement has been issued
under the Act or proceedings therefor initiated or threatened
by the Commission, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of
its respective effective or issue date, complied or complies
in all material respects with the requirements as to form of
the Act and the Rules and Regulations.
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In addition, such counsel shall state that such counsel has
participated in conferences with the officers and other representatives of TMCC
and the Seller, representatives of the independent public accountants therefor
and the Underwriters, at which the contents of the Registration Statement and
the Prospectus and related matters were discussed and, although such counsel is
not passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained therein and has not made
any independent check or verification thereof, during the course of such
participation (relying as to factual matters as to materiality to a large
extent upon the statements of officers and other representatives of TMCC and
the Seller), such counsel does not believe that any Registration Statement, at
the related Effective Time, or any such amendment or supplement, as of its
effective date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, at the date thereof
(or any such amendment or supplement, as of its respective date) or at the
Closing Date included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no
opinion as to any financial statements or other financial or statistical data
contained in any Registration Statement or the Prospectus.
(2) The favorable opinion, dated the Closing Date, of
Xxxx X. Xxxxx, Esq., General Counsel of TMCC and counsel to the
Seller, in form and scope to the Representatives and their counsel, to
the effect that:
(i) Each of the Seller and TMCC is a corporation
duly organized, existing and in good standing under the laws
of the State of California.
(ii) To such counsel's knowledge, each of the
Seller and TMCC is duly incorporated or qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which their respective ownership or lease
of substantial properties or the conduct of their respective
businesses requires such qualification and in which the
failure to so qualify and be in good standing would materially
adversely affect their respective businesses or financial
condition.
(iii) To such counsel's knowledge (A) there are no
legal or governmental proceedings pending or threatened
against TMCRC or in connection with the origination and
servicing of the Receivables by TMCC which are required to be
disclosed in the Registration Statements, other than those
disclosed therein, (B) there are no legal or governmental
proceedings to which TMCC is a party or to which any of its
property is subject which are not described in TMCC's Annual
Report on Form 10-K for the year ended September 30, 1996, or
its Quarterly Reports for the quarter ended December 31, 1996,
which are required to be disclosed therein other than those
disclosed therein and (C) there are no pending legal or
governmental proceedings to which the Seller is a party or to
which any of its property is subject.
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(iv) To such counsel's knowledge (A) no default
exists in the due performance or observance by TMCC of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it may be
bound, which default would have a material adverse effect on
the financial condition, earnings, business affairs, business
prospects, properties or results of operations of TMCC and its
subsidiaries considered as one enterprise, and (B) other than
this Agreement, and the Basic Documents and the corresponding
agreements in connection with the Toyota Auto Receivables
1995-A Grantor Trust and the Toyota Auto Receivables 1996-A
Grantor Trust, the Seller is not a party to any material
contract, indenture, mortgage, loan agreement, note, lease or
other instrument.
(v) The transfer of the Receivables and the other
property of the Trust transferred by TMCC to the Seller
pursuant to the Receivables Purchase Agreement, the execution,
delivery and performance of the Basic Documents and this
Agreement and the consummation of the transactions herein and
therein contemplated will not (A) conflict with or constitute
a breach of, or default under, or result in the creation or
imposition of any Lien upon any property or assets of TMCC or
any of its subsidiaries pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or other
instrument known to such counsel to which TMCC or any of its
subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of TMCC or
any of its subsidiaries is subject, (B) result in any
violation of the provisions of the charter or bylaws of TMCC
or (C) to such counsel's knowledge, result in any violation of
any applicable law, administrative regulation or
administrative or court decree.
(vi) The transfer of the Receivables to the
Trustee acting on behalf of the Trust, the assignment of the
security interest of the Seller in the Financed Vehicles, the
issuance and sale of the Certificates, and the execution and
delivery of this Agreement, the Basic Documents and the
Certificates, and the consummation of the transactions
contemplated herein and therein will not (A) conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any Lien upon any property or assets
of the Seller pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which the Seller is a party or by which it may be bound, or to
which any of the property or assets of the Seller is subject,
(B) result in any violation of the provisions of the charter
or bylaws of the Seller or (C) to such counsel's knowledge,
result in any violation of any applicable law, administrative
regulation or administrative or court decree.
(vii) Each of the Seller and TMCC has obtained all
necessary licenses and approvals under the federal law of the
United States and the laws of the State of California to
conduct their respective businesses in which the failure to
obtain such
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licenses and approvals would render any Receivable or any
other material part of the corpus of the Trust unenforceable
or would materially and adversely affect the ability of either
the Seller or TMCC to perform any of their respective
obligations under, or the enforceability of, either Basic
Document.
(viii) Such counsel is familiar with the standard
operating procedures of TMCC relating to the acquisition by
TMCC of a first perfected security interest in the automobiles
and/or light duty trucks financed by the retail installment
sale contracts purchased by TMCC in the ordinary course of its
business and relating to the sale to TMCC of such contracts
and such security interests in the automobiles or light duty
trucks financed thereby in the ordinary course of its
business. Assuming that such standard procedures are followed
with respect to the perfection of security interests in the
Financed Vehicles (and such counsel has no reason to believe
that TMCC has not or will not continue to follow its standard
procedures in connection with the perfection of first
perfected security interests in the Financed Vehicles), TMCC
has acquired a first perfected security interest in the
Financed Vehicles.
(3) The favorable opinion, dated the Closing Date, of
Xxxxxxxx, Xxxxxx, Xxxxxxx & Xxxxxxx, special California counsel to the
Seller and TMCC, in form and scope satisfactory to the Representatives
and their counsel, to the effect that, assuming the due authorization,
execution and delivery thereof by the parties thereto, each of the
Receivables in the form attached to such opinion constitutes the
valid, binding and enforceable agreement of the parties thereto; and
such Receivables comply as to content and form with all applicable
state laws and federal disclosure laws relating to consumer credit,
including without limitation, consumer protection laws.
(4) Reliance letters relating to each opinion rendered to
either Rating Agency by (A) Xxxxxxx & Xxxxx L.L.P and (B) Xxxx X.
Xxxxx, Esq.
(5) The favorable opinion, dated the Closing Date, of
counsel to the Trustee, in form and scope satisfactory to the
Representatives and counsel for the Underwriters, to the effect that:
(i) The Trustee is a New York banking corporation
duly organized and validly existing under the laws of the
State of New York, and is duly authorized and empowered to
exercise trust powers under applicable law.
(ii) The Trustee has full power and authority to
execute, deliver and perform its obligations under the Pooling
and Servicing Agreement and has taken all necessary action to
authorize the execution, delivery and performance of its
obligations under the Pooling and Servicing Agreement.
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(iii) The Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Trustee, and
constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with
its terms, except that certain of such obligations may be
exercisable solely against the estate of the Trust and except
that such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation or other
similar laws applicable to New York banking corporations
affecting the enforcement of creditors' rights generally, and
by general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(iv) The Certificates have been duly executed,
authenticated and delivered by the Trustee in accordance with
the terms of the Pooling and Servicing Agreement.
(v) The execution, delivery and performance by the
Trustee of the Pooling and Servicing Agreement shall not (a)
violate any provision of any law governing the banking or
trust powers of the Trustee or, to the best knowledge of such
counsel, any order, writ, judgment or decree of any court,
arbitrator or governmental authority applicable to the Trustee
or any of its assets, (b) shall not violate any provision of
the corporate charter or by-laws of the Trustee and (c) to the
best of such counsel's knowledge, violate any material
provision of, constitute, with or without notice or lapse of
time, a material default under, or result in the creation or
imposition of any lien on any properties of the Trust pursuant
to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which the Trustee is a
party.
(vi) The execution, delivery and performance by the
Trustee of the Pooling and Servicing Agreement shall not
require the authorization, consent or approval of, the giving
of notice to, the filing or registration with or the taking of
any other action in respect of, any governmental authority or
agency regulating the banking or corporate trust activities of
the Trustee.
(6) The favorable opinion of Xxxxxxx & Xxxxx L.L.P.,
counsel for the Underwriters, dated the Closing Date, with respect to
the existence of the Seller and TMCC, the validity of the Certificates
and such other related matters as the Representatives shall request
and the Seller and TMCC shall have furnished or caused to be furnished
to such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received a
certificate, dated the Closing Date, signed by the President or any
Vice President and a principal financial or accounting officer
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of (i) the Seller in which such officers shall state that, to the best
of their knowledge after reasonable investigation, (A) the
representations and warranties of the Seller in this Agreement are
true and correct, (B) the Seller has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, (C) no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to
the best of their knowledge, are contemplated by the Commission, (D)
the Additional Registration Statement, if any, satisfying the
requirements of Rule 462(b)(1) and Rule 462(b)(3) was filed in
accordance with Rule 462(b) (including payment of the applicable
filing fee in accordance with Rule 111(a) or Rule 111(b) under the
Act) prior to the time the Prospectus was printed or distributed to
the Underwriter and (E) subsequent to the date of this Agreement,
there has been no material adverse change in the condition, financial
or otherwise, or in the business affairs or business prospects of the
Seller except as set forth or contemplated in the Prospectus, and (ii)
TMCC in which such officers shall state that, to the best of their
knowledge after reasonable investigation, (A) the representations and
warranties of TMCC in this Agreement are true and correct, (B) TMCC
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder and (C) subsequent to the
date of this Agreement there has been no material adverse change in
the condition, financial or otherwise, or in the business affairs or
business prospects of TMCC which would materially and adversely affect
the performance by TMCC of its obligations under this Agreement or the
Basic Documents.
(f) The Class A Certificates shall be rated "Aaa" by
Xxxxx'x and "AAA" by Standard & Poor's.
(g) The Class B Certificates shall be rated at least "A2"
by Xxxxx'x and at least "A" by Standard & Poor's.
(h) The Class C Certificates shall be rated at least
"Baa3" by Xxxxx'x and at least "BBB" by Standard & Poor's.
Section 7. Indemnification and Contribution.
(a) The Seller and TMCC will, jointly and severally, indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or
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defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that neither the Seller nor TMCC will be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Seller by any Underwriter through the Representatives specifically for use
therein.
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless each of the Seller and TMCC against any losses, claims,
damages or liabilities to which the Seller or TMCC may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus or any amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Seller by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Seller and TMCC in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Seller and TMCC on the one hand and the Class A Certificates
Underwriters, the Class B Certificates Underwriters or the Class C Certificates
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Underwriters, as applicable, on the other hand, from the offering of the
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Seller and TMCC on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Seller and TMCC on the
one hand and the Class A Certificates Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Seller bear to the total
underwriting discounts and commissions received by the Class A Certificates
Underwriters, the relative benefits received by the Seller and TMCC on the one
hand and the Class B Certificates Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Seller bear to the total underwriting
discounts and commissions received by the Class B Certificates Underwriters and
the relative benefits received by the Seller and TMCC on the one hand and the
Class C Certificates Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Seller bear to the total underwriting discounts and
commissions received by the Class C Certificates Underwriters. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Seller or TMCC or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Certificates underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Seller and TMCC under this Section
shall be in addition to any liability that the Seller or TMCC may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to any
liability that the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Seller, to each
officer of the Seller who has signed any Registration Statement and to each
person, if any, who controls the Seller or TMCC within the meaning of the Act.
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Section 8. Default of Underwriters. If any Class A Certificates
Underwriter or Underwriters default in their obligations to purchase
Certificates hereunder and (i) the aggregate principal amount of Class A
Certificates (in the case of the Class A Certificates Underwriters), that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of the Class A Certificates, (ii) the
aggregate principal amount of Class B Certificates (in the case of the Class B
Certificates Underwriters) that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of Class B Certificates and (iii) the aggregate principal amount of Class C
Certificates (in the case of the Class C Certificates Underwriters) that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Class C Certificates, the
Representatives may make arrangements satisfactory to the Seller and TMCC for
the purchase of such Class A Certificates, Class B Certificates or Class C
Certificates, as the case may be, by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Class A Certificates Underwriters shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the Class
A Certificates, the non-defaulting Class B Certificates Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder,
to purchase the Class B Certificates, and the non-defaulting Class C
Certificates Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Class C Certificates, in each
case that such defaulting Underwriters agreed but failed to purchase. If any
such default or defaults occur and such default or defaults exceed 10% of the
total principal amount of the Class A Certificates, the Class B Certificates or
the Class C Certificates, as the case may be, and arrangements satisfactory to
the Seller and TMCC for the purchase of such Certificates by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Seller or
TMCC, except as provided in Section 9 hereof. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
Section 9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller and TMCC or their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation or statement
as to the results thereof, made by or on behalf of any Underwriter, the Seller,
TMCC or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the
Certificates. If this Agreement is terminated pursuant to Section 8 hereof or
if for any reason the purchase of the Certificates by the Underwriters is not
consummated, the Seller and TMCC shall remain responsible for the expenses to
be paid or reimbursed by the Seller and TMCC pursuant to Section 5(i) hereof
and the respective obligations of the Seller, TMCC and the Underwriters
pursuant to Section 7 hereof shall remain in effect. If the purchase of the
Certificates by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8
hereof or the occurrence of any event specified in clause (iii), (iv) or (v) of
Section 6(c) hereof, the Seller and TMCC will reimburse the Underwriters for
all
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out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Certificates.
Section 10. Notices. All communications hereunder will be in writing
and, if sent to the Representatives or the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the Representatives c/o Credit Suisse
First Boston Corporation, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset-Finance and to Xxxxxx Brothers Inc., 3 World Financial Center,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention Fixed Income Syndicate;
if sent to the Seller, will be mailed, delivered or telegraphed and confirmed
to it at Toyota Motor Credit Receivables Corporation, 00000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxx -- President; or
if sent to TMCC, will be mailed, delivered or telegraphed and confirmed to it
at Toyota Motor Credit Corporation, 00000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxx -- Senior Vice President and General
Manager. Notwithstanding the foregoing, any notice to an Underwriter pursuant
to Section 7 hereof will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
Section 11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
Section 12. Representation of Underwriters. The Representatives will
act for the several Underwriters in connection with the transactions described
in this Agreement, and any action taken by the Representatives under this
Agreement will be binding upon all the Underwriters.
Section 13. Representations and Warranties of Underwriters. With
respect to any offers or sales of the Certificates outside of the United States
(and solely with respect to any such offers and sales) each Underwriter
severally and not jointly makes the following representations and warranties:
(a) Each Underwriter represents and agrees that it will comply
with all applicable laws and regulations in each jurisdiction in which it
purchases, offers or sells Certificates or possesses or distributes the
Prospectus or any other offering material and will obtain any consent, approval
or permission required by it for the purchase, offer or sale by it of
Certificates under the laws and regulations in force in any jurisdiction to
which it is subject or in which it makes such purchases, offers or sales and
neither the Seller or TMCC shall have any responsibility therefor;
(b) No action has been or will be taken by such Underwriter that
would permit a public offering of the Certificates or possession or
distribution of any offering material in relation to the Certificates in any
jurisdiction where action for that purpose is required unless the Seller or
TMCC has agreed to such actions and such actions have been taken;
(c) Each Underwriter represents and agrees that it will not offer,
sell or deliver any of the Certificates or distribute any such offering
material in or from any jurisdiction except under
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circumstances which will result in compliance with applicable laws and
regulations and which will not impose any obligation on the Seller or TMCC or
the Underwriters;
(d) Such Underwriter acknowledges that it is not authorized to
give any information or make any representations in relation to the
Certificates other than those contained or incorporated by reference in the
Prospectus for the Certificates and such additional information, if any, as the
Seller or TMCC shall, in writing, provide to and authorize such Underwriter so
to use and distribute to actual and potential purchasers of Certificates;
(e) Each Underwriter represents and agrees that it has not,
directly or indirectly, offered or sold and will not, directly or indirectly,
offer or sell in Hong Kong, by means of any document, any Certificates other
than to persons whose ordinary business it is to buy or sell shares or
debentures, whether as principal or agent, or in circumstances which do not
constitute an offer to the public within the meaning of the Companies Ordinance
(Cap. 32) of Hong Kong. Each Underwriter further represents and agrees that,
unless it is a person who is permitted to do so under the securities laws of
Hong Kong, it has not issued, or had in its possession for the purposes of
issuing, and it will not issue, or have in its possession for the purposes of
issuing, any advertisement, invitation or document relating to Certificates
other than with respect to Certificates intended to be disposed of to persons
outside Hong Kong or to persons whose business involves the acquisition, or
disposal or holding of securities, whether as principal or agent;
(f) Each Underwriter has not offered or sold and, prior to the
expiry of the period of six months from the Closing Date, will not offer or
sell any Certificates to persons in the United Kingdom, except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995;
(g) Each Underwriter has complied and will comply with all
applicable provisions of the Financial Services Act 1986 ("FSA") with respect
to anything done by such Underwriter in relation to the Certificates in, from
or otherwise involving the United Kingdom; and
(h) Each Underwriter will have only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Certificates, to a person who is of a kind
described in Article 11(3) of the FSA (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom such document may otherwise lawfully be
issued or passed on.
Section 14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same Agreement.
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Section 15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Seller and TMCC and
the Underwriters in accordance with its terms.
Very truly yours,
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ Xxxxxx Xxxxx
-------------------------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President and General Manager
The foregoing Underwriting Agreement
is hereby confirmed and accepted, as
of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Title: Director
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: Managing Director
Acting on behalf of themselves and as
the Representatives of the several
Underwriters
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Schedule I-A
Principal Amount of
Underwriter Class A Certificates
----------- --------------------
Credit Suisse First Boston Corporation . . . . . . . . . . . . . . . . . $ 263,935,000.00
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 263,936,000.00
Xxxxxxx, Xxxxx & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,000,000.00
X.X. Xxxxxx & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,000,000.00
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated . . . . . . . . . . . $ 30,000,000.00
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . . . . . . . . . $ 30,000,000.00
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,000,000.00
Bear, Xxxxxxx & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . . . $ 15,000,000.00
First Chicago Capital Markets, Inc. . . . . . . . . . . . . . . . . . . . $ 15,000,000.00
UBS Securities LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 15,000,000.00
----------------------
Total . . . . . . . . . . . . . . . . . . . . . $ 722,871,000.00
======================
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Schedule I-B
Principal Amount of
Underwriter Class B Certificates
----------- --------------------
Credit Suisse First Boston Corporation. . . . . . . . . . . . . . . . . . $ 10,380,000.00
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 10,381,000.00
----------------------
Total . . . . . . . . . . . . . . . . . . . . . $ 20,761,000.00
======================
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Schedule I-C
Principal Amount of
Underwriter Class C Certificates
----------- --------------------
Credit Suisse First Boston Corporation. . . . . . . . . . . . . . . . . . $ 5,662,553.40
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5,663,000.00
----------------------
Total . . . . . . . . . . . . . . . . . . . . . $ 11,325,553.40
======================
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