EXHIBIT 4.3
RECEIVABLES PURCHASE AGREEMENT
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
and
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
as Purchaser
Dated as of July 1, 1999
TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS
SECTION 1.01 Definitions........................................................................... 1
SECTION 1.02 Other Definitional Provisions......................................................... 4
ARTICLE 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
ARTICLE III.
PAYMENT OF RECEIVABLES PURCHASE PRICE
SECTION 3.01 Payment of Receivables Purchase Price................................................ 13
ARTICLE IV.
TERMINATION
SECTION 4.01 Termination.......................................................................... 13
ARTICLE 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........................................................................... 14
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............................................................................. 15
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SECTION 5.13 Indemnification...................................................................... 15
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 July 1, 1999, between Toyota
Motor Credit Corporation, a California corporation, as seller, and Toyota
Motor Credit Receivables Corporation, a California corporation, as purchaser.
In consideration of the premises and mutual agreements herein contained,
each party agrees as follows for the benefit of the other party and for the
benefit of the 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.
"CLOSING DATE" shall mean July 22, 1999.
"CUTOFF DATE" shall mean July 1, 1999.
"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.
"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 U.S. Bank National Association, as
indenture trustee under the Indenture, or any successor trustee thereunder.
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"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 U.S. Bank National Association, as owner
trustee under the Trust Agreement, or any successor trustee thereunder.
"PURCHASER" shall mean Toyota Motor Credit Receivables Corporation, in
its capacity as purchaser of the Receivables under this Agreement, and its
successors and assigns.
"RECEIVABLE" means any retail installment sale contract executed by an
Obligor in respect of a Financed Vehicle, and all proceeds thereof and payments
thereunder, which Receivable shall be identified in the Schedule of Receivables.
"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
(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 $984,068,241.84.
"RELEASED WARRANTY AMOUNT" means, with respect to a Payment Date and to
a Warranty Receivable, the Deferred Prepayment, if any, for such Warranty
Receivable.
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"SALE AND SERVICING AGREEMENT" shall mean the Sale and Servicing
Agreement dated as of July 1, 1999, by and among Toyota Auto Receivables
1999-A Owner Trust, as issuer, Toyota Motor Credit Receivables Corporation,
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 1999-A Owner Trust, a Delaware
business trust.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement dated
as of July 1, 1999, by and between Toyota Motor Credit Receivables
Corporation, as depositor, U.S. Bank National Association, as Owner Trustee,
and First Union Trust Company, National Association, as Delaware Co-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) and (ii) any other proceeds in respect of such
Receivable previously received (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 plus (b) interest on such unpaid 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).
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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.
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
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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.
(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.
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(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 corporation in good
standing under the laws of the State of California, and has corporate
power and authority to own its properties and to conduct its business
as such properties shall be currently owned and such business is
presently conducted, and had at all relevant times, and shall now have,
corporate power, authority and legal right to acquire and own the
Receivables.
(ii) DUE QUALIFICATION. The Purchaser shall be duly qualified to
do business as a foreign corporation in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions
in which the ownership or lease of property or the conduct of its
business shall require such qualifications and where
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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 corporate
power and authority to execute and deliver this Agreement and to
carry out its terms; the Purchaser shall have full corporate 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 corporate action.
(iv) BINDING OBLIGATION. This Agreement shall constitute a legal,
valid and binding obligation of the Purchaser enforceable in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights generally or by general
principles of equity.
(v) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of
time) a default under, the articles of incorporation or bylaws of
the Purchaser, or conflict with or breach any of the material terms
or provisions of, or constitute (with or without notice or lapse of
time) a default under, any indenture, agreement or other instrument
to which the Purchaser is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than 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.
(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
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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 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 ▇▇▇▇▇▇▇▇-▇▇▇▇
Warranty Act, Federal Reserve Board Regulations B, M and Z, to the
extent applicable, state adaptations of the National Consumer Act and of
the Uniform Consumer Credit Code and other consumer credit, equal credit
opportunity and disclosure laws, 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.
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(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.
(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
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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 TMCC's normal requirements. The
terms of each Receivable allow, but do not require TMCC to (and TMCC, 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.
(xix) ONE ORIGINAL. There shall be only one original executed copy
of each Receivable.
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(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 4 nor more than 54; (ii)
each Receivable provides for the payment of a finance charge based on an
APR ranging from 8% to 15%; (iii) each Receivable shall have had an
original principal balance of not less than $1,090.01 and not more than
$50,000 and, as of the Cutoff Date, an unpaid principal balance of not
less than $250 nor more than $50,000; (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 6 or more 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 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, 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,
11
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 1999-A Owner Trust.
(c) CONVEYANCE OF RECEIVABLES. The Seller covenants and agrees that
it will not convey, assign, exchange or otherwise transfer the Receivables to
any Person prior to the termination of this Agreement pursuant to Article
Four hereof.
(d) NO IMPAIRMENT. The Seller shall take no action, nor omit to take
any action, which would impair the rights of the Purchaser in any Receivable,
nor shall it, except as 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.
ARTICLE III.
PAYMENT OF RECEIVABLES PURCHASE PRICE
12
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) $951,998,567.84, the net cash proceeds
from the public offering by the Purchaser of the Notes (less amounts retained
to pay expenses of the Purchaser and to fund the Reserve Account Initial
Deposit), and (ii) $32,069,674 evidenced by 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 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
13
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 Motor Credit Receivables Corporation,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President;
(b) in the case of Toyota Motor Credit Corporation, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasury Department, Vice
President, Treasury; and (c) in the case of the Owner Trustee or the
Indenture Trustee, to U.S. Bank National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; 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 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 and the Trust
Agreement and Sale and Servicing Agreement; provided, however, that
simultaneously with the execution and delivery of this Agreement, the
Purchaser shall assign all of its right, title and interest herein to the
Owner
14
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.
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,
15
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.
(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/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President and
General Manager
TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION,
as Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
ACCEPTED:
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
and as Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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