EXECUTION COPY
TOYOTA AUTO RECEIVABLES 2002-C OWNER TRUST
$320,000,000 ASSET BACKED NOTES, CLASS A-2
$498,000,000 ASSET BACKED NOTES, CLASS A-3
$207,000,000 ASSET BACKED NOTES, CLASS A-4
UNDERWRITING AGREEMENT
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October 23, 2002
Banc of America Securities LLC
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Joint Global Coordinators,
Bookrunners and Representatives of the
several Underwriters
Ladies and Gentlemen:
Section 1. Introductory. Toyota Auto Finance Receivables LLC, a Delaware limited
liability company (the "Seller") and a wholly owned subsidiary of Toyota Motor
Credit Corporation, a California corporation ("TMCC"), proposes to sell to each
of the several underwriters named in Schedule I-A hereto (the "Class A
Underwriters" or the "Underwriters") $320,000,000 aggregate principal amount of
Floating Rate Asset Backed Notes, Class A-2 (the "Class A-2 Notes"),
$498,000,000 aggregate principal amount of 2.65% Asset Backed Notes, Class A-3
(the "Class A-3 Notes") and $207,000,000 aggregate principal amount of Floating
Rate Asset Backed Notes, Class A-4 (the "Class A-4 Notes" and together with the
Class A-2 Notes and the Class A-3 Notes, the "Offered Notes") of the Toyota Auto
Receivables 2002-C Owner Trust (the "Trust"). Concurrently with the issuance and
sale of the Offered Notes as contemplated herein the Trust will issue (i)
$430,000,000 aggregate principal amount of 1.80% Asset Backed Notes, Class A-1
(the "Class A-1 Notes" and together with the Offered Notes, the "Class A Notes")
and (ii) a revolving liquidity note dated October 31, 2002 (the "Liquidity Note"
and together with the Class A Notes, the "Notes"). The Trust will also issue a
non-interest bearing subordinated seller's interest (the "Subordinated Seller's
Interest"). The Subordinated Seller's Interest will represent an undivided
interest in the Trust and will be deemed to have a principal balance $44,995,380
as of the closing date. Neither the Class A-1 Notes nor the Subordinated
▇▇▇▇▇▇'s Interest will be sold hereunder. Banc of America Securities LLC and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated will act as representatives for the Class A-2,
Class A-3 and Class A-4 Underwriters, and in such capacities shall herein be the
"Representatives". The assets of the Trust will include, among other things, a
pool of retail installment sale contracts (the "Receivables") secured by the new
and used automobiles and light duty trucks financed thereunder (the "Financed
Vehicles") and certain monies due or to become due thereunder on or after
October 1, 2002 (the "Cutoff Date") and the other property and the proceeds
thereof to be
conveyed to the Trust pursuant to the Sale and Servicing Agreement to be dated
as of October 1, 2002 (the "Sale and Servicing Agreement") among the Trust, the
Seller and TMCC. TMCC purchased the Receivables from certain Toyota and Lexus
dealers. The Receivables and other assets of the Trust will be sold by TMCC to
the Seller pursuant to a Receivables Purchase Agreement (the "Receivables
Purchase Agreement") to be dated as of October 1, 2002 between TMCC and the
Seller. Pursuant to the Sale and Servicing Agreement, the Seller will sell the
Receivables to the Trust and TMCC will service the Receivables on behalf of the
Trust. In addition, pursuant to the Sale and Servicing Agreement, TMCC will
agree to perform certain administrative tasks on behalf of the Trust imposed on
the Trust under the Indenture. The Notes will be issued pursuant to the
Indenture to be dated as of October 1, 2002 (the "Indenture"), between the Trust
and The Bank of New York (the "Indenture Trustee"). TMCC has caused the Seller
to form the Trust pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement") dated as of October 1, 2002, between the Seller, as depositor
and U.S. Bank Trust National Association as owner trustee (the "Owner Trustee").
TMCC will be obligated to make certain advances to the Trust under the Liquidity
Note pursuant to the TMCC Revolving Liquidity Note Agreement (the "Revolving
Liquidity Note Agreement") dated as of October 31, 2002 between TMCC and the
Trust. TMCC, as administrator (in such capacity, the "Administrator") will
perform certain administrative tasks on behalf of the Trust, the Owner Trustee
and the Indenture Trustee imposed on them under the Basic Documents (as defined
below) pursuant to an Administration Agreement (the "Administration Agreement")
dated as of October 1, 2002 among the Trust, the Indenture Trustee, the Owner
Trustee and the Administrator. The Indenture Trustee, as securities
administrator (in such capacity, the "Securities Administrator"), will maintain
the Reserve Account pursuant to a Securities Account Control Agreement dated as
of October 1, 2002 among the Seller, the Indenture Trustee and the Securities
Administrator. The Trust will enter into a swap agreement relating to interest
payments on the Class A-2 and the Class A-4 Notes in the form of an ISDA master
agreement and schedule thereto and confirmation(s) relating thereto each dated
October 31, 2002 (together the "Swap Agreement") with TMCC, as swap
counterparty. The Trust will assign and pledge its rights but none of its
obligations under the Swap Agreement to the Trustee under the Indenture and the
Assignment of the Swap Agreement (the "Assignment of Swap Agreement"), to be
dated October 31, 2002, among the Trust, the Trustee and TMCC. As used herein,
the term "Basic Documents" refers to the Sale and Servicing Agreement, the Trust
Agreement, the Indenture, the Receivables Purchase Agreement, the Revolving
Liquidity Note Agreement, the Administration Agreement, the Securities Account
Control Agreement, the Swap Agreement and the Assignment of Swap Agreement.
This Underwriting Agreement shall hereinafter be referred to as "this
Agreement". Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Sale and Servicing Agreement.
Section 2. Representations and Warranties of the Seller and TMCC.
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(a) Each of the Seller and TMCC, jointly and severally, represents and
warrants to, and agrees with, each of the Underwriters that:
(i) Registration statement on Form S-3 (No. 333-74872), including a
form of prospectus supplement, relating to the Offered Notes and a form of
Base Prospectus
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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 the
registration statement 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 the registration statement (the "initial registration
statement") has been declared effective, either (i) any additional
registration statement (the "additional registration statement") relating
to the Offered Notes has been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and declared effective upon filing
pursuant to Rule 462(b) and the Offered Notes 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 Offered Notes will have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Seller does not propose to amend the initial
registration statement, any such additional registration statement or any
post-effective amendment to either such registration statement filed with
the Commission prior to the execution and delivery of this Agreement, then
the most recent amendment (if any) to 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, were
declared effective by the Commission or have 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 such initial registration
statements 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 such initial registration
statement as of its respective Effective Time pursuant to Rule 430A(b)
under the Act ("Rule 430A(b)"), is
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hereinafter referred to as the "Initial Registration Statement". The
additional registration statement, as amended at its Effective Time,
including (A) the contents of such Initial Registration Statement
incorporated by reference therein and (B) all information 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 Offered Notes
(the "Prospectus Supplement") and the form of prospectus (the "Base
Prospectus") relating to the Registered Securities (including the Offered
Notes), as first filed with the Commission in connection with the offering
and sale of the Offered Notes pursuant to and in accordance with Rule
424(b) under the Act ("Rule 424(b)") or, if no such filing is required, as
included in a Registration Statement, including all material incorporated
by reference in such prospectus, is hereinafter referred to as the
"Prospectus". Any reference herein to "Registration Statement" or
"Prospectus" shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended, (the
"Exchange Act") on or before the Effective Date of the Registration
Statement or the issue date of the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date
of the Prospectus, as the case may be, deemed to be incorporated therein by
reference; any reference in this Agreement to documents, financial
statements and schedules and other information which is "contained",
"included", "stated", "described" or "referred to" in the Registration
Statement or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such documents, financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may
be.
(ii) (A) On the Effective Date of any Registration Statement whose
Effective Time is prior to the execution and delivery of this Agreement,
each such Registration Statement conformed, (B) on the date of this
Agreement each such Registration Statement conforms and (C) on any related
Effective Date subsequent to the date of this Agreement, each such
Registration Statement will conform, in all material respects, with the
requirements of the Act and the rules and regulations of the Commission
promulgated under the Act (the "Rules and Regulations"), and at such times
did not and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. At the time of the filing of
the Prospectus pursuant to Rule 424(b) or, if no such filing is required,
at the Effective Date of the Additional Registration Statement that
includes the Prospectus, on the date of this Agreement and at the Closing
Date (as such term is defined in Section 3 hereof), the Prospectus will
conform in all material respects to the requirements of the Act and the
Rules and Regulations, and does not include, or will not include, any
untrue statement of a material fact nor does the Prospectus omit, nor will
it omit, any material fact, necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The two immediately
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preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon and in conformity with
the Underwriters Information (as defined in Section 7(a)) or to that part
of the Registration Statement which shall constitute a Statement of
Qualification under the Trust Indenture Act of 1939, as amended (the "1939
Act") on Form T-1 (the "Form T-1") of any Indenture Trustee. If the
Effective Time of the Initial Registration Statement is subsequent to the
date of this Agreement, no Additional Registration Statement has been or
will be filed.
(iii) The consummation of the transactions contemplated by this
Agreement and the Basic Documents, and the fulfillment of the terms
thereof, will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation
of any lien, charge, or encumbrance upon any of the property or assets of
the Seller or TMCC pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Seller or TMCC is a debtor or
guarantor.
(iv) No consent, approval, or order of, or filing with, any court or
governmental agency or body is required to be obtained or made by the
Seller or TMCC for the consummation of the transactions in the manner
contemplated by this Agreement except such as have been obtained and made
under the Act or the Rules and Regulations, such as may be required under
state securities laws and the filing of any financing statements required
to perfect the transfer of the Receivables.
(v) Neither the Seller nor TMCC is in violation of its charter or
by-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or instrument
to which it is a party or by which it or its properties are bound which
could have a material adverse effect on the transactions contemplated
herein or in the Basic Documents. The execution, delivery and performance
of this Agreement and the Basic Documents and the issuance of the Notes and
sale of the Offered Notes and compliance with the terms and provisions of
the Notes 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 the charter or by-laws of the Seller or TMCC, and
each of the Seller and TMCC has full corporate power and authority to enter
into this Agreement and the Basic Documents and to consummate the
transactions contemplated hereby and thereby.
(vi) This Agreement and each of the Basic Documents to which it is a
party has been duly authorized, executed and delivered by the Seller and
TMCC.
(vii) The Seller has caused to be filed with the Commission on October
25, 2002 the Current Report on Form 8-K with respect to the Term Sheet
dated October 23, 2002 relating to the Offered Notes (the "Term Sheet").
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(viii) The Offered Notes are "asset backed securities" within the
meaning of, and satisfy the requirements for use of, Form S-3 under the
Act.
(ix) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(x) Neither TMCC nor the Seller has entered into, nor will TMCC or the
Seller enter into, any contractual arrangement with respect to the
distribution of the Offered Notes except for this Underwriting Agreement.
(xi) The Trust is not an "investment company" and is not required to
be registered as an "investment company," as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(b) As of the Closing Date, the representations and warranties of the
Seller and of TMCC in each of the Basic Documents to which it is a party will be
true and correct in accordance with the terms of such Basic Document; provided,
however, that with respect to representations made with respect to any
Receivable, the sole remedy for any breach thereof is, as provided in the
related agreement, the repurchase by either TMCC or the Seller, as the case may
be, of such Receivable.
Section 3. Purchase, Sale and Delivery of the Offered Notes. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Seller agrees to sell to the
several Underwriters, and (i) the Class A-2 Underwriters agree, severally and
not jointly, to purchase from the Seller, the respective principal amounts of
Class A-2 Notes set forth opposite the names of the Class A-2 Underwriters in
Schedule I-A-2 hereto, (ii) the Class A-3 Underwriters agree, severally and not
jointly, to purchase from the Seller, the respective principal amounts of Class
A-3 Notes set forth opposite the names of the Class A-3 Underwriters in Schedule
I-A-3 hereto and (iii) the Class A-4 Underwriters agree, severally and not
jointly, to purchase from the Seller, the respective principal amounts of Class
A-4 Notes set forth opposite the names of the Class A-4 Underwriters in Schedule
I-A-4 hereto. The Offered Notes are to be purchased at a purchase price equal to
(i) in the case of the Class A-2 Notes, 99.875000% of the aggregate principal
amount thereof, (ii) in the case of the Class A-3 Notes, 99.818664% of the
aggregate principal amount thereof and (iii) in the case of the Class A-4 Notes,
99.750000% of the aggregate principal amount thereof.
The Offered Notes will initially be represented by three notes respectively
representing $320,000,000, $498,000,000 and $207,000,000 aggregate principal
amount of Offered Notes registered in the name of Cede & Co., the nominee of The
Depository Trust Company, New York, New York ("DTC") (the "DTC Notes"). The
interests of beneficial owners of the DTC Notes will be represented by book
entries on the records of DTC and participating members thereof. Definitive
notes evidencing the DTC Notes will be available only under the limited
circumstances specified in the Basic Documents.
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The Seller will deliver the DTC Notes to the Representatives for the
respective securities accounts of the Underwriters at the office of O'Melveny &
▇▇▇▇▇ LLP, against payment to the Seller of the purchase price for the Offered
Notes by wire transfer in immediately available funds, at 10:00 a.m., New York
time, on October 31, 2002, 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 interests of
beneficial owners of the Offered Notes will be represented by book entries on
the records of DTC and participating members thereof. The certificates
evidencing the DTC Notes will be made available for checking and packaging at
the office of U.S. Bank Trust National Association in The City of New York at
least 24 hours prior to the Closing Date.
Section 4. Offering by the Underwriters. It is understood that the several
Underwriters propose to offer the Offered Notes for sale to the public as set
forth in the Prospectus.
Section 5. Certain Agreements of the Seller and TMCC. Each of the Seller
and TMCC as the case may be, jointly and severally, covenants and agrees with
the several Underwriters that:
(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). 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 Offered Notes under the
Act but the Effective Time thereof has not occurred as of such execution
and delivery, the Seller will file the Additional Registration Statement or
a post-effective amendment thereto, as the case may be, with the Commission
pursuant to and in accordance with Rule 424(b) on or prior to 10:00 p.m.,
New York time, on the date of this Agreement or, if earlier, on or prior to
the time the Prospectus is printed and distributed to any Underwriter, or
will make such filing at such later date as shall have been consented to by
the Underwriter.
(b) The Seller will advise the Representatives promptly of any
proposal to amend or supplement the Initial Registration Statement or any
Additional Registration Statement as filed or the related prospectus or any
Registration Statement or the Prospectus and will not effect any such
amendment or supplement without the consent of the Representatives; and the
Seller will also advise the Representatives promptly of the effectiveness
of each Registration Statement (if the related Effective Time is subsequent
to the execution and delivery of this Agreement) and of any amendment or
supplement of any Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of
any Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to
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state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement the
Prospectus to comply with the Act, the Seller will promptly notify the
Representatives and will promptly prepare and file, or cause to be prepared
and filed, with the Commission an amendment or supplement which will
correct such statement, or omission, or an amendment or supplement which
will effect such compliance. Neither the Representatives consent to, nor
the delivery by the Representatives of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Seller will cause the Owner Trustee to make
generally available to the Noteholders an earnings statement with respect
to the Trust covering a period of at least 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 the date hereof, 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 or prior to the
business day preceding the Closing Date. All other documents shall be
furnished as soon as available and in such quantities as the
Representatives reasonably request. The Seller will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Seller will arrange for the qualification of the Offered Notes
for sale under the securities laws of such jurisdictions in the United
States as the Representatives may reasonably designate and will continue
such qualifications in effect so long as required for the distribution of
the Offered Notes, provided that the Seller shall not be obligated to
qualify to do business nor become subject to service of process generally,
but only to the extent required for such qualification, in any jurisdiction
in which it is not currently so qualified.
(g) So long as any of the Offered Notes are outstanding, the Seller or
TMCC, as the case may be, will deliver or cause to be delivered to the
Representatives (i) copies of each report regarding the Offered Notes
mailed to Noteholders pursuant to the Basic Documents, (ii) the annual
statement as to compliance and the annual statement of a firm of
independent public accountants furnished to the Indenture Trustee pursuant
to the Basic Documents (as amended), as soon as such statements are
furnished to the Indenture Trustee, (iii) copies of all documents required
to be filed with the Commission pursuant to the Exchange Act, or any order
of the Commission thereunder and (iv) such other
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information concerning the Seller, TMCC (relating to the Receivables, the
servicing thereof or the ability of TMCC to act as Servicer), the Offered
Notes or the Trust as the Representatives may reasonably request from time
to time.
(h) On or before the Closing Date, the Seller and TMCC shall cause the
computer records of the Seller and TMCC relating to the Receivables to show
the absolute ownership by the Owner Trustee on behalf of the Trust of the
Receivables, and from and after the Closing Date, none of the Seller or
TMCC shall take any action inconsistent with the ownership by the Owner
Trustee on behalf of the Trust of such Receivables, other than as permitted
by the Sale and Servicing Agreement or as required by law.
(i) The Seller and TMCC will pay all expenses incident to the
performance of their respective obligations under this Agreement, including
without limitation, (i) expenses incident to the printing, reproduction and
distribution of the Registration Statement as originally filed and each
amendment thereto and the Prospectus (including any amendments and
supplements thereto), (ii) the fees and disbursements of the Indenture
Trustee and the Owner Trustee and their counsel, (iii) the fees and
disbursements of counsel to the Seller and TMCC and the independent public
accountants of the Seller, (iv) the fees charged by ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's") and Standard & Poor's Ratings Services, a
division of the McGraw Hill Companies ("Standard & Poor's", and together
with Moody's, the "Rating Agencies") in connection with the rating of the
Notes, (v) the fees of DTC in connection with the book-entry registration
of the DTC Notes, (vi) the preparation, issuance and delivery of the
Offered Notes and (vii) expenses incurred in distributing the Prospectus
(including any amendments and supplements thereto) to the Underwriters, and
will reimburse the Underwriters for any expenses (including reasonable fees
and disbursements of counsel) incurred by the Underwriters in connection
with the qualification of the Offered Notes for sale under the securities
laws of such jurisdictions in the United States as the Representatives may
designate pursuant to Section 5(f) hereof and in connection with the
preparation of any blue sky or legal investment survey, if any is required.
(j) For a period of 14 days from the date hereof, neither the Seller,
TMCC nor any of their respective affiliates will, without the prior written
consent of the Representatives, directly or indirectly, offer, sell or
contract to sell or announce the offering of, in a public or private
transaction, any other collateralized securities similar to the Offered
Notes.
(k) So long as any Offered Notes are outstanding, the Seller and TMCC
will cause to be delivered to the Representatives a reliance letter
relating to each Opinion of Counsel delivered to any Rating Agency by
counsel to the Seller or counsel to TMCC pursuant to the Basic Documents.
(l) To the extent if any, that the rating at the Closing Date provided
with respect to the Offered Notes by any Rating Agency is conditional upon
the furnishing of documents or the taking of any other actions by the
Seller or TMCC, the Seller or TMCC, as the case may be, shall furnish such
documents and take any such other actions as may
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be required. A copy of any such document shall be sent to the
Representatives at the time it is sent to either Rating Agency.
Section 6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Offered
Notes will be subject to the accuracy of the respective representations and
warranties on the part of the Seller and TMCC herein, to the accuracy of the
statements of the Seller and TMCC made in any officers' certificates pursuant to
the provisions hereof, to the performance by the Seller and TMCC of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) On (i) the date of this Agreement, the Representatives and the
Seller shall have received a letter, dated the date of delivery thereof
(which, if the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, shall be on or prior
to the date of this Agreement or, if such Effective Time is subsequent to
the execution and delivery of this Agreement, shall be prior to the filing
of the amendment or post-effective amendment to the Registration Statement
to be filed shortly prior to such Effective Time), of
PriceWaterhouseCoopers LLP confirming that they are independent public
accountants with respect to the Seller and TMCC within the meaning of the
Act and the Rules and Regulations and with respect to certain information
contained in the Registration Statements, the Term Sheet and the Prospectus
and substantially in the form of the draft to which the Representatives
previously have agreed and otherwise in form and in substance satisfactory
to the Representatives and counsel for the Underwriters and (ii) the
Closing Date, the Representatives and the Seller shall have received (x) a
letter, dated as of the Closing Date, from PriceWaterhouseCoopers LLP,
updating the letter referred to in clause (i) above, in form and substance
satisfactory to the Representatives and counsel for the Representatives and
(y) a letter, dated as of the Closing Date, from PriceWaterhouseCoopers LLP
relating to certain agreed-upon procedures regarding data integrity in form
and substance satisfactory to the Representatives and counsel for the
Representatives (which letter may be included as part of the letter
referred to in clause (x)). As used in this subsection, (i) "Registration
Statements" shall mean (A) the Initial Registration Statement as proposed
to be amended by the amendment or post-effective amendment to be filed
shortly prior to its Effective Time, if the Effective Time of the Initial
Registration Statement is subsequent to the date of this Agreement, or (B)
the Initial Registration Statement and the Additional Registration
Statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time,
if the Effective Time is prior to the execution and delivery of this
Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, and (ii) "Prospectus" shall
mean the prospectus, with respect to the Offered Notes, together with any
supplement thereto.
(b) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 p.m., New York time, on the date
of this Agreement or such later date as shall have been consented to by the
Representatives. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and
-10-
Regulations and Section 5(a) hereof. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the execution
and delivery of this Agreement, such Effective Time shall have occurred not
later than 10:00 p.m., New York time, on the date of this Agreement or, if
earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by the Underwriter. Prior to the Closing Date, no stop order
suspending the effectiveness of any Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Seller or the Representatives, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any material adverse change in the condition,
financial or otherwise, or in the business affairs or business prospects of
the Seller, TMCC or the Trust which, in the reasonable judgment of the
Representatives (after consultation with the Underwriters), materially
impairs the investment quality of the Offered Notes, or makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Offered Notes; (ii) any downgrading in the rating of any
debt securities of TMCC or any of its direct or indirect subsidiaries by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any such
debt securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange or setting of minimum prices for
trading on such exchange; (iv) any suspension of trading of any securities
of TMCC on any exchange or in the over-the-counter market, (v) any banking
moratorium declared by federal, California or New York authorities; or (vi)
any outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by the United States Congress or any
other substantial national or international calamity or emergency if, in
the reasonable judgment of the Representatives (after consultation with the
Underwriters), the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Offered Notes.
(d) The Representatives shall have received:
(1) The favorable opinion, dated the Closing Date, of O'Melveny &
▇▇▇▇▇ LLP, special counsel for the Seller and TMCC, in form and scope
satisfactory to the Representatives, to the effect that:
(i) Each Basic Document has been duly authorized by all necessary
(i) corporate action on the part of TMCC and (ii) action under the
Delaware Limited Liability Companies Act and the Limited Liability
Company Agreement on the part of the Seller and has been executed and
delivered by each of the Seller and TMCC.
(ii) Assuming the due authorization, execution and delivery
thereof by the other parties thereto, each of the Basic Documents to
which the Seller or
-11-
TMCC is a party constitutes a legally valid and binding obligation of
each of the Seller and TMCC, as applicable, enforceable in accordance
with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect, relating to or affecting creditors' rights
generally and by the application of general principles of equity,
including without limitation concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of
specific performance, injunctive relief or any other equitable remedy
(regardless of whether enforcement is considered in a proceeding at
law or in equity).
(iii) Assuming the Notes have been duly and validly authorized
and, when executed and authenticated by the Owner Trustee as specified
in the Indenture and Trust Agreement and delivered against payment of
the consideration specified in this Agreement, the Sale and Servicing
Agreement or the Revolving Liquidity Note Agreement, the Notes will be
legally valid and binding obligations of the Trust, entitled to the
benefits of the Indenture and the Sale and Servicing Agreement, and
enforceable in accordance with their terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect, relating to or affecting creditors' rights
generally and by the application of general principles of equity,
including without limitation concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of
specific performance, injunctive relief or any other equitable remedy
(regardless of whether enforcement is considered in a proceeding at
law or in equity).
(iv) Assuming the due authorization, execution and delivery
thereof by the Owner Trustee and the other parties thereto (other than
TMCC or TAFR LLC), as applicable, each of the Sale and Servicing
Agreement, the Interest Rate Swap Agreement, the Assignment Agreement,
the Revolving Liquidity Note Agreement, the Indenture and the
Administration Agreement constitutes a valid and binding obligation of
the Trust enforceable against the Trust in accordance with its
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect,
relating to or affecting creditors' rights generally and by the
application of general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance,
injunctive relief or any other equitable remedy (regardless of whether
enforcement is considered in a proceeding at law or in equity).
(v) Neither the Seller nor the Trust is required to be registered
under the Investment Company Act.
(vi) With respect to Financed Vehicles in the State of
California, no filing or other action other than (A) the filing of a
UCC financing statement naming TMCC as transferor and the Seller as
the transferee, and (B) the filing of a UCC financing statement naming
the Seller as the transferor and the Owner Trustee as transferee,
which filings shall be completed on the closing date, is
-12-
necessary to perfect the transfer and assignment of TMCC's security
interest in such Financed Vehicles to the Seller, and the Seller's
security interest in such Financed Vehicles to the Owner Trustee,
respectively, and as a result of such transfer and assignment and
filing of such financing statements, the Indenture Trustee has a first
perfected security interest in such Financed Vehicles, except that so
long as TMCC is named as the legal owner and lien holder on a
certificate of title, TMCC has the ability to release the security
interest in the Financed Vehicle or to assign it to another party.
(vii) The Trust will not be classified as an association taxable
as a corporation or as a publicly traded partnership for federal or
California income and franchise tax purposes and for federal income
tax purposes the Offered Notes will be characterized as debt.
(viii) The statements in the Prospectus Supplement under "Summary
of Terms--Tax Status" and "--ERISA Considerations", and "ERISA
Considerations", and in the Base Prospectus under the "Summary of
Terms--Tax Status" and "--ERISA Considerations", "Certain Federal
Income Tax Consequences", "Certain Legal Aspects of the Receivables",
and "ERISA Considerations", to the extent that they constitute matters
of law or legal conclusions relating to the federal laws of the United
States or the laws of the State of California with respect thereto,
have been reviewed by such counsel and are correct in all material
respects.
(ix) This Agreement has been duly authorized by all necessary (i)
corporate action on the part of TMCC and (ii) action under the
Delaware Limited Liability Companies Act and the Limited Liability
Company Agreement on the part of the Seller and has been executed and
delivered by each of the Seller and TMCC.
(x) No order, consent, permit or approval of any California, New
York or federal governmental authority that such counsel has, in the
exercise of customary professional diligence, recognized as applicable
to TMCC or the Seller, or to the transactions of the type contemplated
by this Agreement or any Basic Document, including the issuance of the
Notes, is required on the part of TMCC or the Seller for the execution
and delivery of, and the performance of its obligations under this
Agreement and any Basic Document, except for such as have been
obtained or made and are in full force and effect as of the Closing
Date; provided that such counsel need express no opinion with respect
to any orders, consents, permits, approvals, filings or licenses
related to the authority to sell motor vehicles, originate retail
installment sales contracts or service retail installment sales
contracts or as may be required by any regional or local governmental
authority or under any foreign or state securities laws.
(xi) To such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened, to which the
Seller or TMCC is a party or of which any property of the Seller or
TMCC is the subject required to be disclosed
-13-
in the Registration Statements, other than those disclosed therein,
(A) asserting the invalidity of this Agreement, any Basic Document or
the Notes, (B) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this Agreement
or the Basic Documents, (C) that would, if determined adversely to
TMCC or the Seller, materially and adversely affect the performance by
the Seller or TMCC of its respective obligations under, or the
validity or enforceability of, this Agreement, either Basic Document
or the Notes or (D) seeking adversely to affect the federal income tax
attributes of the Notes as described in the Base Prospectus under the
heading "Certain Federal Income Tax Consequences" or the California
income tax attributes of the Notes.
(xii) At the time of execution and delivery of (A) the
Receivables Purchase Agreement, TMCC had the corporate power and
corporate authority to transfer the Receivables and such other
property being transferred to the Seller pursuant to the Receivables
Purchase Agreement, and (B) the Sale and Servicing Agreement, the
Seller had the corporate power and corporate authority to transfer the
Receivables and such other property being transferred to the Owner
Trustee on behalf of the Trust pursuant to the Sale and Servicing
Agreement and to cause the transfer of the Offered Notes to the
Underwriters.
(xiii) The Notes and the Basic Documents each conform in all
material respects with the respective descriptions thereof contained
in the Registration Statements and the Prospectus.
(xiv) Neither the Trust Agreement nor the Sale and Servicing
Agreement need to be qualified under the 1939 Act.
(xv) The Receivables constitute "tangible chattel paper" as such
term is defined in the California Uniform Commercial Code.
(xvi) The Registration Statements have been declared effective
under the Act, and, to such counsel's knowledge upon due inquiry, no
stop order suspending the effectiveness of the Registration Statements
has been issued or proceedings therefor initiated or threatened by the
Commission, and the Registration Statements and the Prospectus, and
each amendment or supplement thereto, as of its respective effective
or issue date, appeared on its face to comply in all material respects
with the applicable requirements of the Act and the related rules and
regulations in effect at the date of filing, except that such counsel
need not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statements or
the Prospectus except as contemplated by paragraph (viii) of this
Section to the extent set forth therein; such counsel need not opine
as to any financial statements or other financial, numerical or
statistical data contained or incorporated by reference therein; and
such counsel need not opine as to any Indenture Trustee's Statement of
Eligibility on Form T-1.
(xvii) The form of the Indenture has been qualified under the
1939 Act.
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(xviii) The Seller has duly authorized and executed the written
order to the Owner Trustee to execute and deliver the issuer order to
the Indenture Trustee to authenticate the Notes.
In addition, such counsel shall state that such counsel has participated in
conferences with the officers and other representatives of TMCC and the Seller,
representatives of the independent public accountants therefor and the
Underwriters, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such counsel is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained therein and has not made
any independent check or verification thereof, during the course of such
participation, such counsel does not believe that any Registration Statement, at
the related Effective Time, or any such amendment or supplement, as of its
effective date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, at the date of the
Prospectus Supplement (or any such amendment or supplement, as of its respective
date) or at the Closing Date included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; it being understood that such counsel need express no
opinion or belief as to any financial statements or other financial, numerical
or statistical data contained or incorporated by reference in any Registration
Statement or the Prospectus or any Indenture Trustee's Statement of
Qualification on Form T-1.
Such counsel's opinions as to enforceability shall be subject to the
unenforceability under certain circumstances: (1) of waivers of rights granted
by law where the waivers are against public policy or prohibited by law; (2) of
waivers of vaguely or broadly stated rights or future rights; (3) of any
indemnification provisions; (4) of any provisions that rights or remedies are
not exclusive, that every right or remedy is cumulative and may be exercised in
addition to or with any other right or remedy or that the election of some
particular remedy or remedies does not preclude recourse to one or more other
remedies; (5) of choice of law provisions; and (6) of severability provisions,
provided that such enforceability will not, subject to the other exceptions,
qualifications and limitations contained in such opinion, render the relevant
agreements invalid as a whole or substantially interfere with the substantial
realization of the principal benefits that such agreements purport to provide
(except for the economic consequences of procedural or other delay).
(2) The favorable opinion, dated the Closing Date, of ▇▇▇▇ ▇. ▇▇▇▇▇,
Esq., General Counsel of TMCC and counsel to the Seller, in form and scope
satisfactory to the Representatives and their counsel, to the effect that:
(i) Each of the Seller and TMCC is duly organized, existing and
in good standing under the laws of their respective states of
organization.
(ii) Each of the Seller and TMCC is duly incorporated or
qualified as a foreign corporation or limited liability company, as
applicable 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
-15-
requires such qualification and in which the failure to so qualify and
be in good standing would materially adversely affect their respective
businesses or financial condition.
(iii) To such counsel's knowledge (A) there are no legal or
governmental proceedings pending or threatened against TMCC or in
connection with the origination and servicing of the Receivables by
TMCC which are required to be disclosed in the Registration
Statements, other than those disclosed therein, (B) there are no legal
or governmental proceedings to which TMCC is a party or to which any
of its property is subject which are not described in TMCC's Annual
Report on Form 10-K for the year ended March 31, 2002, or its
quarterly report for the quarter ended June 30, 2002, which are
required to be disclosed therein other than those disclosed therein
and (C) there are no pending legal or governmental proceedings to
which the Seller is a party or to which any of its property is
subject.
(iv) To such counsel's knowledge (A) no default exists in the due
performance or observance by TMCC of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a party
or by which it may be bound, which default would have a material
adverse effect on the financial condition, earnings, business affairs,
business prospects, properties or results of operations of TMCC and
its subsidiaries considered as one enterprise, and (B) other than this
Agreement, and the Basic Documents and the corresponding agreements in
connection with the Toyota Auto Receivables 2000-A Owner Trust, Toyota
Auto Receivables 2000-B Owner Trust, Toyota Auto Receivables 2001-A
Owner Trust, Toyota Auto Receivables 2001-B Owner Trust, Toyota Auto
Receivables 2001-C Owner Trust, Toyota Auto Receivables 2002-A Owner
Trust, Toyota Auto Receivables 2002-B Owner Trust and the subordinated
notes payable to TMCC, the Seller is not a party to any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument.
(v) The transfer of the Receivables and the other property of the
Trust transferred by TMCC to the Seller pursuant to the Receivables
Purchase Agreement, the execution, delivery and performance of the
Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (A) conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any Lien upon any property or assets of TMCC
or any of its subsidiaries pursuant to, any material contract,
indenture, 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.
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(vi) The transfer of the Receivables to the Owner Trustee acting
on behalf of the Trust, the assignment of the security interest of the
Seller in the Financed Vehicles, the issuance of the Notes, the sale
of the Offered Notes, the execution and delivery of this Agreement,
the Basic Documents and the Notes, and the consummation of the
transactions contemplated herein and therein will not (A) conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any Lien upon any property or assets of the
Seller pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Seller is a party or by
which it may be bound, or to which any of the property or assets of
the Seller is subject, (B) result in any violation of the provisions
of the charter or bylaws of the Seller or (C) to such counsel's
knowledge, result in any violation of any applicable law,
administrative regulation or administrative or court decree.
(vii) Each of the Seller and TMCC has obtained all necessary
licenses and approvals under the federal law of the United States and
the laws of the State of California or Delaware, as applicable, to
conduct their respective businesses in which the failure to obtain
such licenses and approvals would render any Receivable or any other
material part of the corpus of the Trust unenforceable or would
materially and adversely affect the ability of either the Seller or
TMCC to perform any of their respective obligations under, or the
enforceability of, any of the Basic Documents.
(viii) Such counsel is familiar with the standard operating
procedures of TMCC relating to the acquisition by TMCC of a first
perfected security interest in the automobiles and/or light duty
trucks financed by the retail installment sale contracts purchased by
TMCC in the ordinary course of its business and relating to the sale
to TMCC of such contracts and such security interests in the
automobiles or light duty trucks financed thereby in the ordinary
course of its business. Assuming that such standard procedures are
followed with respect to the perfection of security interests in the
Financed Vehicles (and such counsel has no reason to believe that TMCC
has not or will not continue to follow its standard procedures in
connection with the perfection of first perfected security interests
in the Financed Vehicles), TMCC has acquired a first perfected
security interest in the Financed Vehicles.
(3) The favorable opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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.
-17-
(4) Reliance letters relating to each opinion rendered to either
Rating Agency by any counsel for the Seller, TMCC, the Trust or any other
party to any of the Basic Documents.
(5) The favorable opinion, dated the Closing Date, of ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Indenture Trustee, in form and scope
satisfactory to the Representatives and counsel for the Underwriters, to
the effect that:
(i) The Indenture Trustee has been duly incorporated and is
validly existing as a national banking association, in good standing
under the laws of United States with full power and authority
(corporate and other) to own its properties and conduct its business,
as presently conducted by it, and to enter into and perform its
obligations as Indenture Trustee under each Basic Document to which
the Indenture Trustee is a party.
(ii) Each Basic Document to which the Indenture Trustee is a
party has been duly authorized, executed and delivered by the
Indenture Trustee and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, will constitute a
legal, valid and binding obligation of the Indenture Trustee
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting enforcement of
creditors rights generally and by general principals of equity
(regardless of whether such enforceability is considered in a
proceeding in equity and or at law).
(iii) Neither the execution nor delivery by the Indenture Trustee
of each Basic Document to which it is a party nor the consummation of
any of the transactions by the Indenture Trustee contemplated thereby
require the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to,
any governmental authority or agency under any existing federal or
state law governing the banking or trust powers of the Indenture
Trustee.
(iv) The execution and delivery of each Basic Document to which
the Indenture Trustee is a party and the performance by the Indenture
Trustee of its terms do not conflict with or result in a violation of
(A) any federal or state law or regulation governing the banking or
trust powers of the Indenture Trustee, (B) the Articles of Association
or By-Laws of the Indenture Trustee, or (C) to the best knowledge of
such counsel, any indenture, lease, or material agreement to which the
Indenture Trustee is a party or to which its assets are subject.
(v) Each of the Notes has been authenticated by the Indenture
Trustee in accordance with the terms of the Indenture.
(6) The favorable opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇, counsel to
the Owner Trustee, dated the Closing Date in form and scope satisfactory to
the Representatives and counsel for the Underwriters, to the effect that:
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(i) The Owner Trustee has been duly incorporated and is validly
existing as a national banking association, in good standing under the
laws of United States with full power and authority (corporate and
other) to own its properties and conduct its business, as presently
conducted by it, and to enter into and perform its obligations as
Owner Trustee under each Basic Document to which the Owner Trustee is
a party.
(ii) Each Basic Document to which the Owner Trustee is a party
has been duly authorized, executed and delivered by the Owner Trustee
and, assuming the due authorization, execution and delivery thereof by
the other parties thereto, will constitute a legal, valid and binding
obligation of the Owner Trustee enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting enforcement of creditors rights generally and by
general principals of equity (regardless of whether such
enforceability is considered in a proceeding in equity and or at law).
(iii) Neither the execution nor delivery by the Owner Trustee of
each Basic Document to which it is a party nor the consummation of any
of the transactions by the Owner Trustee contemplated thereby require
the consent or approval of, the giving of notice to, the registration
with or the taking of any other action with respect to, any
governmental authority or agency under any existing federal or state
law governing the banking or trust powers of the Owner Trustee.
(iv) The execution and delivery of each Basic Document to which
the Owner Trustee is a party and the performance by the Owner Trustee
of its terms do not conflict with or result in a violation of (A) any
federal or state law or regulation governing the banking or trust
powers of the Owner Trustee, (B) the Articles of Association or
By-Laws of the Owner Trustee, or (C) to the best knowledge of such
counsel, any indenture, lease, or material agreement to which the
Owner Trustee is a party or to which its assets are subject.
(v) Each of the Notes has been duly executed and delivered by the
Owner Trustee on behalf of the Trust.
(vi) Each of the Swap Agreement and the Assignment of the Swap
Agreement has been duly executed and delivered by the Owner Trustee on
behalf of the Trust.
(7) The favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the
Underwriters, dated the Closing Date, with respect to the validity of the
Notes and such other related matters as the Representatives shall request
and the Seller and TMCC shall have furnished or caused to be furnished to
such counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(8) The favorable opinion of O'Melveny & ▇▇▇▇▇ LLP, special counsel to
the Trust, dated the Closing Date, in form and scope satisfactory to the
Representatives and
-19-
counsel for the Underwriters, regarding the creation, attachment and
perfection of a first priority security interest in the Receivables, the
rights under the Swap Agreement, property held in the Reserve Account and
the rights to receive advances under the Liquidity Note in favor of the
Owner Trustee on behalf of the Noteholders. Such opinion may contain such
assumptions, qualifications and limitations as are customary in opinions of
this type and are reasonably acceptable to counsel to the Underwriters. In
rendering such opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than the federal law of the United
States of America and the laws of the State of New York and the State of
California. To the extent any portion of such opinion is governed by the
laws of the State of Delaware, such opinion will be given by ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇. To the extent any portion of such opinion is governed by
the laws of the State of New York or California, such opinion will be given
by O'Melveny & ▇▇▇▇▇ LLP.
(9) The favorable opinion of O'Melveny & ▇▇▇▇▇ LLP, dated the Closing
Date, in form and scope satisfactory to the Representatives and counsel to
the Underwriters with respect to (i) the consolidation of the assets and
liabilities of the Seller with those of TMCC under the doctrine of
substantive consolidation, (ii) the creation of (x) a "true sale" with
respect to the transfer of the Receivables from TMCC to the Seller and with
respect to the transfer of the Receivables from the Seller to the Trust or
(y) with respect to the transfer of the Receivables to the Trust, a valid
and binding security interest in the Receivables and (iii) such other
related matters as the Representatives shall reasonably require and the
Seller shall have furnished or caused to be furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them
to pass upon such matters. Such opinions shall be limited to the laws of
the State of New York and United States federal law.
(10) The favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger as special
Delaware counsel for the Trust, dated the Closing Date, in form and scope
satisfactory to the Representatives and counsel for the Representatives, to
the effect that:
(i) The Trust Agreement constitutes the valid and binding
obligation of the Owner Trustee and the Seller enforceable against the
Owner Trustee and the Seller in accordance with its terms subject to
(i) applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and similar laws relating to and
affecting the rights and remedies of creditors generally, and (ii)
principles of equity (regardless of whether considered and applied in
a proceeding in equity or at law).
(ii) The Certificate of Trust has been duly filed with the
Secretary of State. The Trust has been duly formed and is validly
existing as a statutory trust under the Delaware Statutory Trust Act.
The Trust has the power and authority under the Trust Agreement and
the Delaware Statutory Trust Act to execute and deliver the Indenture
and the Sale and Servicing Agreement, to issue the Notes and to pledge
the Trust Estate to the Indenture Trustee as security for the Notes.
-20-
(iii) The Indenture, the Sale and Servicing Agreement, the
Administration Agreement, the Note Depository Agreement, the Revolving
Liquidity Note Agreement, the Swap Agreement, the Assignment of Swap
Agreement and the Operating Agreement have been duly authorized by the
Trust.
(iv) To the extent that Article 9 of the Uniform Commercial Code
as in effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflicts of laws principles), upon the
filing of a financing statement on form UCC-1 naming the Trust as
debtor and the Indenture Trustee as secured party (the "Trust
Financing Statement") with the Secretary of State of the State of
Delaware (Uniform Commercial Code Section)(the "Division"), the
Indenture Trustee will have a perfected security interest in the
Trust's rights in that portion of the Collateral (as defined in the
Indenture) as described in the Trust Financing Statement that may be
perfected by the filing of a UCC financing statement with the Division
(the "Trust Filing Collateral") and the proceeds (as defined in
Section 9-102(a)(64) of the Delaware UCC) thereof.
(v) To the extent that Article 9 of the Delaware UCC is
applicable (without regard to conflicts of laws principles), upon the
filing of a financing statement on form UCC-1 naming the Seller as
debtor and the Trust as secured party (the "TAFR Financing Statement")
with the Division, the Trust will have a perfected security interest
in the Seller's rights in that portion of the Collateral (as defined
in the Sale and Servicing Agreement) described in the TAFR Financing
Statement that may be perfected by the filing of a UCC financing
statement with the Division (the "TAFR Filing Collateral") and the
proceeds (as defined in Section 9-102(a)(64) of the Delaware UCC)
thereof.
(vi) The results of a Uniform Commercial Code search (the "Trust
Search Report") sets forth the proper filing office and the proper
debtor necessary to identify those Persons who under the Delaware UCC
have on file financing statements against the Trust covering the Trust
Filing Collateral as of October 30, 2002. The Trust Search Report
identifies no secured party who has filed with the Division a
financing statement naming the Trust as debtor and describing the
Trust Filing Collateral prior to October 15, 2002.
(vii) The results of a Uniform Commercial Code search (the "TAFR
Search Report") sets forth the proper filing office and the proper
debtor necessary to identify those Persons who under the Delaware UCC
have on file financing statements against the Seller covering the TAFR
Filing Collateral as of October 30, 2002. The TAFR Search Report
identifies no secured party who has filed with the Division a
financing statement naming the Seller as debtor and describing the
TAFR Filing Collateral prior to October 15, 2002,
(viii) No re-filing or other action is necessary under the
Delaware UCC in order to maintain the perfection of such security
interest except for the filing of continuation statements at five year
intervals.
-21-
(ix) Under ss. 3805(b) of the Statutory Trust Act, no creditor of
any Certificateholder or Noteholder shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Trust except in accordance with the
terms of the Trust Agreement.
(x) Under ss. 3805(c) of the Statutory Trust Act, except to the
extent otherwise provided in the Trust Agreement, the Trust rather
than the Certificateholders or Noteholders is the owner of the
Receivables.
(xi) Under the Statutory Trust Act, the Trust is a separate legal
entity, and assuming that the Sale and Servicing Agreement conveys
good title to the Receivables to the Trust as a true sale and not as a
security arrangement, the Trust rather than the Certificateholders
will hold whatever title to the Trust property as may be conveyed to
it from time to time pursuant to the Sale and Servicing Agreement,
except to the extent that the Trust has taken action to dispose of or
otherwise transfer or encumber any part of the Trust property.
(xii) The execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Trust, the Indenture and the
Sale and Servicing Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any governmental
authority of the State of Delaware, except for the filing of the
Certificate of Trust with the Secretary of State.
(xiii) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Trust Agreement or, on behalf of the
Trust, the transactions contemplated in the Indenture and the Sale and
Servicing Agreement, nor the fulfillment of the terms thereof by the
Owner Trustee will conflict with or result in a breach or violation of
any law of the State of Delaware applicable to the Trust.
Such opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably acceptable to
counsel to the Representatives. In rendering such opinion, such counsel may
state that they express no opinion as to the laws of any jurisdiction other than
the federal law of the United States of America and the laws of the State of
Delaware.
(e) The Representatives shall have received a certificate, dated the
Closing Date, signed by the President or any Vice President and a principal
financial or accounting officer of (i) the Seller in which such officers
shall state that, to the best of their knowledge after reasonable
investigation, (A) the representations and warranties of the Seller in this
Agreement are true and correct, (B) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, (C) no stop order
suspending the effectiveness of any Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to the best of
their knowledge, are contemplated by the Commission, (D) the Additional
Registration Statement, if any, satisfying the requirements of Rule
462(b)(1) and Rule 462(b)(3) was filed in accordance with Rule 462(b)
(including payment of the
-22-
applicable filing fee in accordance with Rule 111(a) or Rule 111(b) under
the Act) prior to the time the Prospectus was printed or distributed to the
Underwriter and (E) subsequent to the date of this Agreement, there has
been no material adverse change in the condition, financial or otherwise,
or in the business affairs or business prospects of the Seller except as
set forth or contemplated in the Prospectus and (ii) TMCC in which such
officers shall state that, to the best of their knowledge after reasonable
investigation, (A) the representations and warranties of TMCC in this
Agreement are true and correct, (B) TMCC has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder and (C) subsequent to the date of this Agreement there has been
no material adverse change in the condition, financial or otherwise, or in
the business affairs or business prospects of TMCC which would materially
and adversely affect the performance by TMCC of its obligations under this
Agreement or any of the Basic Documents.
(f) On the Closing Date, the Class A-2, Class A-3 and Class A-4 Notes
shall be rated "Aaa" by ▇▇▇▇▇'▇ and "AAA" by Standard & Poor's.
(g) The Representatives shall have received a certificate, dated the
Closing Date, signed by an authorized officer or any Vice President of the
Indenture Trustee, in which such officer shall state that the information
contained in the Form T-1 for the Indenture Trustee is true and accurate as
of its filing with the Commission.
(h) The Representatives shall have received evidence satisfactory to
counsel for the Representatives that the Owner Trustee and Trust have
received all necessary licenses in the States of Pennsylvania and Maryland
to own the Receivables.
(i) On the Closing Date, the Representatives and counsel for the
Underwriters shall have been furnished with such documents and opinions as
they reasonably may require for the purpose of enabling them to pass upon
the issuance and sale of the Notes as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Seller and
TMCC in connection with the issuance and sale of the Notes as herein
contemplated shall be in form and substance satisfactory to the
Representatives and counsel for the Underwriters.
Section 7. Indemnification and Contribution.
--------------------------------
(a) The Seller and TMCC will, jointly and severally, indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several as incurred, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Term Sheet, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as
-23-
such expenses are incurred; provided, however, that neither the Seller nor TMCC
will be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Seller or TMCC by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information in the Prospectus
appearing in the first textual paragraph under the first table on page S-52, the
second table on page S-52 insofar as it describes the Selling Concessions and
the Reallowances, the three paragraphs after the second table that begin on page
S-52 and the first and second sentences of the fourth paragraph on page S-53 and
the eighth paragraph on page S-53 (the "Underwriters' Information"); provided
that neither TMCC nor the Seller shall be liable under this subsection (a) to
any Underwriter to the extent that such losses, claims, damages or liabilities
arose out of or are based upon an untrue statement or omission made in any Term
Sheet that is corrected in the Prospectus (or any amendment or supplement
thereto) that has been previously made available to such Underwriter if the
person asserting such loss, claim, damage or liability was not sent or given the
Prospectus (or any amendment or supplement thereto) on or prior to the
confirmation of the sale of the Offered Notes.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless each of the Seller and TMCC, against any losses, claims, damages or
liabilities, joint or several as incurred, to which the Seller or TMCC, may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Seller or TMCC by such
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by such
Underwriter consists of such Underwriter's Underwriters' Information and will
reimburse any legal or other expenses reasonably incurred by the Seller and TMCC
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to
-24-
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. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them or (iii) the
indemnifying party fails to appoint such counsel as provided in the previous
sentence under this Section. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to any
local counsel) for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent does not contain a statement as to or an
admission of fault, culpability, or a failure to act by or on behalf of any
indemnified party (unless such statement is agreed to by the indemnified party
in writing); provided, however, that in the event such settlement, compromise or
consent by the indemnifying party does not include an unconditional release of
each indemnified party from all liability arising out of any litigation,
investigation, proceeding or claim; the provisions of this Section with respect
to indemnification shall continue and survive.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Seller and TMCC
on the one hand and the Class A Underwriters, on the other hand, from the
offering of the Offered Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Seller and TMCC on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by the
Seller and TMCC on the one hand and the Class A Underwriters on the other hand
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Seller and TMCC bear to the
total underwriting discounts and commissions received by the Class A
Underwriters. The relative 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,
-25-
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 Offered Notes underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Seller and TMCC under this Section shall be in
addition to any liability that the Seller or TMCC may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability that the
respective Underwriters my otherwise have and shall extend, upon the same terms
and conditions, to each director of the Seller or TMCC, to each officer of the
Seller or TMCC who has signed any Registration Statement and to each person, if
any, who controls the Seller or TMCC within the meaning of the Act.
Section 8. Default of Underwriters. If any Class A Underwriter or
Underwriters default in their obligations to purchase Offered Notes hereunder
and (i) the aggregate principal amount of Class A-2 Notes (in the case of the
Class A-2 Underwriters) that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total principal amount of the
Class A-2 Notes, (ii) the aggregate principal amount of Class A-3 Notes (in the
case of the Class A-3 Underwriters) that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Class A-3 Notes and (iii) the aggregate principal amount
of Class A-4 Notes (in the case of the Class A-4 Underwriters) that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Class A-4 Notes, the Representatives
may make arrangements satisfactory to the Seller and TMCC for the purchase of
such Class A-2 Notes, Class A-3 Notes or Class A-4 Notes, as the case may be, by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Class A-2 Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Class A-2 Notes, the non-defaulting Class A-3 Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Class A-3 Notes and the non-defaulting Class A-4 Underwriters shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Class A-4 Notes, in each case that such defaulting Underwriters
agreed but failed to purchase. If any such default or defaults occur and such
default or defaults exceed 10% of the total principal amount of the Class A-2
Notes, the Class A-3 Notes or the Class A-4 Notes, as the case may be, and
arrangements satisfactory to the Seller and TMCC for the purchase of such
Offered Notes by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Seller or TMCC, except as provided in Section 9
hereof. As used in this Agreement, the term "Underwriter" includes any
-26-
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 Offered
Notes. If this Agreement is terminated pursuant to Section 8 hereof or if for
any reason the purchase of the Offered Notes by the Underwriters is not
consummated, the Seller and TMCC shall remain responsible for the expenses to be
paid or reimbursed by the Seller and TMCC pursuant to Section 5(i) hereof and
the respective obligations of the Seller, TMCC and the Underwriters pursuant to
Section 7 hereof shall remain in effect. If the purchase of the Offered Notes by
the Underwriters is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 8 hereof or the occurrence
of any event specified in clause (iii), (iv) or (v) of Section 6(c) hereof, the
Seller and TMCC will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by it in
connection with the offering of the Offered Notes.
Section 10. Notices. All communications hereunder will be in writing and,
if sent to the Representatives or the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representatives c/o Banc of America Securities
LLC, Bank of America Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇ and to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
1585 Broadway, New York, New York 10036, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇; if sent to
the Seller, will be mailed, delivered or telegraphed and confirmed to it at
Toyota Auto Finance Receivables LLC, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. Box 2958
Torrance, California 90509, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ - President; or if sent to
TMCC, will be mailed, delivered or telegraphed and confirmed to it at Toyota
Motor Credit Corporation, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. Box 2958, Torrance,
California 90509, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ - President and Chief Executive
Officer. 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 Representatives. The Representatives will act
for the several Underwriters in connection with the transactions described in
this Agreement, and any action taken by the Representatives under this Agreement
will be binding upon all the Underwriters.
Section 13. Representations and Warranties of Underwriters. With respect to
any offers or sales of the Offered Notes outside of the United States (and
solely with respect to any such
-27-
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 Offered Notes or possesses or distributes the Prospectus or any
other offering material and will obtain any consent, approval or permission
required by it for the purchase, offer or sale by it of Offered Notes under the
laws and regulations in force in any jurisdiction, to which it is subject or in
which it makes such purchases, offers or sales and neither the Seller or TMCC
shall have any responsibility therefor;
(b) No action has been or will be taken by such Underwriter that would
permit a public offering of the Offered Notes or possession, or distribution of
any offering material in relation to the Offered Notes in any jurisdiction where
action for that purpose is required unless the Seller or TMCC has agreed to such
actions and such actions have been taken;
(c) Each Underwriter represents and agrees that it will not offer, sell or
deliver any of the Offered Notes or distribute any such offering material in or
from any jurisdiction except under circumstances, which will result in
compliance with applicable laws and regulations and which will not impose any
obligation on the Seller or TMCC or the Underwriters; and
(d) Such Underwriter acknowledges that it is not authorized to give any
information or make any representations in relation to the Offered Notes other
than those contained or incorporated by reference in the Prospectus for the
Offered Notes and such additional information, if any, as the Seller or TMCC
shall, in writing, provide to and authorize such Underwriter so to use and
distribute to actual and potential purchasers of Offered Notes; and
(e) Each Underwriter represents and agrees that it has not offered or sold
and will not offer or sell, prior to the date six months after their date of
issuance, any Offered Notes 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 in 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 (as amended); and
(f) Each Underwriter has complied and will comply with all applicable
provisions of the Financial Services and Markets Act 2000 ("FSMA") with respect
to anything done by such Underwriter in relation to the Offered Notes in, from
or otherwise involving the United Kingdom; and
(g) Each Underwriter will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by it in connection with the issue or sale of
any securities in circumstances in which Section 21(1) of the FSMA does not
apply to the Seller.
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.
-28-
Section 15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
-29-
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 AUTO FINANCE RECEIVABLES LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive
Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted, as
of the date first above written:
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇. ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇. ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. Friend
-------------------------------
Name: ▇▇▇▇▇▇ ▇. Friend
Title: Managing Director
Acting on behalf of themselves and as
the Representatives of the several
Underwriters
-30-
Schedule I-A-2
Principal Amount of
Class A-2 Underwriter Class A-2 Notes
--------------------- ---------------
Banc of America Securities LLC......................... $112,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated...................... $112,000,000
Banc One Capital Markets, Inc.......................... $ 11,200,000
Barclays Capital Inc................................... $ 11,200,000
Credit Suisse First Boston Corporation................. $ 11,200,000
Deutsche Bank Securities Inc........................... $ 11,200,000
▇.▇. ▇▇▇▇▇▇ Securities Inc............................. $ 11,200,000
▇▇▇▇▇▇ Brothers Inc.................................... $ 11,200,000
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated............................ $ 11,200,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc............................... $ 11,200,000
Countrywide Securities Corporation..................... $ 3,200,000
Loop Capital Markets, LLC.............................. $ 3,200,000
--------------
Total................................ $320,000,000
============
-31-
Schedule I-A-3
Principal Amount of
Class A-3 Underwriter Class A-3 Notes
--------------------- ---------------
Banc of America Securities LLC................... $174,300,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated................ $174,300,000
Banc One Capital Markets, Inc.................... $ 17,430,000
Barclays Capital Inc............................. $ 17,430,000
Credit Suisse First Boston Corporation........... $ 17,430,000
Deutsche Bank Securities Inc..................... $ 17,430,000
▇.▇. ▇▇▇▇▇▇ Securities Inc....................... $ 17,430,000
▇▇▇▇▇▇ Brothers Inc.............................. $ 17,430,000
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated...................... $ 17,430,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc......................... $ 17,430,000
Countrywide Securities Corporation............... $ 4,980,000
Loop Capital Markets, LLC........................ $ 4,980,000
--------------
Total.......................... $498,000,000
============
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Schedule I-A-4
Principal Amount of
Class A-4 Underwriter Class A-4 Notes
--------------------- ---------------
Banc of America Securities LLC................ $ 72,450,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated............. $ 72,450,000
Banc One Capital Markets, Inc................. $ 7,245,000
Barclays Capital Inc.......................... $ 7,245,000
Credit Suisse First Boston Corporation........ $ 7,245,000
Deutsche Bank Securities Inc.................. $ 7,245,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.................... $ 7,245,000
▇▇▇▇▇▇ Brothers Inc........................... $ 7,245,000
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated................... $ 7,245,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc...................... $ 7,245,000
Countrywide Securities Corporation............ $ 2,070,000
Loop Capital Markets, LLC..................... $ 2,070,000
--------------
Total....................... $207,000,000
============
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