EXHIBIT 1.1
Execution Copy
TOYOTA AUTO RECEIVABLES 2002-B OWNER TRUST
$387,000,000 ASSET BACKED NOTES, CLASS A-2
$457,000,000 ASSET BACKED NOTES, CLASS A-3
$264,000,000 ASSET BACKED NOTES, CLASS A-4
UNDERWRITING AGREEMENT
May 15, 2002
Deutsche Bank Securities Inc.
31 West 52nd Street, 17th Floor
New York, New York 10019
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center
250 Vesey Street
New York, New York 10080
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") $387,000,000 aggregate principal amount of
2.79% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"), $457,000,000
aggregate principal amount of 3.76% Asset Backed Notes, Class A-3 (the "Class
A-3 Notes") and $264,000,000 aggregate principal amount of 4.39% 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-B Owner Trust (the "Trust"). Concurrently with the issuance and sale of the
Offered Notes as contemplated herein the Trust will issue (i) $444,000,000
aggregate principal amount of 1.91375% 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 May 23, 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 $48,001,788 as of the
closing date. Neither the Class A-1 Notes nor the Subordinated Seller's Interest
will be sold hereunder. Deutsche Bank Securities Inc. and Merrill Lynch, Pierce,
Fenner & Smith 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 April 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 May 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 May 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 May 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 May 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 May 23, 2002 between TMCC and the Trust.
As used herein, the term "Basic Documents" refers to the Sale and Servicing
Agreement, the Trust Agreement, the Indenture, the Receivables Purchase
Agreement and the Revolving Liquidity Note 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.
(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 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
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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 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
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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 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
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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
May 16, 2002 the Current Report on Form 8-K with respect to the Term
Sheet dated May 14, 2002 relating to the Offered Notes (the "Term
Sheet").
(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.
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(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, 99.871421% of the aggregate principal
amount thereof plus accrued interest at the Class A-2 Note Rate from (and
including) May 23, 2002, to (but excluding) the Closing Date, (ii) in the case
of the Class A-3 Notes, 99.824295% of the aggregate principal amount thereof
plus accrued interest at the Class A-3 Note Rate from (and including) May 23,
2002, to (but excluding) the Closing Date and (iii) in the case of the Class A-4
Notes, 99.742559% of the aggregate principal amount thereof plus accrued
interest at the Class A-4 Note Rate from (and including) May 23, 2002, to (but
excluding) the Closing Date.
The Offered Notes will initially be represented by three notes
respectively representing $387,000,000, $457,000,000 and $264,000,000 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.
The Seller will deliver the DTC Notes to the Representatives for the
respective securities accounts of the Underwriters at the office of O'Melveny &
Myers 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 May 23, 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
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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 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
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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 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
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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 Moody's 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 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
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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 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
-10-
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
& Myers 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 Owner Trustee and Indenture Trustee,
each of the Sale and Servicing Agreement, the Indenture and the
Receivables Purchase Agreement constitutes a legally valid and
binding obligation of each of the Seller and TMCC 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,
-11-
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, and entitled to the benefits
of the Indenture and the Sale and Servicing Agreement
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 Indenture Trustee,
each of the Sale and Servicing Agreement, the Revolving
Liquidity Note Agreement, the Indenture and the Administration
Agreement constitute 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 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
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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 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
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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.
(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.
-14-
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 Alan F.
Cohen, 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 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.
-15-
(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-KT for the year
ended March 31, 2001, or its quarterly report for the quarter
ended December 31, 2001 (as amended by Form 10-Q/A on April 16,
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 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.
(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
-16-
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 Sheppard,
Mullin, Richter & Hampton, special California counsel to the Seller and
TMCC, in form and scope satisfactory to the Representatives and their
counsel, to the effect that, assuming the due authorization, execution
and delivery thereof by the parties thereto, each of the Receivables in
the form attached to such opinion constitutes the valid, binding and
enforceable agreement of the parties thereto; and such Receivables
comply as to content and form with all applicable state laws and federal
disclosure laws relating to consumer credit, including without
limitation, consumer protection laws.
(4) Reliance letters relating to each opinion rendered to either
Rating Agency by 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 Thacher,
Proffitt & Wood, counsel to the Indenture Trustee, in form and scope
satisfactory to the Representatives and counsel for the Underwriters, to
the effect that:
-17-
(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 Richards, Layton and Finger,
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:
(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.
-18-
(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.
(7) The favorable opinion of Stroock & Stroock & Lavan 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 & Myers LLP, special
counsel to the Trust, dated the Closing Date, in form and scope
satisfactory to the Representatives and counsel for the Underwriters,
regarding the creation, attachment and perfection of a first priority
security interest in the Receivables, 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 Richards, Layton & Finger. To
the extent
-19-
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 & Myers LLP.
(9) The favorable opinion of O'Melveny & Myers 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 Richards, Layton & 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 business trust under the Delaware Business
Trust Act. The Trust has the power and authority under the Trust
Agreement and the Delaware Business 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.
(iii) The Indenture, the Sale and Servicing Agreement,
the Administration Agreement, the Note Depository Agreement, the
Revolving Liquidity Note 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
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of the Collateral (as defined in the Indenture) 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 May 22,
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 April 30, 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 May 22,
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
April 30, 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.
(ix) Under Section 3805(b) of the Business 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 Section 3805(c) of the Business 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 Business 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
-21-
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 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
-22-
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 Moody's 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 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-48, the second table on page S-48 insofar as it describes
the Selling Concessions and the Reallowances, the three paragraphs on page S-48
after the second table and the first and second sentences of the third full
paragraph on page S-49 and the seventh full paragraph on page S-49 (the
"Underwriters' Information"); provided that neither TMCC nor
-23-
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 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
-24-
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, 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
-25-
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 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
-26-
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 Deutsche Bank
Securities Inc., 31 West 52nd Street, 17th Floor, New York, New York 10019,
Attention: Asset Securitization Group and to Merrill Lynch, Pierce, Fenner &
Smith Incorporated, 4 World Financial Center, 250 Vesey Street, New York, New
York 10080, Attention: Asset Backed Finance Group; if sent to the Seller, will
be mailed, delivered or telegraphed and confirmed to it at Toyota Auto Finance
Receivables LLC, 19001 South Western Avenue, Torrance, California 90501,
Attention: Lloyd Mistele - President; or if sent to TMCC, will be mailed,
delivered or telegraphed and confirmed to it at Toyota Motor Credit Corporation,
19001 South Western Avenue, Torrance, California 90501, Attention: George Borst
- - 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 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
-27-
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.
Section 15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
-28-
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/ Lloyd Mistele
----------------------------------
Name: Lloyd Mistele
Title: President
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ George E. Borst
----------------------------------
Name: George E. Borst
Title: President and Chief
Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted, as of the
date first above written:
DEUTSCHE BANK SECURITIES INC.
By: /s/ Erik Falk
------------------------------
Name: Erik Falk
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By: /s/ Richard V. Lawrence
------------------------------
Name: Richard V. Lawrence
Title: Director
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By: /s/ Anthony Witkowsky
------------------------------
Name: Anthony Witkowsky
Title: Director
-29-
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
--------------------- -------------------
Deutsche Bank Securities Inc.............................. $135,450,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated........ $135,450,000
Bank of America Securities LLC............................ $27,090,000
JPMorgan Securities Inc................................... $27,090,000
Morgan Stanley & Co. Incorporated......................... $27,090,000
Salomon Smith Barney Inc.................................. $27,090,000
Guzman & Company.......................................... $3,870,000
The Williams Capital Group, L.P. ......................... $3,870,000
------------
Total...................................... $387,000,000
============
-31-
Schedule I-A-3
Principal Amount of
Class A-3 Underwriter Class A-3 Notes
--------------------- -------------------
Deutsche Bank Securities Inc.............................. $159,950,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated........ $159,950,000
Bank of America Securities LLC............................ $31,990,000
JPMorgan Securities Inc................................... $31,990,000
Morgan Stanley & Co. Incorporated......................... $31,990,000
Salomon Smith Barney Inc.................................. $31,990,000
Guzman & Company.......................................... $4,570,000
The Williams Capital Group, L.P. ......................... $4,570,000
------------
Total...................................... $457,000,000
============
-32-
Schedule I-A-4
Principal Amount of
Class A-4 Underwriter Class A-4 Notes
--------------------- -------------------
Deutsche Bank Securities Inc.............................. $92,400,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated........ $92,400,000
Bank of America Securities LLC............................ $18,480,000
JPMorgan Securities Inc................................... $18,480,000
Morgan Stanley & Co. Incorporated......................... $18,480,000
Salomon Smith Barney Inc.................................. $18,480,000
Guzman & Company.......................................... $2,640,000
The Williams Capital Group, L.P. ......................... $2,640,000
----------
Total...................................... $264,000,000
============
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