EXHIBIT 4.3
RECEIVABLES PURCHASE AGREEMENT
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
and
TOYOTA AUTO FINANCE RECEIVABLES LLC,
as Purchaser
Dated as of May 1, 2002
TABLE OF CONTENTS
PAGE
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I. DEFINITIONS
SECTION 1.01 Definitions........................................................1
SECTION 1.02 Other Definitional Provisions......................................4
II. CONVEYANCE OF RECEIVABLES
SECTION 2.01 Conveyance of Receivables..........................................4
SECTION 2.02 Representations and Warranties of the Seller and the Purchaser.....5
SECTION 2.03 Representations and Warranties of the Seller as to the
Receivables........................................................8
SECTION 2.05 Covenants of the Seller...........................................12
III. PAYMENT OF RECEIVABLES PURCHASE PRICE
SECTION 3.01 Payment of Receivables Purchase Price.............................13
IV. TERMINATION
SECTION 4.01 Termination.......................................................13
V. MISCELLANEOUS PROVISIONS
SECTION 5.01 Amendment.........................................................13
SECTION 5.02 Protection of Right, Title and Interest to Receivables............14
SECTION 5.03 Governing Law.....................................................14
SECTION 5.04 Notices...........................................................15
SECTION 5.05 Severability of Provisions........................................15
SECTION 5.06 Assignment........................................................15
SECTION 5.07 Further Assurances................................................15
SECTION 5.08 No Waiver; Cumulative Remedies....................................15
SECTION 5.09 Counterparts......................................................16
SECTION 5.10 Third-Party Beneficiaries.........................................16
SECTION 5.11 Merger and Integration............................................16
SECTION 5.12 Headings..........................................................16
SECTION 5.13 Indemnification...................................................16
SECTION 5.14 Merger or Consolidation of, or Assumption of the
Obligations of the Seller.........................................16
Schedule A - Schedule of Receivables..............................................A-1
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RECEIVABLES PURCHASE AGREEMENT, dated as of May 1, 2002, between Toyota
Motor Credit Corporation, a California corporation, as seller, and Toyota Auto
Finance Receivables LLC, a Delaware limited liability company, as purchaser.
In consideration of the premises and mutual agreements herein contained,
each party agrees as follows for the benefit of the other party and for the
benefit of the Purchaser, Issuer and Indenture Trustee:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Definitions. Whenever used in this Agreement, the following
words and phrases shall have the following meanings:
"Agreement" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Amount Financed" in respect of a Receivable means the aggregate amount
advanced under such Receivable toward the purchase price of the related Financed
Vehicle and any related costs, including but not limited to accessories,
insurance premiums, service and warranty contracts and other items customarily
financed as part of retail automobile and light duty truck installment sale
contracts.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate
of finance charges specified in such Receivable.
"Basic Documents" means this Receivables Purchase Agreement, the Trust
Agreement, the Sale and Servicing Agreement, the Indenture, the Administration
Agreement, the Securities Account Control Agreement and the other documents and
certificates delivered in connection herewith and therewith.
"Closing Date" shall mean May 23, 2002.
"Cutoff Date" shall mean April 1, 2002.
"Dealer Recourse" means, with respect to a Receivable, all recourse
rights against the Dealer which originated the Receivable, and any successor
Dealer.
"Deferred Prepayment" means, with respect to a Precomputed Receivable
and a Collection Period, the aggregate amount, if any, of Payments Ahead
remitted to the Servicer in respect of such Receivable during one or more prior
Collection Periods and currently held by the Servicer or in the Payahead
Account.
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"Financed Vehicle" means, with respect to a Receivable, the related
automobile or light duty truck, as the case may be, together with all accessions
thereto, securing the related Obligor's indebtedness under such Receivable.
"Indenture Trustee" shall mean The Bank of New York, as indenture
trustee under the Indenture, or any successor trustee thereunder.
"Lien" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' liens and any liens
that attach to a Receivable or any property, as the context may require, by
operation of law.
"Liquidation Proceeds" means, with respect to a Defaulted Receivable,
all amounts realized with respect to such Receivable from whatever sources
(including, without limitation, proceeds of any Insurance Policy), net of
amounts that are required by law or such Receivable to be refunded to the
related Obligor.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
related Financed Vehicle purchased in part or in whole by the execution and
delivery of such Receivable or any other Person who owes or may be liable for
payments under such Receivable.
"Owner Trustee" shall mean U.S. Bank Trust National Association, not in
its individual capacity but solely as owner trustee under the Trust Agreement,
or any successor trustee thereunder.
"Purchaser" shall mean Toyota Auto Finance Receivables LLC, in its
capacity as purchaser of the Receivables under this Agreement, and its
successors and assigns.
"Receivable" means any retail installment sale contract executed by an
Obligor in respect of a Financed Vehicle, and all proceeds thereof and payments
thereunder, which Receivable shall be identified in the Schedule of Receivables.
"Receivable File" means with respect to each Receivable:
(a) the fully executed original of the Receivable;
(b) documents evidencing or related to any Insurance Policy;
(c) the original credit application of each Obligor, fully
executed by such Obligor on TMCC's customary form, or on a form approved
by TMCC, for such application;
(d) the original certificate of title (or evidence that such
certificate of title has been applied for) or such documents that the
Servicer shall keep on file, in accordance with TMCC's customary
procedures, evidencing the security interest in the related Financed
Vehicle; and
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(e) any and all other documents that the Seller or the Servicer,
as the case may be, shall keep on file, in accordance with its customary
procedures, relating to such Receivable or the related Obligor or
Financed Vehicle.
"Receivables Purchase Price" shall mean $1,639,640,882.01.
"Released Warranty Amount" means, with respect to a Payment Date and to
a Warranty Receivable, the Deferred Prepayment, if any, for such Warranty
Receivable.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement dated as of May 1, 2002, by and among Toyota Auto Receivables 2002-B
Owner Trust, as issuer, Toyota Auto Finance Receivables LLC, as seller, and
Toyota Motor Credit Corporation, as servicer, and, as to which, the Indenture
Trustee is a third party beneficiary.
"Securities Account Control Agreement" shall have the meaning ascribed
thereto in the Sale and Servicing Agreement.
"Seller" shall mean Toyota Motor Credit Corporation, in its capacity as
seller of the Receivables under this Agreement, and its successors and assigns.
"Schedule of Receivables" means the schedule of receivables described in
Section 2.01(a) and attached as Schedule A hereto.
"Trust" means the Toyota Auto Receivables 2002-B Owner Trust, a Delaware
business trust.
"Trust Agreement" means the Amended and Restated Trust Agreement dated
as of May 1, 2002, by and between Toyota Auto Finance Receivables LLC, as
depositor, and U.S. Bank Trust National Association, as Owner Trustee.
"Warranty Purchase Payment" means, with respect to a Payment Date and to
(1) a Warranty Receivable which is a Precomputed Receivable repurchased by the
Seller as of the close of business on the last day of the related Collection
Period, (a) the sum of (i) all Scheduled Payments on such Receivable due after
the last day of such Collection Period, (ii) all past due Scheduled Payments for
which an Advance has not been made, (iii) an amount equal to any reimbursement
of Outstanding Advances made pursuant to Section 5.04(b) of the Sale and
Servicing Agreement with respect to such Receivable and (iv) an amount equal to
all other Outstanding Advances made pursuant to Section 5.04(c) of the Sale and
Servicing Agreement with respect to such Receivable, minus (b) the sum of (i)
any Rebate (except to the extent specified in Section 4.03 of the Sale and
Servicing Agreement) and (ii) any other proceeds in respect of such Receivable
received during any Collection Period prior to or during such Collection Period
(to the extent applied to reduce the Principal Balance of such Receivable on
such Payment Date), and (2) a Warranty Receivable which is a Simple Interest
Receivable repurchased by the Seller as of the close of business on the last day
of the related Collection Period, the sum of (a) the unpaid Principal Balance
owed by the Obligor in respect of such Receivable as of the last day of the
related Collection Period plus (b) interest on such unpaid
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Principal Balance at a rate equal to the related APR to the last day in the
related Collection Period.
"Warranty Receivable" means a Receivable purchased by the Seller
pursuant to Section 2.03(c).
SECTION 1.02 Other Definitional Provisions.
(a) All capitalized terms not otherwise defined in this Agreement
shall have the defined meanings used in the Sale and Servicing Agreement or
Trust Agreement, as the case may be.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section, subsection
and Schedule references contained in this Agreement are references to Sections,
subsections and Schedules in or to this Agreement unless otherwise specified;
and the word "including" means including without limitation.
ARTICLE II.
CONVEYANCE OF RECEIVABLES
SECTION 2.01 Conveyance of Receivables.
(a) Subject to the terms and conditions of this Agreement, on the
Closing Date the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, without recourse (subject to the Seller's
obligations hereunder):
(i) all right, title and interest of the Seller in and to the
Receivables listed in the Schedule of Receivables and all monies
due thereon or paid thereunder or in respect thereof (including
proceeds of the repurchase of Receivables by the Seller pursuant
to Section 2.03(c)) on or after the Cutoff Date;
(ii) the interest of the Seller in the security interests in the
Financed Vehicles granted by the Obligors pursuant to the
Receivables and any accessions thereto;
(iii) the interest of the Seller in any proceeds of any physical
damage insurance policies covering Financed Vehicles and in any
proceeds of any credit life or credit disability insurance
policies relating to the Receivables or the Obligors;
(iv) the interest of the Seller in any Dealer Recourse;
(v) the right of the Seller to realize upon any property
(including the right to receive future Liquidation Proceeds) that
shall have secured a Receivable and have been repossessed in
accordance with the terms thereof; and
(vi) all proceeds of the foregoing.
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It is the intention of the Seller that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
the Seller to the Purchaser and the beneficial interest in and title to the
Receivables shall not be part of the Seller's estate in the event of the filing
of a bankruptcy petition by or against the Seller under any bankruptcy law. The
Seller agrees to execute and file all filings (including filings under the UCC)
necessary in any jurisdiction to provide third parties with notice of the sale
of the Receivables pursuant to this Agreement and to perfect such sale under the
UCC.
(b) In connection with the foregoing conveyance, the Seller
agrees to record and file in California, at its own expense, a financing
statement with respect to the Receivables necessary to provide third parties
with notice of the conveyance hereunder and to perfect the sale of the
Receivables to the Purchaser, and the proceeds thereof (and any continuation
statements as are required by applicable state law), and to deliver a
file-stamped copy of each such financing statement (or continuation statement)
or other evidence of such filings (which may, for purposes of this Section,
consist of telephone confirmation of such filing with the file stamped copy of
each such filing to be provided to the Purchaser in due course), as soon as is
practicable after receipt by the Seller thereof.
In connection with the foregoing conveyance, the Seller further agrees,
at its own expense, on or prior to the Closing Date (i) to annotate and indicate
in its computer files that the Receivables have been transferred to the
Purchaser pursuant to this Agreement, (ii) to deliver to the Purchaser a
computer file or printed or microfiche list containing a true and complete list
of all such Receivables, identified by account number and by the Principal
Balance of each Receivable as of the Cutoff Date, which file or list shall be
marked as Schedule A to this Agreement and is hereby incorporated into and made
a part of this Agreement and (iii) to deliver the Receivable Files to or upon
the order of the Purchaser.
SECTION 2.02 Representations and Warranties of the Seller and the
Purchaser.
(a) The Seller hereby represents and warrants to the Purchaser as
of the date of this Agreement and the Closing Date that:
(i) Organization and Good Standing. The Seller shall have been
duly organized and shall be validly existing as a corporation in
good standing under the laws of the State of California, with
corporate power and authority to own its properties and to
conduct its business as such properties shall be currently owned
and such business is presently conducted, and had at all relevant
times, and shall now have, corporate power, authority and legal
right to acquire, own and sell the Receivables.
(ii) Due Qualification. The Seller shall be duly qualified to do
business as a foreign corporation in good standing, and shall
have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications and
where the failure to so qualify will have a material adverse
effect on the ability of the Seller to conduct its business or
perform its obligations under this Agreement.
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(iii) Power and Authority. The Seller shall have the corporate
power and authority to execute and deliver this Agreement and to
carry out its terms; and the execution, delivery and performance
of this Agreement shall have been duly authorized by the Seller
by all necessary corporate action.
(iv) Binding Obligation. This Agreement shall constitute a legal,
valid and binding obligation of the Seller enforceable in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors' rights generally or by
general principles of equity.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof shall not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without
notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Seller, or conflict with or breach
any of the material terms or provisions of, or constitute (with
or without notice or lapse of time) a default under, any
indenture, agreement or other instrument to which the Seller is a
party or by which it shall be bound; nor result in the creation
or imposition of any lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument
(other than the Basic Documents); nor violate any law or, to the
best of the Seller's knowledge, any order, rule or regulation
applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its
properties; which breach, default, conflict, lien or violation
would have a material adverse effect on the earnings, business
affairs or business prospects of the Seller.
(vi) No Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic
or foreign, now pending, or to the Seller's knowledge,
threatened, against or affecting the Seller: (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that might
materially and adversely effect the performance by the Seller of
its obligations under, or the validity or enforceability of, this
Agreement.
(b) The Purchaser hereby represents and warrants to the Seller as
of the date of this Agreement and the Closing Date that:
(i) Organization and Good Standing. The Purchaser shall have been
duly organized and shall be validly existing as a limited
liability company in good standing under the laws of the State of
Delaware, and has power and authority to own its properties and
to conduct its business as such properties shall be currently
owned and such business is presently conducted, and had at all
relevant times, and shall now have, power, authority and legal
right to acquire and own the Receivables.
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(ii) Due Qualification. The Purchaser shall be duly qualified to
do business as a foreign limited liability company in good
standing, and shall have obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such
qualifications and where the failure to so qualify will have a
material adverse effect on the ability of the Purchaser to
conduct its business or perform its obligations under this
Agreement.
(iii) Power and Authority. The Purchaser shall have the power and
authority to execute and deliver this Agreement and to carry out
its terms; the Purchaser shall have full power and authority to
purchase the property to be purchased and shall have duly
authorized such purchase; and the execution, delivery and
performance of this Agreement shall have been duly authorized by
the Purchaser by all necessary action.
(iv) Binding Obligation. This Agreement shall constitute a legal,
valid and binding obligation of the Purchaser enforceable in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors' rights generally or by
general principles of equity.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof shall not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without
notice or lapse of time) a default under, the certificate of
formation or limited liability company agreement of the
Purchaser, or conflict with or breach any of the material terms
or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other
instrument to which the Purchaser is a party or by which it shall
be bound; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than the Basic
Documents), nor violate any law or, to the best of the
Purchaser's knowledge, any order, rule or regulation applicable
to the Purchaser of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its
properties; which breach, default, conflict, Lien or violation
would have a material adverse affect on the earnings, business
affairs or business prospects of the Purchaser.
(vi) No Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic
or foreign, now pending, or to the Purchaser's knowledge,
threatened, against or affecting the Purchaser: (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Purchaser
of its obligations under, or the validity or enforceability of,
this Agreement.
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(c) The representations and warranties set forth in this Section
shall survive the sale of the Receivables by the Seller to the Purchaser
pursuant to this Agreement and the sale of the Receivables by the Purchaser to
the Issuer pursuant to the Sale and Servicing Agreement. Upon discovery by the
Seller, the Purchaser or the Owner Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
SECTION 2.03 Representations and Warranties of the Seller as to the
Receivables.
(a) Eligibility of Receivables. The Seller hereby represents and
warrants as of the Cutoff Date that:
(i) Characteristics of Receivables. Each Receivable (A) shall
have been originated in the United States by a Dealer for the retail
sale of the related Financed Vehicle in the ordinary course of such
Dealer's business, shall have been fully and properly executed by the
parties thereto, shall have been purchased by the Seller from such
Dealer under an existing agreement with the Seller and shall have been
validly assigned by such Dealer to the Seller in accordance with the
terms of such agreement, (B) shall have created or shall create a valid,
subsisting and enforceable first priority security interest in favor of
the Seller in the related Financed Vehicle, which security interest
shall be assignable and has been assigned by the Seller to the
Purchaser, (C) shall provide for monthly payments that fully amortize
the Amount Financed by maturity (except for minimally different payments
in the first or last month in the life of the Receivable) and provide
for a finance charge or yield interest at its APR, in either case
calculated based on the Rule of 78s, the simple interest method or the
actuarial method, (D) shall contain customary and enforceable provisions
such that the rights and remedies of the holder thereof shall be
adequate for realization against the collateral of the benefits of the
security and (E) shall provide for, in the event that such Receivable is
prepaid, a prepayment that fully pays the Principal Balance and includes
accrued but unpaid interest.
(ii) Schedule of Receivables. The information set forth in the
Schedule of Receivables shall be true and correct in all material
respects as of the opening of business on the Cutoff Date, the
Receivables were selected at random from the retail installment sale
contracts included in the portfolio of the Seller meeting the selection
criteria set forth in this Section and no selection procedures believed
to be adverse to the interests of any Securityholders shall have been
utilized in selecting the Receivables.
(iii) Compliance with Law. To the knowledge of the Seller, each
Receivable, including each form of contract used to originate each
Receivable and each sale of the related Financed Vehicle, shall have
complied at the time such form of contract was used or such sale was
originated or made, and shall comply at the time of execution of this
Agreement in all material respects with all requirements of applicable
federal, state and local laws, and regulations thereunder, including
usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting
Act, the Fair Debt Collection Practices Act, the Federal Trade
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Commission Act, the Magnuson-Moss Warranty Act, Federal Reserve Board
Regulations B, M and Z, to the extent applicable, state adaptations of
the National Consumer Act and of the Uniform Consumer Credit Code and
other consumer credit, equal credit opportunity and disclosure laws,
except with respect to applicable Florida documentary stamp taxes and
applicable Texas Finance Code form of contract provisions as to which
the effect of noncompliance will not have a material adverse effect on
such Receivable.
(iv) Binding Obligation. Each Receivable shall constitute the
legal, valid and binding payment obligation in writing of the related
Obligor, enforceable by the holder thereof in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights in general and by general principles of
equity, regardless of whether such enforceability shall be considered in
a proceeding in equity or at law.
(v) No Bankrupt Obligors. None of the Receivables shall be due,
to the best knowledge of the Seller, from any Obligor who is presently
the subject of a bankruptcy proceeding or is insolvent.
(vi) No Government Obligors. None of the Receivables shall be due
from the United States or any state, or from any agency, department or
instrumentality of the United States or any state or local government.
(vii) Employee Obligors. None of the Receivables shall be due
from any employee of the Seller, the Purchaser or any of their
respective affiliates.
(viii) Security Interest in Financed Vehicles. Immediately prior
to the sale, assignment and transfer thereof pursuant hereto, each
Receivable shall be secured by a validly perfected first priority
security interest in the related Financed Vehicle in favor of the Seller
as secured party or all necessary and appropriate action with respect to
such Receivable shall have been taken to perfect a first priority
security interest in such Financed Vehicle in favor of the Seller as
secured party.
(ix) Receivables in Force. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Financed Vehicle
have been released in whole or in part from the lien granted by the
related Receivable.
(x) No Waivers. No provision of a Receivable shall have been
waived in such a manner that such Receivable fails to meet all of the
other representations and warranties made by the Seller herein with
respect thereto.
(xi) No Amendments. No Receivable shall have been amended or
modified in such a manner that the total number of Scheduled Payments
has been increased or that the related Amount Financed has been
increased or that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect
thereto.
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(xii) No Defenses. No facts shall be known to the Seller which
would give rise to any right of rescission, setoff, counterclaim or
defense, nor shall the same have been asserted or threatened, with
respect to any Receivable.
(xiii) No Liens. To the knowledge of the Seller, no liens or
claims shall have been filed as of the date of this Agreement, including
liens for work, labor or materials relating to a Financed Vehicle, that
shall be liens prior to, or equal or coordinate with, the security
interest in such Financed Vehicle granted by the related Receivable,
which Liens shall not have been released or satisfied as of the Closing
Date.
(xiv) No Defaults; No Repossession. Except for payment defaults
that, as of the Cutoff Date, have been continuing for a period of not
more than 30 days, no default, breach, violation or event permitting
acceleration under the terms of any Receivable shall have occurred as of
the Cutoff Date; no continuing condition that with notice or the lapse
of time would constitute a default, breach, violation or event
permitting acceleration under the terms of any Receivable shall have
arisen; the Seller shall not have waived any of the foregoing; and no
Financed Vehicle has been repossessed without reinstatement as of the
Cutoff Date.
(xv) Insurance. The terms of each Receivable require the Obligor
to obtain and maintain physical damage insurance covering the related
Financed Vehicle in accordance with the Seller's normal requirements.
The terms of each Receivable allow, but do not require the Seller to
(and the Seller, in accordance with its current normal servicing
procedures, does not) obtain any such coverage on behalf of the Obligor.
(xvi) Good Title. It is the intention of the Seller that the
transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Receivables from the Seller to the Purchaser
and that the beneficial interest in and title to the Receivables not be
part of the debtor's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the Seller
to any Person other than the Purchaser, and no provision of a Receivable
shall have been waived, as provided in clause (x) above; immediately
prior to the transfer and assignment herein contemplated, the Seller had
good and marketable title to each Receivable free and clear of all Liens
and rights of others; immediately upon the transfer and assignment
thereof, the Purchaser shall have good and marketable title to each
Receivable, free and clear of all Liens and rights of others; and the
transfer and assignment herein contemplated has been perfected under the
UCC.
(xvii) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement or pursuant to transfers of the related certificates of
title shall be unlawful, void or voidable.
(xviii) All Filings Made. As of the Closing Date, all filings
(including UCC filings) necessary in any jurisdiction to provide third
parties with notice of the transfer
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and assignment herein contemplated, to perfect the sale of the
receivables from the Seller to the Purchaser and to give the Purchaser a
first priority perfected security interest in the Receivables shall have
been made.
(xix) One Original. There shall be only one original executed
copy of each Receivable.
(xx) Tangible Chattel Paper. Each Receivable constitutes
"tangible chattel paper" as defined in the UCC.
(xxi) Additional Representations and Warranties. (A) Each
Receivable shall have an original number of Scheduled Payments of not
less than 12 nor more than 72 and, as of the Cutoff Date, a remaining
number of Scheduled Payments of not less than 4 nor more than 72; (ii)
each Receivable provides for the payment of a finance charge based on an
APR ranging from 0% to 11.5%; (iii) each Receivable shall have had an
original principal balance of not less than $1,167 and not more than
$80,789 and, as of the Cutoff Date, an unpaid principal balance of not
less than $250 nor more than $60,000; (iv) no Receivable was originated
under a special financing program; (v) no Receivable shall have a
Scheduled Payment that is more than 30 days past due as of the Cutoff
Date; (vi) no Financed Vehicle was subject to force-placed insurance as
of the Cutoff Date; (vii) there is no Receivable as to which payments
ahead of more than 6 Scheduled Payments have been received from or on
behalf of the related Obligor; and (viii) each Receivable is being
serviced by Toyota Motor Credit Corporation.
(b) Notice of Breach. The representations and warranties set
forth in this Section shall speak as of the execution and delivery of this
Agreement, but shall survive the sale, transfer and assignment of the
Receivables to the Purchaser and any subsequent assignment or transfer pursuant
to Article Two of the Sale and Servicing Agreement. The Purchaser, the Seller or
the Owner Trustee, as the case may be, shall inform the other parties promptly,
in writing, upon discovery of any breach of the Seller's representations and
warranties pursuant to this Section which materially and adversely affects the
interests of the Purchaser (or any assignee thereof) in any Receivable.
SECTION 2.04 Repurchase of Receivables. In the event of a breach of any
representation or warranty set forth in Section 2.03(a) which materially and
adversely affects the interest of the Purchaser (or any assignee thereof) in any
Receivable, unless such breach shall have been cured in all material respects,
the Seller shall repurchase such Receivable by the last day of the second
Collection Period following the Collection Period in which the discovery of the
breach is made or notice is received, as the case may be (or, at the option of
the Seller, the last day in the first Collection Period following the Collection
Period in which such discovery is made or such notice received). This repurchase
obligation shall obtain for all representations and warranties of the Seller
contained in Section 2.03(a) of this Agreement whether or not the Seller has
knowledge of the breach at the time of the breach or at the time the
representations and warranties were made. In consideration of the purchase of
any such Receivable, the Seller shall remit an amount equal to the Warranty
Purchase Payment in respect of such Receivable to the Purchaser, and the Seller
shall be entitled to receive the Released Warranty Amount from (or on
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behalf of) the Purchaser. Except as described below, the sole remedy of the
Purchaser (or any assignee thereof) with respect to a breach of the Seller's
representations and warranties pursuant to this Agreement shall be to require
the Seller to repurchase the related Receivable pursuant to this Section. Upon
any such repurchase, the Purchaser shall, without further action, be deemed to
transfer, assign, set-over and otherwise convey to the Seller, without recourse,
representation or warranty, all the right, title and interest of the Purchaser
in, to and under such repurchased Receivable, all monies due or to become due
with respect thereto and all proceeds thereof. The Purchaser or the Owner
Trustee, as applicable, shall execute such documents and instruments of transfer
or assignment and take such other actions as shall reasonably be requested by
the Seller to effect the conveyance of such Receivable pursuant to this Section.
The Seller hereby indemnifies the Purchaser for any civil liabilities that arise
under Texas Finance Code Section 349.003 as a result of the use of the Law 9/99R
and Lexus 10/99 forms of contract to originate the Receivables in Texas, and for
any civil liabilities relating to a determination that the disclosures in the
forms of contracts used to originate Receivables in Massachusetts violate
Massachusetts General Laws Chapter 255B, Section 14, or Massachusetts General
Laws Chapter 140D and the regulations promulgated by the Division of Banks
thereunder with respect to Truth-in-Lending appearing at 209 CMR 32.00.
SECTION 2.05 Covenants of the Seller. The Seller hereby covenants that:
(a) Security Interests. Except for the conveyances hereunder, the
Seller will not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on any Receivable, whether now
existing or hereafter created, or any interest therein, the Seller will
immediately notify the Purchaser of the existence of any Lien on any Receivable
and, in the event that the interests of the Purchaser (or any assignee thereof)
in such Receivable are materially and adversely affected, such Receivable shall
be repurchased from the Purchaser by the Seller in the manner and with the
effect specified in Section 2.03(c), and the Seller shall defend the right,
title and interest of the Purchaser in, to and under the Receivables, whether
now existing or hereafter created, against all claims of third parties claiming
through or under the Seller; provided, however, that nothing in this subsection
shall prevent or be deemed to prohibit the Seller from suffering to exist upon
any of the Receivables, Liens for municipal or other local taxes if such taxes
shall not at the time be due and payable or if the Seller shall currently be
contesting the validity of such taxes in good faith by appropriate proceedings
and shall have set aside on its books adequate reserves with respect thereto.
(b) Delivery of Payments. The Seller agrees to deliver in kind
upon receipt to the Servicer under the Sale and Servicing Agreement (if other
than the Seller) all payments received by the Seller in respect of the
Receivables as soon as practicable after receipt thereof by the Seller from and
after the appointment of the Servicer as Servicer under the Sale and Servicing
Agreement with respect to the Toyota Auto Receivables 2002-B Owner Trust.
(c) Conveyance of Receivables. The Seller covenants and agrees
that it will not convey, assign, exchange or otherwise transfer the Receivables
to any Person prior to the termination of this Agreement pursuant to Article IV
hereof.
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(d) No Impairment. The Seller shall take no action, nor omit to
take any action, which would impair the rights of the Purchaser in any
Receivable, nor shall it, except as expressly provided in this Agreement or the
Sale and Servicing Agreement, reschedule, revise or defer payments due on any
Receivable.
(e) Enforcement of Contractual Provisions. The Servicer will not
seek to enforce against any obligor under any retail installment contract or
interpose as a defense to any claim by any obligor the provision in any Texas
contract relating to Texas Finance Code Section 348.412, in which the obligor
agreed not to assert against a subsequent holder or assignee of the contract any
claims or defenses the obligor may have against the seller or manufacturer of
the vehicle.
(f) Delivery of Opinion of Counsel. On the Closing Date, the
Seller will obtain and deliver to the Purchaser an Opinion of Counsel to the
effect that all of the Receivables originated in the State of California are
enforceable under California law and applicable federal laws, subject to
customary exceptions.
ARTICLE III.
PAYMENT OF RECEIVABLES PURCHASE PRICE
SECTION 3.01 Payment of Receivables Purchase Price. In consideration of
the sale of the Receivables from the Seller to the Purchaser as provided in
Section 2.01, on the Closing Date the Purchaser agrees to pay the Seller an
amount equal to the Receivables Purchase Price. The Receivables Purchase Price
shall be paid in the form of (i) $1,549,369,783.00, the net cash proceeds from
the sale by the Purchaser of the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes and the net cash proceeds of the sale of the Class A-1 Notes to
TMCC (less amounts retained to pay expenses of the Purchaser), and (ii)
$90,271,099.01, evidenced by an advance under a subordinated non-recourse
promissory note.
ARTICLE IV.
TERMINATION
SECTION 4.01 Termination. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate,
except for the indemnity obligations of the Seller as provided herein, upon the
termination of the Trust Agreement and dissolution of the Issuer as provided in
Article IX of the Trust Agreement.
ARTICLE V.
MISCELLANEOUS PROVISIONS
SECTION 5.01 Amendment.
(a) This Agreement may be amended from time to time by the
Purchaser and the Seller to cure any ambiguity, to correct or supplement any
provision herein which may be
13
inconsistent with any other provision herein, or to add any other provision with
respect to matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement or the Trust Agreement and
Sale and Servicing Agreement; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel to the Purchaser delivered to the Owner
Trustee, adversely affect in any material respect the interests of the Issuer as
assignee of the Purchaser's rights and interests hereunder.
(b) This Agreement may also be amended from time to time by the
Purchaser and the Seller with the consent of the Owner Trustee for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement.
SECTION 5.02 Protection of Right, Title and Interest to Receivables.
(a) The Seller at its expense shall cause this Agreement, all
amendments hereto and/or all financing statements and continuation statements
and any other necessary documents covering the Purchaser's right, title and
interest to the Receivables and other property conveyed by the Seller to the
Purchaser hereunder to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the right, title
and interest of the Purchaser hereunder to all of the Receivables and such other
property. The Seller shall deliver to the Purchaser file-stamped copies of, or
filing receipts for, any document recorded, registered or filed as provided
above, as soon as available following such recording, registration or filing.
The Purchaser and the Owner Trustee shall cooperate fully with the Seller in
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this subsection.
(b) Within 30 days after the Seller makes any change in (i) its
location of organization under Section 9-307(e) of the UCC or (ii) its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-507 or 9-508 of the UCC as in effect
in the applicable state, the Seller shall give the Purchaser notice of any such
change and shall execute and file such financing statements or amendments as may
be necessary to continue the perfection of the Purchaser's security interest in
the Receivables and the proceeds thereof.
(c) The Seller will give the Purchaser prompt written notice of
any relocation of any office from which the Seller keeps records concerning the
Receivables or of its principal executive office and whether, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement and shall execute and file such financing
statements or amendments as may be necessary to continue the perfection of the
interest of the Purchaser in the Receivables and the proceeds thereof.
SECTION 5.03 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
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SECTION 5.04 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (a) in
the case of the Purchaser, to Toyota Auto Finance Receivables LLC, 19300
Gramercy Place, Torrance, California 90509, Attention: President; (b) in the
case of Toyota Motor Credit Corporation, 19001 South Western Avenue, Torrance,
California 90501, Attention: Treasury Department, Vice President, Treasury; and
(c) in the case of the Owner Trustee, to U.S. Bank Trust National Association,
300 East Delaware Avenue, Suite 813, Wilmington, Delaware 19801-1515; (d) in the
case of the Indenture Trustee, to The Bank of New York, 5 Penn Plaza, 16th
Floor, New York, New York 10001; or, as to any of such Persons, at such other
address as shall be designated by such Person in a written notice to the other
Persons.
SECTION 5.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions and terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
SECTION 5.06 Assignment. This Agreement may not be assigned by the
Purchaser or the Seller except as contemplated by this Section, Section 5.14 of
this Agreement, the Trust Agreement and the Sale and Servicing Agreement;
provided, however, that simultaneously with the execution and delivery of this
Agreement, the Purchaser shall assign all of its right, title and interest
herein to the Owner Trustee for the benefit of any Securityholders as provided
in Section 2.01 of the Sale and Servicing Agreement, to which the Seller hereby
expressly consents. The Seller also acknowledges that the Issuer will further
assign the rights and interests of the Purchaser hereunder to the Indenture
Trustee for the benefit of the Noteholders pursuant to the Indenture. The Seller
agrees to perform its obligations hereunder for the benefit of the Issuer, and
agrees that the Owner Trustee or the Indenture trustee, as applicable, may
enforce the provisions of this Agreement, exercise the rights of the Purchaser
and enforce the obligations of the Seller hereunder without the consent of the
Purchaser.
SECTION 5.07 Further Assurances. The Seller and the Purchaser agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party hereto
or by the Owner Trustee more fully to effect the purposes of this Agreement,
including, without limitation, the execution of any financing statements,
amendments, continuation statements or releases relating to the Receivables for
filing under the provisions of the UCC or other law of any applicable
jurisdiction.
SECTION 5.08 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Purchaser, the Owner Trustee, the
Indenture Trustee or the Seller, of any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
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SECTION 5.09 Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 5.10 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties signatory hereto, and the Owner
Trustee for the benefit of any Securityholders, which shall be considered to be
a third-party beneficiary hereof. Except as otherwise provided in this
Agreement, no other Person will have any right or obligation hereunder.
SECTION 5.11 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
SECTION 5.12 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 5.13 Indemnification. The Seller shall indemnify and hold
harmless the Purchaser, the Issuer, the Owner Trustee and the Securityholders
from and against any and all costs, expenses, losses, claims, damages, injury
and liabilities to the extent that such cost, expense, loss, claim, damage or
liability arose out of, and was imposed upon such Person through the willful
misconduct or negligence of the Seller in the performance of its duties under
this Agreement or by reason of reckless disregard of its obligations and duties
under this Agreement, including, but not limited to, any judgment, award,
settlement, reasonable attorneys' fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim; provided, however, that the Seller shall not indemnify any such Person if
such acts, omissions or alleged acts or omissions constitute negligence or
willful misconduct by the Purchaser, the Owner Trustee or any Securityholders.
In case any such action is brought against a party indemnified under this
Section 5.13 and it notifies the Seller of the commencement thereof, the Seller
will assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who may, unless there is, as evidenced by an Opinion of
Counsel stating that there is an unwaivable conflict of interest, be counsel to
the Seller), and the Seller will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, other than reasonable
costs of investigation.
SECTION 5.14 Merger or Consolidation of, or Assumption of the
Obligations of, the Seller.
(a) The Seller shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the corporation formed by such consolidation or into which
the Seller is merged or the Person which acquires by conveyance
or transfer the properties and assets of the Seller substantially
as an entirety shall be organized and existing
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under the laws of the United States or any State or the District
of Columbia, and, if the Seller is not the surviving entity,
shall expressly assume, by an agreement supplemental hereto,
executed and delivered to the Purchaser and the Owner Trustee, in
form reasonably satisfactory to the Purchaser and the Owner
Trustee, the performance of every covenant and obligation of the
Seller hereunder and shall benefit from all the rights granted to
the Seller hereunder in all material respects; and
(ii) The Seller shall have delivered to the Purchaser and the
Owner Trustee an Officer's Certificate of the Seller and an
Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental agreement comply
with this Section and that all conditions precedent herein
provided for relating to such transaction have been complied
with.
(b) The obligations of the Seller hereunder shall not be
assignable nor shall any Person succeed to the obligations of the Seller
hereunder except in each case in accordance with the provisions of the foregoing
paragraph and of Section 5.06.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
By: /s/ GEORGE E. BORST
--------------------------------------------
Name: George E. Borst
Title: President and Chief Executive Officer
TOYOTA AUTO FINANCE RECEIVABLES LLC,
as Purchaser
By: /s/ LLOYD MISTELE
--------------------------------------------
Name: Lloyd Mistele
Title: President
ACCEPTED:
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
By: /s/ MELISSA A. ROSAL
--------------------------------------------
Name: Melissa A. Rosal
Title: Vice President
THE BANK OF NEW YORK
not in its individual capacity
but solely as Indenture Trustee
By: /s/ JOHN BOBKO
--------------------------------------------
Name: John Bobko
Title: Assistant Treasurer
S-1
SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- originals on file at the offices
of the Seller, the Purchaser and the Owner Trustee
A-1