Exhibit 1.2
TOYOTA AUTO RECEIVABLES 2000-B OWNER TRUST
$70,000,000 6.75% ASSET BACKED NOTES, CLASS A-2
$65,000,000 6.76% ASSET BACKED NOTES, CLASS A-3
PLACEMENT AGENCY AGREEMENT
September 26, 2000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center, North Tower
New York, New York 10080
Ladies and Gentlemen:
Toyota Motor Credit Receivables Corporation, a California corporation (the
"Seller") and a wholly owned subsidiary of Toyota Motor Credit Corporation, a
California corporation ("TMCC"), confirms its agreement with Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill") with respect to Merrill acting
as agent (the "Agent") for the sale by the Seller to [*] of $70,000,000 of Class
A-2 Notes (the "[*] Direct Purchase Notes") under a Note Purchase Agreement
dated September 26, 2000 among [*], the Seller and TMCC (the "[*] Note Purchase
Agreement") and to [*] of $65,000,000 of Class A-3 Notes (the "[*] Direct
Purchase Notes" and together with the [*] Direct Purchase Notes, the "Direct
Purchase Notes") under a Note Purchase Agreement dated September 26, 2000 among
[*], the Seller and TMCC (the "[*] Note Purchase Agreement") issued by the
Toyota Auto Receivables 2000-B Owner Trust (the "Trust"). The assets of the
Trust will include, among other things, a pool of retail installment sale
contracts (the "Receivables") secured by the new and used automobiles and light
duty trucks financed thereunder (the "Financed Vehicles") and certain monies due
or to become due thereunder on or after September 1, 2000 (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 September 1, 2000
(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 September 1, 2000 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 (as defined below) will be issued pursuant to the Indenture
to be dated as of September 1, 2000 (the "Indenture"), between the Trust and
U.S. Bank National Association (the "Trustee"). TMCC will cause the Seller to
form the Trust pursuant to a Trust
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[*] Confidential information omitted and filed separately with the Commission.
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Agreement (the "Trust Agreement") to be dated as of September 1, 2000, between
the Seller, U.S. Bank Trust National Association as owner trustee (the "Owner
Trustee") and U.S. Bank Trust National Association, as Delaware trustee
("Delaware Trustee"). As used herein, the term "Basic Documents" refers to the
Sale and Servicing Agreement, the Trust Agreement, the Indenture and the
Receivables Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Sale and Servicing Agreement and/or the
Underwriting Agreement. It is a condition to the effectiveness of this Placement
Agency Agreement that the Underwriting Agreement be duly executed and delivered
by the parties thereto.
Simultaneously with the sale of the Direct Purchase Notes, the Seller will
sell $359,000,000 aggregate principal amount of the Class A-2 Notes,
$342,000,000 aggregate principal amount of the Class A-3 Notes and $209,038,000
aggregate principal amount of the Class A-4 Notes (the "UNDERWRITTEN NOTES" and,
together with the Direct Purchase Notes, the "OFFERED NOTES"), to Deutsche Bank
Securities Inc. and Morgan Stanley & Co. Incorporated as joint global
coordinators, bookrunners and representatives of the several underwriters (the
"UNDERWRITERS"), pursuant to the Underwriting Agreement, dated September 26,
2000,(the "UNDERWRITING AGREEMENT"), among the Seller, TMCC, and the
Underwriters. The Trust will also issue $366,759,000 aggregate principal amount
of Class A-1 Notes (the "Class A-1 Notes" and together with the Offered Notes,
the "Notes") which are not being offered to the public.
1. APPOINTMENT. Subject to the terms and conditions stated herein and
subject to the reservation by the Seller and TMCC of the right to sell the
Underwritten Notes to the Underwriters, the Seller and TMCC hereby agree that,
to the extent they sell the Direct Purchase Notes in a direct placement, the
Direct Purchase Notes will be sold only through the Agent.
1.1 AGENT NOT ACTING AS PRINCIPAL. The Agent, in its capacity as a
placement agent hereunder, shall not have any obligation to purchase as
principal the Direct Purchase Notes from the Seller and TMCC.
1.2 SOLICITATIONS AS AGENT. If agreed upon between the Agent and the
Seller and TMCC, the Agent, acting solely as an agent for the Seller and
TMCC and not as principal, will solicit offers for the purchase of the
Direct Purchase. The Agent will communicate to the Seller and TMCC, orally,
each offer for the purchase of the Direct Purchase Notes solicited by it on
an agency basis other than those offers rejected by the Agent. The Seller
and TMCC may accept or reject any offer for the purchase of the Direct
Purchase Notes, in whole or in part. The Agent shall make reasonable
efforts to assist the Seller and TMCC in obtaining performance by each
purchaser whose offer for the purchase of the Direct Purchase Notes has
been solicited by it on an agency basis and accepted by the Seller and
TMCC. The Agent shall not have any liability to the Seller and TMCC in the
event that any such purchase is not consummated. If the Seller and TMCC
shall default on its obligation to deliver Direct Purchase Notes to a
purchaser whose offer has been solicited by the Agent on an agency basis
and accepted by the Seller and TMCC, the Seller and TMCC shall hold the
Agent harmless against any loss, claim
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or damage arising from or as a result of such default by the Seller and
TMCC.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS.
2.1 Representations, Warranties and Covenants of the Seller and TMCC.
The Seller and TMCC each represent and warrant to the Agent as follows:
(a) (i) Registration statements on Form S-3 (No. 333-76505) and (No.
333-41568), 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") have been filed with the Securities and Exchange
Commission (the "Commission") and each 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 each registration
statement (each an "initial registration statement") has been declared
effective, either (i) any additional registration statement (the
"additional registration statement") relating to the Offered Notes has been
filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the
Act and declared effective upon filing pursuant to Rule 462(b) and the
Offered Notes have been duly registered under the Act pursuant to the
initial registration statement and such additional registration statement
or (ii) any such additional registration statement proposed to be filed
with the Commission pursuant to Rule 462(b) will become effective upon
filing pursuant to Rule 462(b) and upon such filing the Offered Notes will
have been duly registered under the Act pursuant to the initial
registration statement and such additional registration statement. If the
Seller does not propose to amend each initial registration statement, any
such additional registration statement or any post-effective amendment to
either such registration statement filed with the Commission prior to the
execution and delivery of this Agreement, then the most recent amendment
(if any) to each such registration statement has been declared effective by
the Commission or has become effective upon filing pursuant to Rule 462(c)
under the Act ("Rule 462(c)") or Rule 462(b).
For purposes of this Agreement, "Effective Time" with respect to each
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 Agent that it does not propose to amend such
registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any)
filed prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing pursuant to
Rule 462(c) or (B) if the Seller has advised the Agent 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
Agent 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
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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.
Each 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
statement as of the Effective Time of the additional registration statement
(if any) pursuant to the General Instructions of the Form on which it is
filed and (C) deemed to be a part of such initial registration statement as
of its Effective Time pursuant to Rule 430A(b) under the Act ("Rule
430A(b)"), is hereinafter referred to as the "Initial Registration
Statement". The additional registration statement, as amended at its
Effective Time, including (A) the contents of 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." Each Initial Registration Statement
and the Additional Registration Statement are hereinafter referred to
collectively as the "Registration Statements" and individually as a
"Registration Statement." The form of prospectus supplement relating to the
Offered Notes (the "Prospectus Supplement") and the form of prospectus (the
"Base Prospectus") relating to the Registered Securities (including the
Offered Notes), as first filed with the Commission in connection with the
offering and sale of the Offered Notes pursuant to and in accordance with
Rule 424(b) under the Act ("Rule 424(b)") or, if no such filing is
required, as included in a Registration Statement, including all material
incorporated by reference in such prospectus, is hereinafter referred to as
the "Prospectus". Any reference herein to "Registration Statement" or
"Prospectus" shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended, (the
"Exchange Act") on or before the Effective Date of the Registration
Statement or the issue date of the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date
of the Prospectus, as the case may be, deemed to be incorporated therein by
reference; any reference in this Agreement to documents, financial
statements and schedules and other information which is "contained",
"included", "stated", "described" or "referred to" in the Registration
Statement or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such documents, financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may
be.
(ii) (A) On the Effective Date of any Registration Statement whose
Effective Time is prior to the execution and delivery of this Agreement,
each such Registration Statement conformed, (B) on the date of this
Agreement each such Registration Statement conforms and (C) on any related
Effective Date subsequent to the date of this Agreement, each such
Registration Statement will conform, in all material respects, with the
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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. If the Effective Time of the Initial Registration Statement is
subsequent to the date of this Agreement, no Additional Registration
Statement has been or will be filed.
(iii) The consummation of the transactions contemplated by this
Agreement and the Basic Documents, and the fulfillment of the terms
thereof, will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation
of any lien, charge, or encumbrance upon any of the property or assets of
the Seller or TMCC pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Seller or TMCC is a debtor or
guarantor.
(iv) No consent, approval, or order of, or filing with, any court or
governmental agency or body is required to be obtained or made by the
Seller or TMCC for the consummation of the transactions in the manner
contemplated by this Agreement except such as have been obtained and made
under the Act or the Rules and Regulations, such as may be required under
state securities laws and the filing of any financing statements required
to perfect the transfer of the Receivables.
(v) Neither the Seller nor TMCC is in violation of its charter or
by-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or instrument
to which it is a party or by which it or its properties are bound which
could have a material adverse effect on the transactions contemplated
herein or in the Basic Documents. The execution, delivery and performance
of this Agreement and the Basic Documents and the issuance of the Notes and
sale of the Offered Notes and compliance with the terms and provisions of
the Notes will not, subject to obtaining any consents or approvals as may
be required under the securities laws of various jurisdictions in the
United States and elsewhere, result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Seller or TMCC or any of their respective properties
or any agreement or instrument to which the Seller or TMCC is a party or by
which the Seller or TMCC is bound or to which any of their respective
properties is subject, or the charter or by-laws of the Seller or TMCC, and
each of the Seller and TMCC has full corporate
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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
September 25, 2000 the Current Report on Form 8-K with respect to the Term
Sheet dated September 25, 2000 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) 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.
(c) As of the Closing Date, (A)(i) the representations and warranties of
the Seller in this Agreement are true and correct, (ii) 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, (iii) 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 Agent
and (iv) 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, which in the reasonable judgment of the Agent, materially
impairs the investment quality of the Direct Purchase Notes, or makes it
impractical or inadvisable to proceed with completion of the sale of and payment
for the Direct Purchase Notes and, (B)(i) the representations and warranties of
TMCC in this Agreement are true and correct, and (ii) 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 in the reasonable judgment of the Agent,
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materially impairs the investment quality of the Direct Purchase Notes, or makes
it impractical or inadvisable to proceed with completion of the sale of and
payment for the Direct Purchase Notes.
(d) On the Closing Date, the Offered Notes shall have been rated "AAA" by
Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies,
Inc. ("Standard and Poor's) and "Aaa" by Moody's Investors Service, Inc.
("Moody's").
2.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF AGENT. The Agent
represents and warrants to the Seller and TMCC as follows:
(a) DUE ORGANIZATION. The Agent has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of Delaware and has power and authority to enter into and perform its
obligations under this Agreement.
(b) AUTHORIZATION OF THIS AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Agent.
(c) AFFILIATES. The Agent is an affiliate of [*] and [*].
(d) OFFERS. With respect to offers or sales outside of the United
States, the Agent makes the following representations and warranties:
(i) The Agent will comply with all applicable laws and
regulations in each jurisdiction in which it places, offers or sells
Direct Purchase 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
Direct Purchase Notes under the laws and regulations in force in any
jurisdiction, to which it is subject or in which it makes such
purchases, offers or sales and neither the Seller or TMCC shall have
any responsibility therefor.
(ii) No action has been or will be taken by such Agent that would
permit a public offering of the Direct Purchase Notes or possession,
or distribution of any offering material in relation to the Direct
Purchase 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.
(iii) The Agent shall not offer, sell or deliver any of the
Direct Purchase 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.
(iv) The Agent acknowledges that it is not authorized to give any
information or make any representations in relation to the Direct
Purchase Notes other than those contained or incorporated by reference
in the Prospectus for the Direct Purchase Notes and such additional
information, if any, as the Seller or
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[*] Confidential information omitted and filed separately with the Commission.
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TMCC shall, in writing, provide to and authorize such Agent so to use
and distribute to actual and potential purchasers of Direct Purchase
Notes.
(v) The Agent has not offered or sold and will not offer or sell,
prior to the date six months after their date of issuance, any Direct
Purchase 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.
(vi) The Agent has complied and will comply with all applicable
provisions of the Financial Services Act 1986 ("FSA") with respect to
anything done by such Agent in relation to the Direct Purchase Notes
in, from or otherwise involving the United Kingdom.
(vii) The Agent will have only issued or passed on and will only
issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Direct Purchase Notes, to a person
who is of a kind described in Article 11(3) of the FSA (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
3. FEE. The Seller and TMCC agree to pay the Agent a fee in the amount
of 0.125% of the principal amount of the [*] Direct Purchase Notes sold through
the Agent and a fee in the amount of 0.175% of the principal amount of the [*]
Direct Purchase Notes sold through the Agent. Such fee shall be paid from the
proceeds to the Seller and TMCC on the date of such sale.
4. PAYMENT OF EXPENSES. The Seller and TMCC will pay all their
respective expenses, if any, incident to the issuance of the Direct Purchase
Notes and the performance of its obligations, if any, under this Agreement. The
Agent will pay all of its expenses, if any, incident to the issuance of the
Direct Purchase Notes and the performance of its obligations, if any, under this
Agreement.
5. INDEMNIFICATION, CONTRIBUTION AND LIMIT ON LIABILITY.
(a) The Seller and TMCC will, jointly and severally, indemnify and
hold harmless the Agent against any losses, claims, damages or liabilities,
joint or several as incurred, to which the Agent 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
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[*] Confidential information omitted and filed separately with the Commission.
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the Agent for any legal or other expenses reasonably incurred by the Agent 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 to the extent that any such loss,
claim, damage or liability arises or is based on the Underwriter's Information;
and provided further, that neither the Seller nor TMCC will be liable under this
subsection (a) to the Agent to the extent that such loss, claim, damages or
liabilities arose out of or is based upon an untrue statement or alleged 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 the Agent 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 Direct Purchase Notes.
(b) 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) 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) 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. 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 5 (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.
(c) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
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) 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 Agent, on the other hand, from the offering of the Direct
Purchase Notes or
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(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 Agent 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 Agent on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Direct Purchased
Notes (before deducting expenses) received by the Seller and TMCC bear to the
total fees received by the Agent. 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 Agent 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 (c) 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 (c). Notwithstanding the provisions of this
subsection (c), the Agent shall not be required to contribute any amount in
excess of the amount by which the price to purchasers at which the Direct
Purchase Notes placed by it exceeds the amount of any damages which the Agent
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(d) 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
the Agent within the meaning of the Act; and the obligations of the Agent under
this Section shall be in addition to any liability that the Agent 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.
(e) The indemnity and contribution agreements contained in this Section 5
and the representations and warranties of the Seller and TMCC and the Agent in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by any Agent
or on behalf of the Agent or any person controlling the Agent or by or on behalf
of the Seller and TMCC and their respective directors or officers or any person
controlling either the Seller or TMCC and (iii) placement of the Direct Purchase
Notes.
6. OPINIONS.
The Seller and TMCC agrees that all opinions with respect to the
transaction that are addressed to the Representatives will also include as
addressee: Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Placement
Agent.
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7. NOTICES.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Seller:
Toyota Motor Credit Receivables Corporation
19001 South Western Avenue
Torrance, California 90501
Attention: Lloyd Mistele - President
If to TMCC:
Toyota Motor Credit Receivables Corporation
19001 South Western Avenue
Torrance, California 90501
Attention: George Borst - Senior Vice President and General Manager
Telephone No.: (310) 787-1310
Telecopy No.: (310) 787-6194
If to the Agent:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Attention: Manager-Asset Backed Finance Group
Telephone No.: (212) 449-0349
Telecopy No.: (212) 449-9015
8. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agent, the Seller, TMCC and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons referred to in Section 5 hereof and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and their respective
successors, and said controlling persons and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of the Direct Purchase Notes shall be deemed to be a successor by
reason merely of such purchase.
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9. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
10. TERMINATION OF THIS AGREEMENT.
This Agreement and each Party's obligations hereunder may be terminated by
the Agent or by the Seller and TMCC by notice thereof to the other party at any
time prior to such time as the Agent shall have arranged the purchase by any
purchaser of the Direct Purchase Notes or subsequent to such time if any
purchaser has defaulted on its obligation to purchase such Direct Purchase
Notes; provided, however, that in the event the Seller and TMCC do not perform
any obligation under this Agreement or any representation and warranty hereunder
is incomplete or inaccurate in any respect, this Agreement and all of the
Agent's obligations hereunder may be immediately terminated by the Agent by
notice thereof to the Seller and TMCC. Notwithstanding any termination of or
under this Agreement as provided herein, there shall be no liability of any
party to any other party, except as otherwise provided in the Section 4 relating
to the payment of fees and expenses and it being further understood that the
Sections relating to indemnification, limitations on the liability of
indemnified parties, contribution, settlements and choice of law will survive
any such termination.
11. WRITING REQUIRED TO WAIVE, AMEND OR MODIFY.
No waiver, amendment or other modification of this Agreement shall be
effective unless in writing and signed by each party to be bound thereby.
12. PARTIES.
This Agreement incorporates the entire understanding of the parties with
respect to this engagement of the Agent by the Seller and TMCC, and supersedes
all previous agreements regarding such engagement, should they exist.
13. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return ten counterparts hereof, whereupon this Placement Agency
Agreement, along with all counterparts, will become a binding agreement among
the Seller, TMCC and the Agent in accordance with its terms.
Very truly yours,
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION
By: /s/ LLOYD MISTELE
--------------------------------------------------
Name: Lloyd Mistele
Title: President
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ GEORGE E. BORST
--------------------------------------------------
Name: George E. Borst
Title: Senior Vice President and General Manager
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ THEODORE F. BRECK
------------------------------------------------
Name: Theodore F. Breck
Title: Authorized Signatory
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