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________________________________________________________________________________
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
July 17, 1996
Toyota Motor Credit Receivables Corporation on behalf of the
Toyota Auto Receivables 1996-A Grantor Trust
------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
California 333-4336 33-056836
- ---------------------------- ------------ ------------------
(State of Incorporation) (Commission (I.R.S. Employer
File Number) Identification No.)
19001 South Western Avenue 90509
Torrance, California ------------------
- ---------------------------- (Zip Code)
(Address of Principal
Executive Offices)
Registrant's telephone number, including area code (310) 787-1310
No Change
-------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
________________________________________________________________________________
________________________________________________________________________________
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Item 5. Other Events.
On July 17, 1996, Toyota Motor Credit Receivables Corporation
("TMCRC"), Toyota Motor Credit Corporation ("TMCC") and Goldman, Sachs & Co.,
on its own behalf and as representative of the several underwriters named
therein, executed that certain Underwriting Agreement (the "Underwriting
Agreement") relating to the public offering of the Toyota Auto Receivables
1996-A Grantor Trust 6.30% Asset Backed Certificates, Class A and 6.50% Asset
Backed Certificates Class B (the "Offered Certificates"). The Offered
Certificates have been registered pursuant to the Securities Act of 1933, as
amended, under a Registration Statement on Form S-3 (Commission File No.
333-4336).
On July 24, 1996, TMCC and TMCRC entered into that certain Receivables
Purchase Agreement (the "Receivables Purchase Agreement"), dated as of July 1,
1996, pursuant to which TMCC transferred to TMCRC certain retail installment
sales contracts relating to certain new and used automobiles and light duty
trucks (the "Receivables") and related property.
On July 24, 1996 TMCRC, TMCC and Bankers Trust Company, as trustee
(the "Trustee"), entered into that certain Pooling and Servicing Agreement (the
"Pooling Agreement"), dated as of July 1, 1996, pursuant to which the
Receivables, and related property, were transferred to the Trustee on behalf of
the Toyota Auto Receivables 1996-A Grantor Trust and the Offered Certificates
were issued.
The Underwriting Agreement, Receivables Purchase Agreement and Pooling
Agreement, in the forms in which they were executed, are being filed hereby as
Exhibits 99.2, 99.3 and 99.4.
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Item 7. Financial Statements; Pro Forma Financial Information and
Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
99.2 Underwriting Agreement dated July 17, 1996,
among Toyota Motor Credit Receivables
Corporation ("TMCRC"), Toyota Motor Credit
Corporation ("TMCC") and Goldman, Sachs &
Co., on its own behalf and as representative
of the several underwriters named therein.
99.3 Receivables Purchase Agreement dated as of
July 1, 1996, between TMCC and TMCRC.
99.4 Pooling and Servicing Agreement dated as of
July 1, 1996, among TMCRC, TMCC and Bankers
Trust Company.
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Exhibit Index
<TABLE>
<CAPTION>
Exhibit Page
- ------- ----
<S> <C>
99.2 Underwriting Agreement dated July 17, 1996, among
Toyota Motor Credit Receivables Corporation ("TMCRC"),
Toyota Motor Credit Corporation ("TMCC") and Goldman,
Sachs & Co., on its own behalf and as representative of the
several underwriters named therein. . . . . . . . . . . . . . . . . . . . . . . . . .
99.3 Receivables Purchase Agreement dated as of July 1, 1996,
between TMCC and TMCRC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
99.4 Pooling and Servicing Agreement dated as of July 1, 1996,
among TMCRC, TMCC and Bankers Trust Company . . . . . . . . . . . . . . . . . . . . .
</TABLE>
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Pursuant to the requirements of Section 12 of the Securities and
Exchange Act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
August 7, 1996 TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION
By: /s/ LLOYD MISTELE
----------------------------
Name: Lloyd Mistele
Title: President
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Execution Copy
TOYOTA AUTO RECEIVABLES 1996-A GRANTOR TRUST
$722,335,000 6.30% ASSET BACKED CERTIFICATES, CLASS A
$22,632,000 6.50% ASSET BACKED CERTIFICATES, CLASS B
UNDERWRITING AGREEMENT
July 17, 1996
Goldman, Sachs & Co.
Lehman Brothers Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
As Joint Global Coordinators,
Bookrunners and Representatives of the
several Underwriters
Dear Sirs:
Section 1. Introductory. Toyota Motor Credit Receivables
Corporation, a California corporation (the "Seller") and a wholly owned
subsidiary of Toyota Motor Credit Corporation, a California corporation
("TMCC"), proposes to sell to each of the several underwriters named in
Schedule I-A hereto (the "Class A Certificates Underwriters") $722,335,000.00
aggregate principal amount of 6.30% Asset Backed Certificates, Class A (the
"Class A Certificates") and to each of the several underwriters named in
Schedule I-B hereto (the "Class B Certificates Underwriters", and together with
the Class A Certificates Underwriters, the "Underwriters") $22,632,000.00
aggregate principal amount of 6.50% Asset Backed Certificates, Class B (the
"Class B Certificates", and, together with the Class A Certificates, the
"Subject Certificates") of the Toyota Auto Receivables 1996-A Grantor Trust
(the "Trust"). Goldman, Sachs & Co. and Lehman Brothers Inc. will act as
representatives for the Class A Certificates Underwriters and will be the sole
Class B Certificates Underwriters, and in such capacities shall herein be the
"Representatives". The Seller also proposes to sell, pursuant to a separate
private placement agreement dated the date hereof, $9,430,267.42 aggregate
principal amount of 7.35% Asset Backed Certificates, Class C (the "Class C
Certificates" and together with the Subject Certificates, the "Certificates")
of the Trust. Each Certificate will represent a fractional undivided interest
in the Trust. The assets of the Trust will include, among
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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 July 1, 1996 (the "Cutoff Date"). 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 July 1, 1996 between TMCC and the Seller. As of the Cutoff Date,
the Receivables had an aggregate principal balance of $754,397,267.42, the
Class A Certificates in the aggregate will represent an approximate 95.75%
undivided interest in the Trust, equal to $722,335,000.00 of the aggregate
principal balance of the Receivables, the Class B Certificates in the aggregate
will represent an approximate 3.00% undivided interest in the Trust, equal to
$22,632,000.00 of the aggregate principal balance of the Receivables and, the
Class C Certificates in the aggregate will represent an approximate 1.25%
undivided interest in the Trust, equal to $9,430,267.42 of the aggregate
principal balance of the Receivables, all as described in the Prospectus, as
defined below. The Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement" and, together with
the "Receivables Purchase Agreement, the "Basic Documents") to be dated as of
July 1, 1996, among the Seller, TMCC, as servicer (in such capacity, the
"Servicer"), and Bankers Trust Company, as trustee (the "Trustee").
This Underwriting Agreement shall hereinafter be referred to as "this
Agreement". Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Pooling and Servicing Agreement.
Section 2. Representations and Warranties of the Seller and TMCC.
(a) Each of the Seller and TMCC, jointly and severally, represents
and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-3 (No. 333-4336),
including a form of prospectus supplement, relating to the Subject
Certificates and a form of prospectus relating to each class of
securities to be registered under such registration statement (the
"Registered Securities") has been filed with the Securities and
Exchange Commission (the "Commission") and 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 such registration statement
(the "initial registration statement") has been declared effective,
either (i) any additional registration statement (the "additional
registration statement") relating to the Subject Certificates 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 Subject Certificates 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 Subject Certificates will have been duly
registered under the Act pursuant to the initial registration statement
and such additional registration statement. If the Seller does not
propose to amend the initial registration statement, any such
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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
the initial registration statement or, if filed prior to the execution
and delivery of this Agreement, the additional registration statement
means (A) if the Seller has advised the Representatives that it does
not propose to amend such registration statement, the date and time as
of which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, 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 Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and
time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If the Seller has advised the
Representatives that it proposes to file, but has not filed, an
additional registration statement prior to the execution and delivery
of this Agreement, "Effective Time" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof.
The initial registration statement, as amended at its Effective
Time, including all information (A) contained in the additional
registration statement (if any), (B) deemed to be a part of the 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 the
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 the initial registration statement incorporated by reference therein
and (B) deemed to be a part of the additional registration statement as
of its Effective Time pursuant to Rule 430A(b), is hereinafter referred
to as the "Additional Registration Statement". The Initial Registration
Statement and the Additional Registration Statement are hereinafter
referred to collectively as the "Registration Statements" and
individually as a "Registration Statement". The form of prospectus
supplement relating to the Subject Certificates (the "Prospectus
Supplement") and the form of prospectus (the "Base Prospectus")
relating to the Registered Securities (including the Subject
Certificates), as first filed with the Commission in connection with
the offering and sale of the Subject Certificates 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", "preliminary prospectus" or "Prospectus"
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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 such preliminary prospectus or the Prospectus, as
the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus 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 any preliminary prospectus or the Prospectus, as
the case may be, deemed to be incorporated therein by reference; any
reference in this Agreement to documents, financial statements and
schedules and other information which is "contained", "included",
"stated", "described" or "referred to" in the Registration Statement
or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such documents, financial statements
and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
(ii) (A) On the Effective Date of any Registration
Statement whose Effective Time is prior to the execution and delivery
of this Agreement, each such Registration Statement conformed, (B) on
the date of this Agreement each such Registration Statement conforms
and (C) on any related Effective Date subsequent to the date of this
Agreement, each such Registration Statement will conform, in all
material respects with the requirements of the Act and the rules and
regulations of the Commission promulgated under the Act (the "Rules
and Regulations"), and at such times did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the time of the filing of the Prospectus
pursuant to Rule 424(b) or, if no such filing is required, at the
Effective Date of the Additional Registration Statement that includes
the Prospectus, on the date of this Agreement and at the Closing Date
(as such term is defined in Section 3 hereof), the Prospectus will
conform in all material respects to the requirements of the Act and
the Rules and Regulations, and does not include, or will not include,
any untrue statement of a material fact, nor does the Prospectus omit,
nor will it omit, any material fact, necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The two immediately preceding sentences do
not apply to statements in or omissions from a Registration Statement
or the Prospectus based upon written information furnished to the
Seller by any Underwriter through the Representatives specifically
for use therein. 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,
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guarantee, lease financing agreement or similar agreement or instrument
under which the Seller or TMCC is a debtor or guarantor.
(iv) No consent, approval, authorization 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 and sale of the Certificates and compliance with the terms and
provisions of the Certificates 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 with the charter or by-laws of the Seller or TMCC, and each
of the Seller and TMCC has full corporate power and authority to enter
into this Agreement and the Basic Documents and to consummate the
transactions contemplated hereby and thereby.
(vi) This Agreement has been duly authorized, executed and
delivered by the Seller and TMCC.
(vii) The Seller has caused to be filed with the Commission on July
8, 1996 the Current Report on Form 8-K (as amended) with respect to the
Term Sheet dated July 8, 1996 relating to the Subject Certificates.
(b) As of the Closing Date, the representations and warranties of the
Seller and of TMCC in the Basic Documents will be true and correct, and the
Underwriters may rely on such representations and warranties as if they were
set forth herein in full.
Section 3. Purchase, Sale and Delivery of the Certificates. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Seller agrees to sell
to the several Underwriters, and the Class A Certificates Underwriters agree,
severally and not jointly, to purchase from the Seller, the respective
principal amounts of Class A Certificates set forth opposite the names of the
Class A Certificates Underwriters in Schedule I-A hereto and the Class B
Certificates Underwriters agree, severally and not jointly,
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to purchase from the Seller, the respective principal amounts of Class B
Certificates set forth opposite the names of the Class B Certificates
Underwriters in Schedule I-B hereto. The Subject Certificates are to be
purchased at a purchase price equal to (i) in the case of the Class A
Certificates, 99.797851% of the aggregate principal amount thereof plus accrued
interest at the Class A Pass Through Rate from (and including) July 20, 1996,
to (but excluding) the Closing Date and (ii) in the case of the Class B
Certificates, 99.642563% of the aggregate principal amount thereof plus accrued
interest at the Class B Pass Through Rate from (and including) July 20, 1996,
to (but excluding) the Closing Date.
The Class A Certificates will initially be represented by four
certificates representing $722,335,000 aggregate principal amount of Class A
Certificates registered in the name of Cede & Co., the nominee of The Depository
Trust Company, New York, New York ("DTC") (the "Class A DTC Certificates"). The
Class B Certificates will initially be represented by one certificate
representing $22,632,000 aggregate principal amount of Class B Certificates
registered in the name of Cede & Co., the nominee of DTC (the "Class B DTC
Certificates", and together with the Class A DTC Certificates, the "DTC
Certificates"). The interests of beneficial owners of the DTC Certificates will
be represented by book entries on the records of DTC and participating members
thereof. Definitive certificates evidencing the Subject Certificates will be
available only under the limited circumstances specified in the Pooling and
Servicing Agreement.
The Seller will deliver the DTC Certificates to the Representatives for
the respective securities accounts of the Underwriters at the office of DTC, 55
Water Street, 49th Floor, New York, New York 10004, against payment to the
Seller of the purchase price for the Certificates by wire transfer in
immediately available funds, at 10:00 a.m., New York time, on July 24, 1996, or
at such other time not later than seven full business days thereafter as the
Seller, TMCC and the Representatives determine, such time being herein referred
to as the "Closing Date". The certificates evidencing the DTC Certificates will
be made available for checking and packaging at the office of Bankers Trust
Company in The City of New York at least 24 hours prior to the Closing Date.
Section 4. Offering by the Underwriters. It is understood that the
several Underwriters propose to offer the Subject Certificates for sale to the
public as set forth in the Prospectus.
Section 5. Certain Agreements of the Seller and TMCC. Each of the
Seller and TMCC, as the case may be, jointly and severally, covenants and agrees
with the several Underwriters that:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Seller will file the Prospectus with
the Commission pursuant to and in accordance with Rule 424(b) not later
than the second business day following the execution and delivery of
this Agreement. The Seller will advise the Representatives promptly of
any such filing pursuant to Rule 424(b). If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement and an additional registration statement is necessary
to register a portion of the Subject Certificates under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Seller will file the Additional Registration Statement or
a post-effective amendment thereto, as the case may
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be, with the Commission pursuant to and in accordance with Rule 424(b) on or
prior to 10:00 p.m., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and distributed to
any Underwriter, or will make such filing at such later date as shall have been
consented to by the Underwriter.
(b) The Seller will advise the Representatives promptly of any
proposal to amend or supplement the initial registration statement or any
additional registration statement as filed or the related prospectus or any
Registration Statement or the Prospectus and will not effect any such amendment
or supplement without the consent of the Representatives; and the Seller will
also advise the Representatives promptly of the effectiveness of each
Registration Statement (if the related Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or supplement of
any Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of any Registration
Statement and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Subject
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
at any time to amend or supplement the Prospectus to comply with the Act, the
Seller will promptly notify the Representatives and will promptly prepare and
file, or cause to be prepared and filed, with the Commission an amendment or
supplement which will correct such statement or omission, or an amendment or
supplement which will effect such compliance. Neither the Representatives'
consent to, nor the delivery by the Representatives of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6 hereof.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Seller will cause the Trustee to make generally
available to the Certificateholders an earnings statement with respect to the
Trust covering a period of at least 12 months beginning after the Effective
Date of the Initial Registration Statement (or of any Additional Registration
Statement) that will satisfy the provisions of Section 11(a) of the Act. For
the purpose of the preceding sentence, "Availability Date" means the 45th day
after the end of the Seller's fourth fiscal quarter following the Seller's
fiscal quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Seller's fiscal year, "Availability
Date" means the 90th day after the end of such fourth fiscal quarter.
(e) The Seller will furnish to the Representatives copies of each
Registration Statement as originally filed and each amendment thereto (in each
case at least two of which will include all exhibits), and to the Underwriters
each related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Representatives may reasonably request. The Prospectus shall
be so furnished no later than 3:00 p.m., New York City time, on the second
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business day following the later of the execution and delivery of this
Agreement or the Effective Time of the Initial Registration Statement. All
other documents shall be furnished as soon as available. The Seller will pay
the expenses of printing and distributing to the Underwriters all such
documents.
(f) The Seller will arrange for the qualification of the Certificates
for sale under the securities laws of such jurisdictions in the United States
as the Representatives may reasonably designate and will continue such
qualifications in effect so long as required for the distribution of the
Subject Certificates, provided that the Seller shall not be obligated to
qualify to do business nor become subject to service of process generally, but
only to the extent required for such qualification, in any jurisdiction in
which it is not currently so qualified.
(g) The Seller will use its reasonable efforts to list the Class A
Certificates on the Luxembourg Stock Exchange and The Stock Exchange of Hong
Kong Limited, subject only to notice of issuance and for clearance of the Class
A Certificates.
(h) So long as any of the Certificates are outstanding, the Seller or
TMCC, as the case may be, will deliver or cause to be delivered to the
Representatives (i) copies of each report regarding the Certificates mailed to
Certificateholders pursuant to Section 4.10 of the Pooling and Servicing
Agreement, (ii) the annual statement as to compliance and the annual statement
of a firm of independent public accountants furnished to the Trustee pursuant
to Sections 3.11 and 3.12 of the Pooling and Servicing Agreement (as amended),
as soon as such statements are furnished to the Trustee, (iii) copies of all
documents required to be filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the
Commission thereunder and (iv) such other information concerning the Seller,
TMCC (relating to the Receivables, the servicing thereof or the ability of TMCC
to act as Servicer), the Certificates or the Trust as the Representatives may
reasonably request from time to time.
(i) The Seller and TMCC will pay all expenses incident to the
performance of their respective obligations under this Agreement, including
without limitation, (i) expenses incident to the printing, reproduction and
distribution of the Registration Statement as originally filed and each
amendment thereto, preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto), (ii) the fees and disbursements of the
Trustee and its counsel, (iii) the fees and disbursements of counsel to the
Seller and TMCC (as previously agreed) and the independent public accountants
of the Seller, (iv) the fees charged by Moody's Investors Service, Inc.
("Moody's") and Standard & Poor's Ratings Services ("Standard & Poor's", and
together with Moody's, the "Rating Agencies") in connection with the rating of
the Class A Certificates and the Class B Certificates, (v) the fees of DTC in
connection with the book-entry registration of the DTC Certificates, (vi) the
fees and expenses of listing the Class A Certificates on each of the
Luxembourg Stock Exchange and The Stock Exchange of Hong Kong Limited, and the
fees and expenses of any counsel or listing agent in connection therewith and
(vii) expenses incurred in distributing
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preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters, and will reimburse the Underwriters
for any expenses (including reasonable fees and disbursements of counsel)
incurred by the Underwriters in connection with the qualification of the
Certificates for sale under the securities laws of such jurisdictions in the
United States as the Representatives may designate pursuant to Section 5(f)
hereof.
(j) On or before the Closing Date, the Seller and TMCC shall cause
their respective books and records (including any computer records) relating to
the Receivables to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date neither the Seller nor TMCC, as
Servicer, shall take any action inconsistent with the Trust's ownership of such
Receivables, other than as permitted by the Pooling and Servicing Agreement or
as required by law.
(k) For a period of 14 days from the date hereof, neither the Seller,
TMCC nor any of their respective affiliates will, except with respect to the
private sale of the Class C Certificates, without the prior written consent of
the Representatives, directly or indirectly, offer, sell or contract to sell or
announce the offering of, in a public or private transaction, any other
collateralized securities similar to the Certificates.
(l) So long as any Certificates are outstanding, the Seller and TMCC
will cause to be delivered to the Representatives a reliance letter relating to
each Opinion of Counsel delivered to either Rating Agency by counsel to the
Seller or counsel to TMCC pursuant to either Basic Document.
(m) To the extent, if any, that the rating at the Closing Date
provided with respect to the Class A Certificates or the Class B Certificates by
either Rating Agency is conditional upon the furnishing of documents or the
taking of any other actions by the Seller or TMCC, the Seller or TMCC, as the
case may be, shall furnish such documents and take any such other actions as may
be required.
Section 6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Subject
Certificates will be subject to the accuracy of the respective representations
and warranties on the part of the Seller and TMCC herein, to the accuracy of
the statements of the Seller and TMCC made in any officers' certificates
pursuant to the provisions hereof, to the performance by the Seller and TMCC of
their respective obligations hereunder and to the following additional
conditions precedent:
(a) On (i) the date of this Agreement, the Representatives and the
Seller shall have received a letter, dated the date of delivery thereof (which,
if the Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, shall be on or prior to the date of
this Agreement or, if such Effective Time is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to such
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Effective Time), of Price Waterhouse LLP confirming that they are independent
public accountants with respect to the Seller and TMCC within the meaning of
the Act and the Rules and Regulations, with respect to certain information
contained in the Registration Statements [and the Prospectus] and substantially
in the form of the draft to which the Representatives previously have agreed
and otherwise in form and in substance satisfactory to the Representatives and
counsel for the Underwriters and (ii) the Closing Date, the Representatives and
the Seller shall have received a letter, dated as of the Closing Date, from
Price Waterhouse LLP, updating the letter referred to in clause (i) above, in
form and substance satisfactory to the Representatives and counsel for the
Underwriters. As used in this subsection, (i) "Registration Statements" shall
mean (A) the Initial Registration Statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, if the Effective Time of the Initial Registration Statement is
subsequent to the date of this Agreement, or (B) the Initial Registration
Statement and the additional registration statement as proposed to be filed or
as proposed to be amended by the post-effective amendment to be filed shortly
prior to its Effective Time, if the Effective Time is prior to the execution
and delivery of this Agreement but the Effective Time of the Additional
Registration Statement is subsequent to such execution and delivery, and (ii)
"Prospectus" shall mean any preliminary or final prospectus with respect to the
Subject Certificates, together with any supplement thereto.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 p.m., New York time, on the date of
this Agreement or such later date as shall have been consented to by the
Representatives. If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement, the Prospectus shall
have been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) hereof. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery of
this Agreement, such Effective Time shall have occurred not later than 10:00
p.m., New York time, on the date of this Agreement or, if earlier, the time the
Prospectus is printed and distributed to any Underwriter, or shall have
occurred at such later date as shall have been consented to by the Underwriter.
Prior to the Closing Date, no stop order suspending the effectiveness of any
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Seller or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any material adverse change in the condition,
financial or otherwise, or in the business affairs or business prospects of the
Seller or TMCC which, in the reasonable judgment of the Representatives (after
consultation with the Underwriters), materially impairs the investment quality
of the Class A Certificates or the Class B Certificates, or makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Class A Certificates or the Class B Certificates; (ii) any
downgrading in the rating of any debt securities of TMCC or Toyota Motor Sales,
U.S.A., Inc. or any of their direct or
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indirect subsidiaries by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any such debt securities (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, the Luxembourg Stock
Exchange or The Stock Exchange of Hong Kong Limited or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of TMCC on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by federal, California or New York authorities; or
(v) any outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by the United States Congress or any other
substantial national or international calamity or emergency if, in the
reasonable judgment of the Representatives (after consultation with the
Underwriters), the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Class A Certificates or the Class
B Certificates.
(d) The Representatives shall have received:
(1) The favorable opinion, dated the Closing Date, of Andrews &
Kurth L.L.P., special counsel for the Seller and TMCC, in form and scope
satisfactory to the Representatives, to the effect that:
(i) Each Basic Document has been duly authorized by all
necessary corporate action on the part of each of the Seller
and TMCC and has been executed and delivered by each of the
Seller and TMCC and, assuming the due authorization, execution
and delivery thereof by the Trustee, constitutes a legally
valid and binding obligation of each of the Seller and TMCC
enforceable in accordance with its respective terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws now or hereafter in effect affecting creditors'
rights generally and by the application of general principles
of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity), including, without limitation
(a) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair
dealing.
(ii) The Certificates have been duly and validly authorized
and, when executed and authenticated by the Trustee as
specified in the Pooling and Servicing Agreement and delivered
against payment of the consideration specified in this
Agreement in the case of the Subject Certificates and as
specified in the private placement agreement with respect to
the Class C Certificates, will be duly and validly issued and
outstanding and entitled to the benefits of the Pooling and
Servicing Agreement, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect affecting creditors' rights
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generally and by the application of general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in equity),
including, without limitation (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b) concepts
of materiality, reasonableness, good faith and fair dealing.
(iii) Neither the Seller nor the Trust is required to be registered
under the Investment Company Act of 1940, as amended.
(iv) With respect to Financed Vehicles in the State of California,
no filing or other action other than (A) the filing of a UCC financing
statement naming TMCC as transferor and the Seller as the transferee, and (B)
the filing of a UCC financing statement naming the Seller as the transferor and
the Trustee as transferee, which filings have been completed, is necessary to
perfect the transfer and assignment of TMCC's security interest in such
Financed Vehicles to the Seller, and the Seller's security interest in such
Financed Vehicles to the Trustee, respectively, and as a result of such
transfer and assignment and filing of such financing statements, the Trustee
has a first perfected security interest in such Financed Vehicles, except that
so long as TMCC is named as the legal owner and lien holder on a certificate of
title, TMCC has the ability to release the security interest in the Financed
Vehicle or to assign it to another party.
(v) The Trust will not be classified as an association taxable as
a corporation for federal or California income tax purposes and, instead, under
subpart E, part I of subchapter J of Chapter 1 of Subtitle A of the Internal
Revenue Code of 1986, as amended, the Trust will be treated as a grantor trust
and each holder of Subject Certificates will be treated as the owner of an
undivided interest in the income and corpus attributable to the Trust.
(vi) The statements in the Prospectus Supplement under
"Summary--Tax Status" and "--ERISA Considerations", and "ERISA Considerations",
and in the Base Prospectus under the "Summary--Tax Status" and "--ERISA
Considerations", "Certain Federal Income Tax Consequences", and "ERISA
Considerations", to the extent that they constitute matters of law or legal
conclusions with respect thereto, have been reviewed by such counsel and are
correct in all material respects.
(vii) This Agreement has been duly authorized by all necessary
corporate action on the part of each of the Seller and TMCC, and has been duly
executed and delivered by each of the Seller and TMCC.
(viii) No authorization, approval, consent or order of any court or
governmental agency or body is required, under the Federal law of the United
States or the laws of the State of California or the State of New York, for the
consummation by either the Seller or TMCC of the transactions contemplated in
this Agreement or
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the Basic Documents except such as may be required under the Act, the Rules and
Regulations or state securities laws, and those authorizations, approvals,
consents, orders and filings which have previously been obtained or made and
are in full force and effect as of the Closing Date; provided, that such
counsel need express no opinion as to state securities laws.
(ix) To such counsel's knowledge, there are no actions, proceedings
or investigations pending or threatened, to which the Seller or TMCC is a party
or of which any property of the Seller or TMCC is the subject required to be
disclosed in the Registration Statements, other than those disclosed therein,
(A) asserting the invalidity of this Agreement, any Basic Document or the
Certificates, (B) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement or the
Basic Documents, (C) that would, if determined adversely to TMCC or the Seller,
materially and adversely affect the performance by the Seller or TMCC of its
respective obligations under, or the validity or enforceability of, this
Agreement, either Basic Document or the Certificates or (D) seeking adversely
to affect the federal income tax attributes of the Subject Certificates as
described in the Base Prospectus under the heading "Certain Federal Income Tax
Consequences" or the California income tax attributes of the Certificates.
(x) At the time of execution and delivery of (A) the Receivables
Purchase Agreement, TMCC had the corporate power and corporate authority to
transfer the Receivables and such other property being transferred to the
Seller pursuant to the Receivables Purchase Agreement, and (B) the Pooling and
Servicing Agreement, the Seller had the corporate power and corporate authority
to transfer the Receivables and such other property being transferred to the
Trustee pursuant to the Pooling and Servicing Agreement and to cause the
transfer of the Subject Certificates to the Underwriters and the Class C
Certificates to the placement agents in respect thereof.
(xi) The Subject Certificates and the Basic Documents each conform
in all material respects with the respective descriptions thereof contained in
the Registration Statements and the Prospectus.
(xii) The statements in the Registration Statements and Base
Prospectus under the heading "Certain Legal Aspects of the Receivables", to the
extent that they constitute matters of law or legal conclusions are correct in
all material respects.
(xiii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
(xiv) The Receivables constitute "chattel paper" as such term is
defined in the California Uniform Commercial Code.
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(xv) The Initial Registration Statement and any Additional
Registration Statement filed with the Commission has been declared
effective under the Act, and, to such counsel's knowledge upon due
inquiry, no stop order suspending the effectiveness of a Registration
Statement has been issued under the Act or proceedings therefor
initiated or threatened by the Commission, and each Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of its respective effective or issue date, complied or
complies in all material respects with the requirements as to form of
the Act and the Rules and Regulations.
In addition, such counsel shall state that such counsel has
participated in conferences with the officers and other representatives of TMCC
and the Seller, representatives of the independent public accountants therefor
and the Underwriters, at which the contents of the Registration Statement and
the Prospectus and related matters were discussed and, although such counsel is
not passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained therein and have not made
any independent check or verification thereof, during the course of such
participation (relying as to factual matters as to materiality to a large
extent upon the statements of officers and other representatives of TMCC and
the Seller), such counsel does not believe that any Registration Statement, at
the related Effective Time, or any such amendment or supplement, as of its
effective date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, at the date thereof
(or any such amendment or supplement, as of its respective date) or at the
Closing Date included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made,not misleading; it being understood that such counsel need express no
opinion as to any financial statements or other financial or statistical data
contained in any Registration Statement or the Prospectus.
(2) The favorable opinion, dated the Closing Date, of Alan F.
Cohen, Esq., General Counsel of TMCC and counsel to the Seller, in form
and scope to the Representatives and their counsel, to the effect that:
(i) Each of the Seller and TMCC is a corporation duly
organized, existing and in good standing under the laws of the State
of California.
(ii) To such counsel's knowledge, each of the Seller and
TMCC is duly incorporated or qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which their respective ownership or lease of substantial properties
or the conduct of their respective businesses requires such
qualification and in which the failure to so qualify and be in good
standing would materially adversely affect their respective
businesses or financial condition.
(iii) To such counsel's knowledge (A) there are no legal or
governmental proceedings pending or threatened which are required to be
disclosed in the
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Registration Statements, other than those disclosed therein, (B) there
are no legal or governmental proceedings to which TMCC is a party or to
which any of its property is subject which are not described in TMCC's
Annual Report on Form 10-K for the year ended September 30, 1995, or its
Quarterly Reports for the quarters ended December 31, 1995 and March 31,
1996, which are required to be disclosed therein other than those
disclosed therein and (C) there are no pending legal or governmental
proceedings to which the Seller is a party or to which any of its
property is subject.
(iv) To such counsel's knowledge (A) no default exists in the
due performance or observance by TMCC of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a party or
by which it may be bound, which default would have a material adverse
effect on the financial condition, earnings, business affairs, business
prospects, properties or results of operations of TMCC and its
subsidiaries considered as one enterprise, and (B) other than this
Agreement, the purchase agreement relating to the sale of the Class C
Certificates and the Basic Documents and the corresponding agreements in
connection with the Toyota Auto Receivables 1993-A Grantor Trust and the
Toyota Auto Receivables 1995-A Grantor Trust, the Seller is not a party
to any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument.
(v) The transfer of the Receivables and the other property
of the Trust transferred by TMCC to the Seller pursuant to the
Receivables Purchase Agreement, the execution, delivery and performance
of the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (A) conflict with
or constitute a breach of, or default under, or result in the creation or
imposition of any Lien upon any property or assets of TMCC or any of its
subsidiaries pursuant to, any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument known to such counsel to
which TMCC or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of TMCC or
any of its subsidiaries is subject, (B) result in any violation of the
provisions of the charter or bylaws of TMCC or (C) to such counsel's
knowledge, result in any violation of any applicable law, administrative
regulation or administrative or court decree.
(vi) The transfer of the Receivables to the Trustee acting on
behalf of the Trust, the assignment of the security interest of the
Seller in the Financed Vehicles, the issuance and sale of the
Certificates, and the execution and delivery of this Agreement, the Basic
Documents and the Certificates, and the consummation of the transactions
contemplated herein and therein will not (A) conflict with or constitute
a breach of, or default under, or result in the creation or imposition of
any Lien upon any property or assets of the Seller pursuant to, any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Seller is a party or by which it may be
bound, or to which any of the property or assets of the
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Seller is subject, (B) result in any violation of the provisions of the
charter or bylaws of the Seller or (C) to such counsel's knowledge,
result in any violation of any applicable law, administrative regulation
or administrative or court decree.
(vii) Each of the Seller and TMCC has obtained all
necessary licenses and approvals under the federal law of the United
States and the laws of the State of California to conduct their
respective businesses in which the failure to obtain such licenses and
approvals would render any Receivable or any other material part of the
corpus of the Trust unenforceable or would materially and adversely
affect the ability of either the Seller or TMCC to perform any of their
respective obligations under, or the enforceability of, either Basic
Document.
(viii) Such counsel is familiar with the standard operating
procedures of TMCC relating to the acquisition by TMCC of a first
perfected security interest in the automobiles and/or light duty trucks
financed by the retail installment sale contracts purchased by TMCC in
the ordinary course of its business and relating to the sale to TMCC of
such contracts and such security interests in the automobiles or light
duty trucks financed thereby in the ordinary course of its business.
Assuming that such standard procedures are followed with respect to the
perfection of security interests in the Financed Vehicles (and such
counsel has no reason to believe that TMCC has not or will not continue
to follow its standard procedures in connection with the perfection of
first perfected security interests in the Financed Vehicles), TMCC has
acquired a first perfected security interest in the Financed Vehicles.
In connection with the preparation of the Registration Statement and the
Prospectus, such counsel notes that Andrews & Kurth L.L.P., in its capacity as
counsel with respect to the transaction, has had primary drafting responsibility
for the Registration Statement and the Prospectus, including the documents
incorporated therein and the documents and agreements described therein, and has
given substantive attention thereto and neither such counsel nor members of such
counsel's staff have had substantive responsibility for the drafting or review
of the Registration Statement or Prospectus. Such counsel or members of such
counsel's staff have participated in conferences with the officers and other
representatives of TMCC and the Seller, representatives of the independent
public accountants therefor and the Underwriters, at which the contents of the
Registration Statement and the Prospectus and related matters were discussed,
but such counsel is not passing upon, and does not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained therein
and neither such counsel nor members of such counsel's staff has made any
independent check or verification thereof. Based upon the foregoing, such
counsel does not believe that any Registration Statement, at the related
Effective Time, or any such amendment or supplement, as of its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, at the date thereof (or any such
amendment or supplement, as of its respective date) or at the Closing Date
included or includes an untrue statement of a material fact or omitted or omits
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to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel need not express a belief
as to any financial statements or other financial or statistical data
contained in any Registration Statement or the Prospectus.
(3) The favorable opinions, each dated the Closing Date, of Venable,
Baetjer, Howard & Civiletti, LLP, special counsel to the Seller and TMCC
with respect to the laws of the States of Maryland and Virginia, in form
and scope satisfactory to the Representatives and their counsel, to the
effect that the blank forms of contracts identified and reviewed by them
and attached to such opinion comply, or complied when in use, with all
applicable provisions of the law of such state and the regulations
promulgated thereunder regarding retail installment sales of motor
vehicles.
(4) The favorable opinion, dated the Closing Date, of Sheppard,
Mullin, Richter & Hampton, special California counsel to the Seller and
TMCC, in form and scope satisfactory to the Representatives and their
counsel, to the effect that, assuming the due authorization, execution and
delivery thereof by the parties thereto, each of the Receivables in the
form attached to such opinion constitutes the valid, binding and
enforceable agreement of the parties thereto; and such Receivables comply
as to content and form with all applicable state laws and federal
disclosure laws relating to consumer credit, including without limitation,
consumer protection laws.
(5) Reliance letters relating to each opinion rendered to either
Rating Agency by (A) Andrews & Kurth L.L.P and (B) Alan F. Cohen, Esq.
(6) The favorable opinion, dated the Closing Date, of counsel to
the Trustee, in form and scope satisfactory to the Representatives and
counsel for the Underwriters, to the effect that:
(i) The Trustee is a New York banking corporation duly
organized and validly existing under the laws of the State of New
York, and is duly authorized and empowered to exercise trust powers
under applicable law.
(ii) The Trustee has full power and authority to execute,
deliver and perform its obligations under the Pooling and Servicing
Agreement and has taken all necessary action to authorize the
execution, delivery and performance of its obligations under the
Pooling and Servicing Agreement.
(iii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee, and constitutes a
legal, valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, except that certain
of such obligations may be exercisable solely against the estate of
the Trust and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation or
other similar laws applicable
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to New York banking corporations affecting the enforcement of
creditors' rights generally, and by general principles of equity,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(iv) The Certificates have been duly executed, authenticated
and delivered by the Trustee in accordance with the terms of the
Pooling and Servicing Agreement.
(v) The execution, delivery and performance by the Trustee
of the Pooling and Servicing Agreement shall not (a) violate any
provision of any law governing the banking or trust powers of the
Trustee or, to the best knowledge of such counsel, any order, writ,
judgment or decree of any court, arbitrator or governmental authority
applicable to the Trustee or any of its assets, (b) shall not violate
any provision of the corporate charter or by-laws of the Trustee and
(c) to the best of such counsel's knowledge, violate any material
provision of, constitute, with or without notice or lapse of time, a
material default under, or result in the creation or imposition of any
lien on any properties of the Trust pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which
the Trustee is a party.
(vi) The execution, delivery and performance by the Trustee
of the Pooling and Servicing Agreement shall not require the
authorization, consent or approval of, the giving of notice to, the
filing or registration with or the taking of any other action in
respect of, any governmental authority or agency regulating the banking
or corporate trust activities of the Trustee.
(7) The favorable opinion of Andrews & Kurth L.L.P., counsel for the
Underwriters, dated the Closing Date, with respect to the existence of the
Seller and TMCC, the validity of the Certificates and such other related
matters as the Representatives shall request and the Seller and TMCC shall
have furnished or caused to be furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon
such matters.
(e) The Representatives shall have received a certificate, dated the
Closing Date, signed by the President or any Vice President and a principal
financial or accounting officer of (i) the Seller in which such officers shall
state that, to the best of their knowledge after reasonable investigation, (A)
the representations and warranties of the Seller in this Agreement are true and
correct, (B) the Seller has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, (C) no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the best of their knowledge, are contemplated by the
Commission, (D) the Additional Registration Statement, if any, satisfying the
requirements of Rule 462(b)(1) and Rule 462(b)(3) was filed in
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accordance with Rule 462(b) (including payment of the applicable filing
fee in accordance with Rule 111(a) or Rule 111(b) under the Act) prior
to the time the Prospectus was printed or distributed to the
Underwriter and (E) subsequent to the date of this Agreement, there has
been no material adverse change in the condition, financial or
otherwise, or in the business affairs or business prospects of the
Seller except as set forth or contemplated in the Prospectus, and (ii)
TMCC in which such officers shall state that, to the best of their
knowledge after reasonable investigation, (A) the representations and
warranties of TMCC in this Agreement are true and correct, (B) TMCC has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder and (C) subsequent to the date
of this Agreement there has been no material adverse change in the
condition, financial or otherwise, or in the business affairs or
business prospects of TMCC which would materially and adversely affect
the performance by TMCC of its obligations under this Agreement or the
Basic Documents.
(f) The Class A Certificates shall be rated "Aaa" by Moody's and "AAA"
by Standard & Poor's.
(g) The Class B Certificates shall be rated at least "A3" by Moody's
and at least "A-" by Standard & Poor's.
(h) The Class C Certificates are issued simultaneously with the
issuance of the Subject Certificates.
Section 7. Indemnification and Contribution.
(a) The Seller and TMCC will, jointly and severally, indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that neither the Seller nor TMCC will be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Seller by any Underwriter through the Representatives specifically for use
therein.
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless each of the Seller and TMCC against any losses, claims,
damages or liabilities to which the Seller or TMCC may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
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liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Seller by such Underwriter through the Representatives specifically for
use therein, and will reimburse any legal or other expenses reasonably incurred
by the Seller and TMCC in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Seller and TMCC on the one hand and the Class A Certificates
Underwriters or the Class B Certificates Underwriters, as applicable, on the
other hand, from the offering of the Subject Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Seller and
TMCC on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Seller and TMCC on the one hand and the Class
A Certificates Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Seller bear to the total underwriting discounts and
commissions received by the Class A Certificates Underwriters, and the relative
benefits received by the Seller and TMCC on the one hand and the Class B
Certificates Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from
20
<PAGE> 21
the offering (before deducting expenses) received by the Seller bear to the
total underwriting discounts and commissions received by the Class B
Certificates Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Seller or TMCC or the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Subject Certificates
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Seller and TMCC under this Section
shall be in addition to any liability that the Seller or TMCC may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to any
liability that the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Seller, to each
officer of the Seller who has signed any Registration Statement and to each
person, if any, who controls the Seller or TMCC within the meaning of the Act.
Section 8. Default of Underwriters. If any Class A Certificates
Underwriter or Underwriters default in their obligations to purchase Subject
Certificates hereunder and the aggregate principal amount of Class A
Certificates (in the case of the Class A Certificates Underwriters), that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of the Class A Certificates, and the
aggregate principal amount of Class B Certificates (in the case of the Class B
Certificates Underwriters) that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of Class B Certificates, the Representatives may make arrangements satisfactory
to the Seller and TMCC for the purchase of such Class A Certificates or the
Class B Certificates, as the case may be, by other persons, including any of
the Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Class A Certificates Underwriters shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the Class
A Certificates, and the non-defaulting Class B Certificates Underwriters shall
be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Class B Certificates, in each case that such
defaulting Underwriters agreed but failed to purchase. If any such default or
defaults occur and such default or defaults exceed 10% of the total principal
amount of the Class A Certificates or the Class B Certificates, as the case may
be, and arrangements satisfactory to the Seller and TMCC for the
21
<PAGE> 22
purchase of such Subject Certificates by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Seller or TMCC, except as
provided in Section 9 hereof. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
Section 9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller and TMCC or their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation or statement
as to the results thereof, made by or on behalf of any Underwriter, the Seller,
TMCC or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Subject
Certificates. If this Agreement is terminated pursuant to Section 8 hereof or
if for any reason the purchase of the Subject Certificates by the Underwriters
is not consummated, the Seller and TMCC shall remain responsible for the
expenses to be paid or reimbursed by the Seller and TMCC pursuant to Section
5(h) hereof and the respective obligations of the Seller, TMCC and the
Underwriters pursuant to Section 7 hereof shall remain in effect. If the
purchase of the Subject Certificates by the Underwriters is not consummated for
any reason other than solely because of the termination of this Agreement
pursuant to Section 8 hereof or the occurrence of any event specified in clause
(iii), (iv) or (v) of Section 6(c) hereof, the Seller and TMCC will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by it in connection with the
offering of the Subject Certificates.
Section 10. Notices. All communications hereunder will be in writing
and, if sent to the Representatives or the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the Representatives c/o Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, Attention: Asset-Backed
Syndicate and to Lehman Brothers Inc., 3 World Financial Center, 200 Vesey
Street, New York, New York 10285, Attention Fixed Income Syndicate; if sent to
the Seller, will be mailed, delivered or telegraphed and confirmed to it at
Toyota Motor Credit Receivables Corporation, 19001 South Western Avenue,
Torrance, California 90501, Attention: Lloyd Mistele -- President; or if sent
to TMCC, will be mailed, delivered or telegraphed and confirmed to it at Toyota
Motor Credit Corporation, 19001 South Western Avenue, Torrance, California
90501, Attention: Wolfgang Jahn -- Senior Vice President and General Manager.
Notwithstanding the foregoing, any notice to an Underwriter pursuant to Section
7 hereof will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
Section 11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
Section 12. Representation of Underwriters. The Representatives will
act for the several Underwriters in connection with the transactions described
in this Agreement, and any action taken by the Representatives under this
Agreement will be binding upon all the Underwriters.
22
<PAGE> 23
Section 13. Representations and Warranties of Underwriters. With
respect to any offers or sales of the Subject Certificates outside of the
United States (and solely with respect to any such offers and sales) each
Underwriter severally and not jointly makes the following representations and
warranties:
(a) Each Underwriter represents and agrees that it will comply
with all applicable laws and regulations in each jurisdiction in which it
purchases, offers or sells Subject Certificates 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 Subject
Certificates under the laws and regulations in force in any jurisdiction to
which it is subject or in which it makes such purchases, offers or sales and
neither the Seller or TMCC shall have any responsibility therefor;
(b) No action has been or will be taken by such Underwriter that
would permit a public offering of the Subject Certificates or possession or
distribution of any offering material in relation to the Subject Certificates
in any jurisdiction where action for that purpose is required unless the Seller
or TMCC has agreed to such actions and such actions have been taken;
(c) Each Underwriter represents and agrees that it will not offer,
sell or deliver any of the Subject Certificates or distribute any such offering
material in or from any jurisdiction except under circumstances which will
result in compliance with applicable laws and regulations and which will not
impose any obligation on the Seller or TMCC or the Underwriters;
(d) Such Underwriter acknowledges that it is not authorized to
give any information or make any representations in relation to the Subject
Certificates other than those contained or incorporated by reference in the
Prospectus for the Subject Certificates and such additional information, if
any, as the Seller or TMCC shall, in writing, provide to and authorize such
Underwriter so to use and distribute to actual and potential purchasers of
Subject Certificates;
(e) Each Underwriter represents and agrees that it has not,
directly or indirectly, offered or sold and will not, directly or indirectly,
offer or sell in Hong Kong, by means of any document, any Subject Certificates
other than to persons whose ordinary business it is to buy or sell shares or
debentures, whether as principal or agent, or in circumstances which do not
constitute an offer to the public within the meaning of the Companies Ordinance
(Cap. 32) of Hong Kong. Each Underwriter further represents and agrees that,
unless it is a person who is permitted to do so under the securities laws of
Hong Kong, it has not issued, or had in its possession for the purposes of
issuing, and it will not issue, or have in its possession for the purposes of
issuing, any advertisement, invitation or document relating to Subject
Certificates other than with respect to Subject Certificates intended to be
disposed of to persons outside Hong Kong or to persons whose business involves
the acquisition, or disposal or holding of securities, whether as principal or
agent;
(f) Each Underwriter has not offered or sold and will not offer
or sell any Subject Certificates to persons in the United Kingdom prior to
admission of such Securities to listing in accordance with Part IV of the
Financial Services Act 1986 ("FSA") except to persons whose
23
<PAGE> 24
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 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 or the FSA;
(g) Each Underwriter has complied and will comply with all
applicable provisions of the FSA with respect to anything done by such
Underwriter in relation to the Subject Certificates in, from or otherwise
involving the United Kingdom; and
(h) Each Underwriter will have only issued or passed on and will
only issue or pass on in the United Kingdom any document received by us in
connection with the issue of the Securities, other than any document which
consists of or any part of listing particulars, supplementary listing
particulars or any document required or permitted to be published by listing
rules under Part IV of the FSA, to a person who is of a kind described in
Article 11(3) of the FSA (Investment Advertisements) (Exemptions) Order 1995 or
is a person to whom such document may otherwise lawfully be issued or passed
on.
Section 14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same Agreement.
Section 15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
24
<PAGE> 25
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Seller and TMCC and
the Underwriters in accordance with its terms.
Very truly yours,
TOYOTA MOTOR CREDIT
RECEIVABLES CORPORATION
By: /s/ Lloyd Mistele
---------------------------------
Name: Lloyd Mistele
Title: President
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ Wolfgang Jahn
---------------------------------
Name: Wolfgang Jahn
Title: Senior Vice President and
General Manager
The foregoing Underwriting
Agreement is hereby confirmed
and accepted, as of the date
first above written:
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
As Representatives of the
several Underwriters
By: GOLDMAN, SACHS & CO.
/s/ Goldman, Sachs & Co.
- -------------------------------------
Goldman, Sachs & Co.
Acting on behalf of themselves
and as the Representatives of
the several Underwriters.
25
<PAGE> 26
Schedule I-A
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Class A Certificates
----------- --------------------
<S> <C>
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $281,167,500
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281,167,500
CS First Boston Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,000,000
Merrill Lynch, Pierce, Fenner
& Smith Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,000,000
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,000,000
Chase Securities Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000,000
First Chicago Capital Markets, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000,000
J.P. Morgan & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000,000
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000,000
Nomura International plc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000,000
SBC Warburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000,000
UBS Securities LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000,000
------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $722,335,000
============
</TABLE>
26
<PAGE> 27
Schedule I-B
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Class B Certificates
----------- --------------------
<S> <C>
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $11,316,000
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $11,316,000
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $22,632,000
===========
</TABLE>
27
<PAGE> 1
Final
RECEIVABLES PURCHASE AGREEMENT
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
and
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
as Purchaser
Dated as of July 1, 1996
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.02. Representations and Warranties of the Seller and the Purchaser . . . . . . . . . . . . . . . . . . 4
Section 2.03. Representations and Warranties of the Seller as to the Receivables . . . . . . . . . . . . . . . . 6
Section 2.04. Covenants of the Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE THREE
PAYMENT OF RECEIVABLES PURCHASE PRICE
Section 3.01. Payment of Receivables Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE FOUR
TERMINATION
Section 4.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.02. Protection of Right, Title and Interest to Receivables . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.03. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.05. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.06. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.07. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.08. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Section 5.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.10. Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.11. Merger and Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.12. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.14. Merger or Consolidation of, or Assumption of the Obligations of,
the Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Schedule A - Schedule of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
</TABLE>
ii
<PAGE> 4
RECEIVABLES PURCHASE AGREEMENT, dated as of July 1, 1996, between
Toyota Motor Credit Corporation, a California corporation, as seller, and
Toyota Motor Credit Receivables Corporation, a California corporation, as
purchaser.
In consideration of the premises and mutual agreements herein
contained, each party agrees as follows for the benefit of the other party and
for the benefit of the 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.
"Closing Date" shall mean July 24, 1996.
"Cutoff Date" shall mean July 1, 1996.
"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.
"Pooling and Servicing Agreement" shall mean the Pooling and Servicing
Agreement dated as of July 1, 1996 by and among Toyota Motor Credit Receivables
Corporation, as seller, Toyota Motor Credit Corporation, as servicer, and the
Trustee.
"Purchaser" shall mean Toyota Motor Credit Receivables Corporation, in
its capacity as purchaser of the Receivables under this Agreement, and its
successors and assigns.
"Receivable" means any retail installment sale contract executed by an
Obligor in respect of a Financed Vehicle, and all proceeds thereof and payments
thereunder, which Receivable shall be identified in the Schedule of
Receivables.
"Receivables Purchase Price" shall mean $777,853,078.74.
"Released Administrative Amount" means, with respect to a Distribution
Date and to an Administrative Receivable, the Deferred Prepayment, if any, for
such Administrative Receivable.
1
<PAGE> 5
"Released Warranty Amount" means, with respect to a Distribution Date
and to a Warranty Receivable, the Deferred Prepayment, if any, for such
Warranty Receivable.
"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 that is
electronically stored on the disk attached as Schedule A hereto.
"Trustee" shall mean Bankers Trust Company, as trustee under the
Pooling and Servicing Agreement, or any successor trustee thereunder.
"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 Pooling and
Servicing Agreement.
(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;
2
<PAGE> 6
(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 by or on behalf of the Trustee; and
(vi) all proceeds of the foregoing.
(b) In connection with the foregoing conveyance, the
Seller agrees to record and file, 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.
The parties hereto intend that the conveyance hereunder be a sale. In
the event that the conveyance hereunder is not for any reason considered a
sale, all filings described in the foregoing paragraph shall give the Purchaser
a first priority perfected security interest in, to and under the Receivables,
other property conveyed hereunder and all proceeds of any of the foregoing and
that this Agreement constitute a security agreement under applicable law.
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.
3
<PAGE> 7
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.
(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
this Agreement); 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.
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(vi) No Proceedings. There is no action, suit or
proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or to the Seller's
knowledge, threatened, against or affecting the Seller: (i)
asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely
effect the performance by the Seller of its obligations under,
or the validity or enforceability of, this Agreement.
(b) The Purchaser hereby represents and warrants to the
Seller as of the date of this Agreement and the Closing Date
that:
(i) Organization and Good Standing. The
Purchaser shall have been duly organized and shall be validly
existing as a corporation in good standing under the laws of
the State of California, and has corporate power and authority
to own its properties and to conduct its business as such
properties shall be currently owned and such business is
presently conducted, and had at all relevant times, and shall
now have, corporate power, authority and legal right to
acquire and own the Receivables.
(ii) Due Qualification. The Purchaser shall be
duly qualified to do business as a foreign corporation in good
standing, and shall have obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease
of property or the conduct of its business shall require such
qualifications.
(iii) Power and Authority. The Purchaser shall
have the corporate power and authority to execute and deliver
this Agreement and to carry out its terms; and the execution,
delivery and performance of this Agreement shall have been
duly authorized by the Purchaser by all necessary corporate
action.
(iv) Binding Obligation. This Agreement shall
constitute a legal, valid and binding obligation of the
Purchaser enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
creditors' rights generally or by general principles of
equity.
(v) No Violation. The consummation of the
transactions contemplated by this Agreement and the
fulfillment of the terms hereof shall not conflict with,
result in any breach of any of the terms and provisions of,
nor constitute (with or without notice or lapse of time) a
default under, the articles of incorporation or bylaws of the
Purchaser, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice
or lapse of time) a default under, any indenture, agreement or
other instrument to which the Purchaser is a party or by which
it shall be bound; nor result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other than
this Agreement); 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
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governmental instrumentality having jurisdiction over the
Purchaser or its properties; which breach, default, conflict,
Lien or violation would have a material adverse affect on the
earnings, business affairs or business prospects of the
Purchaser.
(vi) No Proceedings. There is no action, suit or
proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or to the Purchaser's
knowledge, threatened, against or affecting the Purchaser:
(i) asserting the invalidity of this Agreement, (ii) seeking
to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely
affect the performance by the Purchaser of its obligations
under, or the validity or enforceability of, this Agreement.
(c) The representations and warranties set forth in this
Section shall survive the sale of the Receivables by the Seller to the
Purchaser pursuant to this Agreement and the sale of the Receivables
by the Purchaser to the Trust pursuant to the Pooling and Servicing
Agreement. Upon discovery by the Seller, the Purchaser or the 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 level Monthly Payments
(provided that the payment in the first or last month in the
life of the Receivable may be minimally different from the
level payment) that fully amortize the Amount Financed by
maturity and provide for a finance charge or yield interest at
its APR, in either case calculated based on the Rule of 78s,
the simple interest method or the actuarial method, (D) shall
contain customary and enforceable provisions such that the
rights and remedies of the holder thereof shall be adequate
for realization against the collateral of the benefits of the
security and (E) shall provide for, in the event that such
Receivable is prepaid, a prepayment that fully pays the
Principal Balance and includes accrued but unpaid interest.
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(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 Certificateholders shall have been
utilized in selecting the Receivables.
(iii) Compliance with Law. Each Receivable and
each sale of the related Financed Vehicle shall have complied
at the time it was originated or made, and shall comply at the
time of execution of this Agreement in all material respects
with all requirements of applicable federal, state and local
laws, and regulations thereunder, including usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Billing Act, the Fair Credit Reporting
Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the 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.
(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.
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(ix) Receivables in Force. No Receivable shall
have been satisfied, subordinated or rescinded, nor shall any
Financed Vehicle have been released in whole or in part from
the lien granted by the related Receivable.
(x) No Waivers. No provision of a Receivable
shall have been waived in such a manner that such Receivable
fails to meet all of the other representations and warranties
made by the Seller herein with respect thereto.
(xi) No Amendments. No Receivable shall have been
amended or modified in such a manner that the total number of
Scheduled Payments has been increased or that the related
Amount Financed has been increased or that such Receivable
fails to meet all of the other representations and warranties
made by the Seller herein with respect thereto.
(xii) No Defenses. No facts shall be known to the
Seller which would give rise to any right of rescission,
setoff, counterclaim or defense, nor shall the same have been
asserted or threatened, with respect to any Receivable.
(xiii) No Liens. To the knowledge of the Seller, no
liens or claims shall have been filed, 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.
(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. At the time of origination of
each Receivable, each Obligor was required under the terms of
such Receivable to obtain and maintain physical damage
insurance covering the related Financed Vehicle.
(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, except 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
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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. All filings (including UCC
filings) necessary in any jurisdiction to provide third
parties with notice of the transfer and assignment herein
contemplated, to perfect the sale of the receivables from the
Seller to the Purchaser and to give the Purchaser a first
priority perfected security interest in the Receivables shall
have been made.
(xix) One Original. There shall be only one
original executed copy of each Receivable.
(xx) Chattel Paper. Each Receivable constitutes
"chattel paper" as defined in the UCC.
(xxi) Additional Representations and Warranties.
(A) Each Receivable shall have an original number of scheduled
payments of not less than 12 months nor more than 72 months
and a remaining number of scheduled payments of not less than
4 months nor greater than 54 months; (B) each Receivable
provides for the payment of a finance charge based on an APR
ranging from 8.00% to 22.00%; (C) each Receivable shall have
had an original principal balance of not less than $1019.74
nor more than $50,000.00 and, as of the Cutoff Date, an unpaid
principal balance of not less than $259.63 and not more than
$45,497.21; (D) each Receivable was originated before May 13,
1996; (E) no Receivable was originated under a special
financing program; (F) no Receivable shall have a Scheduled
Payment that is more than 30 days past due as of the Cutoff
Date; and (G) no Financed Vehicle was subject to force-placed
insurance as of the Cutoff Date.
(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 Pooling and
Servicing Agreement . The Purchaser, the Seller or the 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 any Certificateholders in any Receivable.
(c) Repurchase of Receivables. In the event of a breach
of any representation or warranty set forth in Section 2.03(a) which
materially and adversely affects the interest of any
Certificateholders in any Receivable and unless the breach shall have
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been cured 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), the Seller shall repurchase such
Receivable. 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 shall be entitled to receive the
Released Warranty Amount. In the event that, as of the date of execution and
delivery of this Agreement, any Liens or claims shall have been filed,
including Liens for work, labor or materials relating to a Financed Vehicle,
that shall be liens prior to, or equal or coordinate with, the Lien granted by
the related Receivable (whether or not the Seller has knowledge thereof), and
such breach materially and adversely affects the interests of any
Certificateholders in such Receivable, the Seller shall repurchase such
Receivable on the terms and in the manner specified above. 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 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 sole remedy of the Purchaser with respect to a breach of the Seller's
representations and warranties pursuant to Section 2.03(a) or with respect to
the existence of any such Liens or claims shall be to require the Seller to
repurchase the related Receivables pursuant to this Section.
SECTION 2.04 Covenants of the Seller. The Seller hereby covenants
that:
(a) Security Interests. Except for the conveyances
hereunder, the Seller will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any
Lien on any Receivable, whether now existing or hereafter created, or
any interest therein, the Seller will immediately notify the Purchaser
of the existence of any Lien on any Receivable and, in the event that
the interests of any Certificateholders 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 Pooling and Servicing
Agreement (if other than the Seller) all payments received by the
Seller in respect of the Receivables as soon as
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practicable after receipt thereof by the Seller, from and after the
appointment of the Servicer as Servicer under the Pooling and
Servicing Agreement with respect to the Toyota Auto Receivables 1996-A
Grantor Trust.
(c) Conveyance of Receivables. The Seller covenants and
agrees that it will not convey, assign, exchange or otherwise transfer
the Receivables to any Person prior to the termination of this
Agreement pursuant to Article Four hereof.
(d) No Impairment. The Seller shall take no action, nor
omit to take any action, which would impair the rights of the
Purchaser in any Receivable, nor shall it, except as expressly
provided in this Agreement or the Pooling and Servicing Agreement,
reschedule, revise or defer payments due on any Receivable.
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) $746,709,506.83, the net cash
proceeds from the offer and sale by the Purchaser of the Certificates (less
amounts retained to pay expenses of the Purchaser and to fund the Reserve Fund
Initial Deposit), and (ii) $31,143,571.91 evidenced by an advance under a
non-recourse promissory subordinated 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 as provided in Article Ten of the Pooling and Servicing
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
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which may be inconsistent with any other provision herein, or to add
any other provision with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of
this Agreement or the Pooling and Servicing Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of
Counsel to the Purchaser delivered to the Trustee, adversely affect in
any material respect the interests of the Trust.
(b) This Agreement may also be amended from time to time
by the Purchaser and the Seller with the consent of the Trustee for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of
Counsel to the Purchaser delivered to the Trustee, adversely affect in
any material respect the interests of the Trust.
(c) The Seller shall provide written notice of any
amendment hereof to each Rating Agency promptly upon the execution
thereof.
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 Trustee shall cooperate fully with the Seller in connection with
the obligations set forth above and will execute any and all documents
reasonably required to fulfill the intent of this subsection.
(b) Within 30 days after the Seller makes any change in
its name, identity or corporate structure which would make any
financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of Section
9402(7) of the UCC as in effect in the applicable state, the Seller
shall give the Purchaser notice of any such change and shall execute
and file such financing statements or amendments as may be necessary
to continue the perfection of the Purchaser's security interest in the
Receivables and the proceeds thereof.
(c) The Seller will give the Purchaser prompt written
notice of any relocation of any office from which the Seller keeps
records concerning the Receivables or of its principal executive
office and whether, as a result of such
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relocation, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall
execute and file such financing statements or amendments as may be
necessary to continue the perfection of the interest of the Purchaser
in the Receivables and the proceeds thereof.
SECTION 5.03 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 5.04 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to (a) in the case of the Purchaser, to Toyota Motor Credit Receivables
Corporation, 19001 South Western Avenue, Torrance, California 90501, Attention:
President; (b) in the case of Toyota Motor Credit Corporation, 19001 South
Western Avenue, Torrance, California 90501, Attention: Senior Vice President;
and (c) in the case of the Trustee, to Bankers Trust Company, Four Albany
Street, New York, New York 10006, Attention: Corporate Trust; or, as to any of
such Persons, at such other address as shall be designated by such Person in a
written notice to the other Persons.
SECTION 5.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions and terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
SECTION 5.06 Assignment. This Agreement may not be assigned by the
Purchaser or the Seller except as contemplated by this Section and the Pooling
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 Trustee for the benefit of any
Certificateholders as provided in Section 2.01 of the Pooling and Servicing
Agreement, to which the Seller hereby expressly consents. The Seller agrees to
perform its obligations hereunder for the benefit of the Trust and that the
Trustee 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 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.
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SECTION 5.08 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Purchaser, the Trustee or the
Seller, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 5.09 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 5.10 Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties signatory hereto, and the
Trustee for the benefit of any Certificateholders, 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.
(a) Purchaser and Trust. The Seller shall indemnify and
hold harmless the Purchaser, the Trust and the Certificateholders from
and against any loss, liability, expense, damage or injury suffered or
sustained by reason of any acts, omissions or alleged acts or
omissions arising out of activities of the Seller pursuant to this
Agreement or as a result of the transactions contemplated hereby,
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 the Purchaser, the Trust or any Certificateholders if such
acts, omissions or alleged acts or omissions constitute negligence or
willful misconduct by the Purchaser or any Certificateholders.
(b) Trustee. The Seller shall indemnify, defend and hold
harmless the Trustee 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 the Trustee through the negligence, willful
misfeasance or bad faith of the Seller in the performance of its
duties under this
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Agreement or by reason of reckless disregard of its obligations and
duties under this Agreement.
SECTION 5.14 Merger or Consolidation of, or Assumption of the
Obligations of, the Seller.
(a) The Seller shall not consolidate with or merge into
any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) the corporation formed by such consolidation
or into which the Seller is merged or the Person which
acquires by conveyance or transfer the properties and assets
of the Seller substantially as an entirety shall be organized
and existing under the laws of the United States or any State
or the District of Columbia, and, if the Seller is not the
surviving entity, shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Purchaser
and the Trustee, in form reasonably satisfactory to the
Purchaser and the Trustee, the performance of every covenant
and obligation of the Seller hereunder and shall benefit from
all the rights granted to the Seller hereunder; and
(ii) the Seller shall have delivered to the
Purchaser and the 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.
15
<PAGE> 19
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/ Wolfgang Jahn
--------------------------------
Name: Wolfgang Jahn
Title: Senior Vice President and
General Manager
TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION,
as Purchaser
By: /s/ Lloyd Mistele
--------------------------------
Name: Lloyd Mistele
Title: President
ACCEPTED:
BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By: /s/ Lillian Peros
--------------------------------
Name: Lillian Peros
Title: Assistant Treasurer
16
<PAGE> 20
SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- originals on file at the offices
of the Seller, the Purchaser and the Trustee
A-1
<PAGE> 1
Final
POOLING AND SERVICING AGREEMENT
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
Seller
and
TOYOTA MOTOR CREDIT CORPORATION,
Servicer
and
BANKERS TRUST COMPANY
Trustee
Dated as of July 1, 1996
______________
TOYOTA AUTO RECEIVABLES 1996-A GRANTOR TRUST
______________
<PAGE> 2
TABLE OF CONTENTS
DEFINITIONS
<TABLE>
<S> <C> <C>
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO
CREATION OF TRUST; CONVEYANCE OF RECEIVABLES;
CUSTODY OF RECEIVABLE FILES
Section 2.01. Creation of Trust; Conveyance of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.02. Custody of Receivable Files. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.03. Acceptance by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.04. Representations and Warranties of Seller as to the Receivables . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.05. Repurchase of Receivables Upon Breach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.06. Duties of Servicer as Custodian. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.07. Instructions; Authority to Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.08. Indemnification of Custodian. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.09. Effective Period and Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.10. Usage of Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.11. Cutoff Date and Record Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.12. Section References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.13. Agent for Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE THREE
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01. Duties of Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.02. Collection of Receivable Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.03. Rebates on Full Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.04. Realization Upon Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.05. Maintenance of Physical Damage Insurance Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.06. Maintenance of Security Interests in Financed Vehicles. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3.07. Covenants of Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3.08. Purchase of Receivables Upon Breach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3.09. Total Servicing Fee; Payment of Certain Expenses by Servicer. . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3.10. Servicer's Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.11. Annual Statement as to Compliance; Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.12. Annual Accountants' Report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.13. Access to Certain Documentation and Information Regarding Receivables. . . . . . . . . . . . . . . . . . . . 34
Section 3.14. Amendments to Schedule of Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 3.15. Reports to Certificateholders and Rating Agencies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Collections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Application of Collections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Additional Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Distributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Reserve Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Net Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Statements to Certificateholder. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
THE CERTIFICATES
The Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Authentication and Delivery of Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Registration of Transfer and Exchange of Certificates.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Registration of Transfer and Exchange of Class B Certificates and Class C Certificates. . . . . . . . . . . . . . 50
Mutilated, Destroyed, Lost or Stolen Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Access to List of Certificateholders' Names and Addresses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Temporary Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Book-Entry Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Notices to Clearing Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Definitive Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
THE SELLER
Representations of Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Liability of Seller; Indemnities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Merger or Consolidation of, or Assumption of the Obligations of, Seller; Certain Limitations. . . . . . . . . . . . 57
Limitation on Liability of Seller and Others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Seller May Own Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
No Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
THE SERVICER
Representations of Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Liability of Servicer; Indemnities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Merger or Consolidation of, or Assumption of the Obligations of, the Servicer. . . . . . . . . . . . . . . . . . . 63
Limitation on Liability of Servicer and Others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
</TABLE>
iii
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<TABLE>
<S> <C>
Servicer Not to Resign. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
EVENTS OF DEFAULT
Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Consequences of an Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Trustee to Act; Appointment of Successor Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Notification to Certificateholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Repayment of Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
THE TRUSTEE
Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Trustee's Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Trustee's Assignment of Administrative Receivables and Warranty Receivables. . . . . . . . . . . . . . . . . . . . . . . . 69
Certain Matters Affecting the Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Limitation on Trustee's Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Trustee May Own Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Trustee's Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Indemnity of Trustee and Successor Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Eligibility Requirements for Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Resignation or Removal of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Successor Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Merger or Consolidation of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Appointment of Co-Trustee or Separate Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Representations and Warranties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Tax Returns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Trustee May Enforce Claims Without Possession of Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Suit for Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Rights of Certificateholders to Direct Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
TERMINATION
Termination of the Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Optional Purchase of All Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
MISCELLANEOUS PROVISIONS
Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Protection of Title to Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Limitation on Rights of Certificateholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Severability of Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
</TABLE>
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<TABLE>
<S> <C>
Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Certificates Nonassessable and Fully Paid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
No Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
EXHIBIT A Form of Servicer's Certificate Pursuant to
Section 3.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Trustee's Certificate Pursuant to
Section 9.02 or 9.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C Form of Class A Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D Form of Class B Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
EXHIBIT E Form of Class C Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
EXHIBIT F Form of Representation Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
EXHIBIT G Form of Letter of Representations to Depository . . . . . . . . . . . . . . . . . . . . . . . . G-1
</TABLE>
v
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Except as otherwise provided in this
Agreement, whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
"Accounts" means the Collection Account, the Payahead Account and the
Reserve Fund.
"Actual Payment" means, with respect to a Receivable and a Collection
Period, all payments received by the Servicer from or for the account of the
related Obligor on such Receivable during such Collection Period (and, in the
case of the first Collection Period, all payments received by the Servicer from
or for the account of such Obligor since the Cutoff Date through the last day
of such Collection Period), net of any Supplemental Servicing Fees attributable
to such Receivable. Actual Payments do not include Applied Payments Ahead.
"Actuarial Receivable" means any Receivable which provides for the
allocation of payments according to the "actuarial" method.
"Additional Agreements" shall have the meaning specified in Section
6.03(b)(ii)(C).
"Additional Trusts" shall have the meaning specified in Section
6.03(b)(ii)(C).
"Administrative Purchase Payment" means, with respect to a
Distribution Date and to (1) an Administrative Receivable which is a
Precomputed Receivable purchased by the Seller or the Servicer as of the end 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) an
amount equal to any reimbursement of Outstanding Advances made pursuant to
Section 4.04(b) with respect to such Receivable (plus all Outstanding Advances
made in respect of such Receivable, in the case of an Administrative Purchase
Payment made by the Seller) and (iii) all past due Scheduled Payments for which
an Advance has not been made, minus (b) any Rebate and (2) an Administrative
Receivable which is a Simple Interest Receivable purchased by the Seller or the
Servicer during the related Collection Period, the sum of (a) the unpaid
principal balance owed by the Obligor in respect of such Receivable plus (b)
interest on such unpaid principal balance at a rate equal to the sum of the
related Weighted Average Rate and the related Servicing Fee Rate to the last
day in the related Collection Period.
"Administrative Receivable" means a Receivable which the Servicer is
required to purchase pursuant to Section 3.02 or 3.08 or which the Seller or
the Servicer has elected to purchase pursuant to Section 10.02.
"Advance" means a Precomputed Advance or a Simple Interest Advance.
1
<PAGE> 7
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control," when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the term "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Net Losses" means, with respect to a Collection Period, an
amount equal to the aggregate Principal Balance of all Receivables that became
Defaulted Receivables during such Collection Period minus all Net Liquidation
Proceeds collected during such Collection Period with respect to Defaulted
Receivables.
"Agreement" means this Pooling and Servicing Agreement with respect to
the Toyota Auto Receivables 1996-A Grantor Trust among Toyota Motor Credit
Receivables Corporation, Toyota Motor Credit Corporation and the Trustee, as
the same may be amended or supplemented from time to time.
"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.
"Applicants" shall have the meaning specified in Section 5.07.
"Applied Payment Ahead" means, with respect to a Precomputed
Receivable and a Collection Period as to which (a) the Actual Payment is less
than the Scheduled Payment and (b) a Deferred Prepayment is on deposit in the
Payahead Account, an amount equal to the lesser of (i) such Deferred Prepayment
and (ii) the amount by which the Scheduled Payment exceeds the Actual Payment.
"Automobile Receivables" shall have the meaning specified in Section
6.03(b)(ii)(A).
"Available Interest" means, with respect to any Distribution Date, the
total of the following amounts allocable to interest received by the Servicer
on or in respect of the Receivables during the related Collection Period (in
the case of the Precomputed Receivables, computed in accordance with the
actuarial method and in the case of the Simple Interest Receivables, computed
in accordance with the simple interest method): (a) the sum of the interest
component of (i) all collections on or in respect of all Receivables other than
Defaulted Receivables (including Scheduled Surplus, Prepayment Surplus and the
interest portion of Applied Payments Ahead, but otherwise excluding Payments
Ahead), (ii) all Net Liquidation Proceeds, (iii) all Advances made by the
Servicer, (iv) all Warranty Purchase Payments and (v) all Administrative
Purchase Payments, less (b) the sum of all
2
<PAGE> 8
(i) amounts received on or in respect of a particular Receivable (other than a
Defaulted Receivable) to the extent of the aggregate Outstanding Interest
Advances in respect of such Receivable and (ii) Net Liquidation Proceeds with
respect to a particular Receivable to the extent of the aggregate Outstanding
Interest Advances in respect of such Receivable.
"Available Principal" means, with respect to any Distribution Date,
the total of the following amounts allocable to principal received by the
Servicer on or in respect of the Receivables during the related Collection
Period (in the case of the Precomputed Receivables, computed in accordance with
the actuarial method and in the case of the Simple Interest Receivables,
computed in accordance with the simple interest method): (a) the sum of the
principal component of all (i) collections on or in respect of all Receivables
other than Defaulted Receivables (including the principal portion of Applied
Payments Ahead but otherwise excluding Payments Ahead), (ii) Net Liquidation
Proceeds, (iii) Advances made by the Servicer, (iv) Warranty Purchase Payments,
and (v) Administrative Purchase Payments, less (b) an amount equal to all (i)
amounts received on or in respect of a particular Receivable (other than a
Defaulted Receivable) to the extent of the aggregate Outstanding Principal
Advances in respect of such Receivable, and (ii) Net Liquidation Proceeds with
respect to a particular Receivable to the extent of the aggregate Outstanding
Principal Advances in respect of such Receivable.
"Basic Servicing Fee" means the fee payable to the Servicer on each
Distribution Date, calculated pursuant to Section 3.09, for services rendered
during the related Collection Period, which shall be equal to one-twelfth of
the Servicing Fee Rate multiplied by the Pool Balance as of the first day of
the related Collection Period or, with respect to the first Distribution Date,
the Original Pool Balance.
"Book-Entry Certificates" means a beneficial interest in the Class A
Certificates, Class B Certificates or Class C Certificates, prior to the
authentication and delivery of fully registered certificates representing the
same, ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 5.10.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York or Los Angeles, California
are authorized or obligated by law, regulation, executive order or governmental
decree to be closed; provided, that, solely for purposes of identifying any
Distribution Date with respect to the making of payments on the Class A
Certificates in Luxembourg by a paying agent in Luxembourg, "Business Day"
shall also exclude any day on which banking institutions in Luxembourg are
authorized or obligated by law, regulation, governmental order or decree to be
closed, whether or not payments are made in any other city on Class A
Certificates on such date, but such date shall not be used for making any other
determination with respect to the Receivables or the Certificates of any Class.
"Certificate Register" means the register maintained pursuant to
Section 5.03.
"Certificateholder" or "Holder" means the Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving certain consents, waivers, requests or demands pursuant
to this Agreement, the interest evidenced by any Class A Certificate
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<PAGE> 9
registered in the name of the Seller or the Servicer, or any Person actually
known to a Responsible Officer of the Trustee to be controlling, controlled by
or under common control with the Seller or the Servicer, shall not be taken
into account in determining whether the requisite percentage necessary to
effect any such consent, waiver, request or demand shall have been obtained.
"Certificate Owner" means, with respect to a Book-Entry Certificate,
the Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
either case in accordance with the rules of such Clearing Agency) and shall
mean, with respect to a Definitive Certificate, the related Certificateholder.
"Certificate Registrar" means the Trustee unless a successor thereto
is appointed pursuant to Section 5.03. The Certificate Registrar initially
designates its offices at Four Albany Street, New York, New York 10006 as its
offices for purposes of Section 5.08.
"Certificates" means the Class A Certificates, the Class B
Certificates and the Class C Certificates.
"Charge-off Rate" means, with respect to a Collection Period, the
percentage equivalent of a fraction, the numerator of which is the Aggregate
Net Losses for such Collection Period, and the denominator of which is the
average of (i) the Pool Balance on the last day of the Collection Period
immediately preceding such Collection Period and (ii) the Pool Balance on the
last day of such Collection Period; such quotient is then multiplied by twelve
to arrive at an annualized percentage.
"Class" means all Certificates whose form is identical except for
variation in denomination, principal amount or owner.
"Class A Certificate" means one of the Certificates executed by the
Trustee on behalf of the Trust and authenticated by the Trustee in
substantially the form attached hereto as Exhibit C.
"Class A Certificate Balance" shall initially equal the Original Class
A Certificate Balance and, as of the close of business on any Distribution
Date, shall equal the Original Class A Certificate Balance, reduced by all
amounts previously distributed to Class A Certificateholders and allocable to
principal; provided, however, that on any Distribution Date on or after the
Distribution Date on which the Class B Certificate Balance and the Class C
Certificate Balance are reduced to zero, the Class A Certificate Balance on any
Distribution Date will equal the Pool Balance as of the last day of the related
Collection Period after all required distributions, deposits and withdrawals
have been made.
"Class A Distributable Amount" means, with respect to any Distribution
Date, the sum of the Class A Principal Distributable Amount and the Class A
Interest Distributable Amount.
"Class A Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class A Interest
Distributable Amount for such Distribution Date plus any outstanding Class A
Interest Carryover Shortfall from the immediately preceding Distribution Date
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<PAGE> 10
plus interest on such outstanding Class A Interest Carryover Shortfall, to the
extent permitted by law, at the Class A Pass Through Rate from and including
such immediately preceding Distribution Date to but excluding the current
Distribution Date, over (ii) the amount of interest distributed to Class A
Certificateholders on such current Distribution Date.
"Class A Interest Distributable Amount" means, with respect to any
Distribution Date, the product of one-twelfth of the Class A Pass Through Rate
and the Class A Certificate Balance as of the immediately preceding
Distribution Date (after giving effect to distributions of principal made on
such immediately preceding Distribution Date) or, in the case of the first
Distribution Date, the Original Class A Certificate Balance.
"Class A Pass Through Rate" means 6.30% per annum.
"Class A Percentage" means 95.7499492%.
"Class A Pool Factor" means, with respect to any Distribution Date, a
seven-digit decimal figure (rounded to the nearest one millionth place with 5
ten millionths being rounded up) equal to the Class A Certificate Balance as of
such Distribution Date divided by the Original Class A Certificate Balance.
"Class A Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class A Principal
Distributable Amount for such Distribution Date and any outstanding Class A
Principal Carryover Shortfall from the immediately preceding Distribution Date,
plus interest on such outstanding Class A Principal carryover shortfall, to the
extent permitted by law, at the Class A Pass Through Rate from such immediately
preceding Distribution Date through the current Distribution Date over (ii) the
amount of principal actually distributed to Class A Certificateholders on such
current Distribution Date.
"Class A Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A Percentage of the following amounts
(but not exceeding the Class A Certificate Balance as of such Distribution
Date): (i) in the case of Precomputed Receivables, the principal portion of all
Scheduled Payments due during the related Collection Period, computed in
accordance with the actuarial method, (ii) in the case of Simple Interest
Receivables, the principal portion of all Scheduled Payments actually received
during the related Collection Period, (iii) the principal portion of all
Prepayments received during such Collection Period (to the extent such amounts
are not included in clauses (i) and (ii) above), and (iv) the Principal Balance
of each Receivable that became an Administrative Receivable, a Warranty
Receivable or a Defaulted Receivable during such Collection Period (to the
extent such amounts are not included in clauses (i), (ii) and (iii) above). In
addition, with respect to the Final Scheduled Distribution Date or the
Distribution Date upon which all remaining Receivables are to be purchased
pursuant to Section 10.02, the Class A Principal Distributable Amount will
include the portion of such amount necessary (after giving effect to the other
amounts to be distributed to the Class A Certificateholders on such Final
Scheduled Distribution Date or Distribution Date and allocable to principal) to
reduce the Class A Certificate Balance to zero.
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"Class B Certificate" means any one of the Certificates executed by
the Trustee on behalf of the Trust and authenticated by the Trustee in
substantially the form attached hereto as Exhibit D.
"Class B Certificate Balance" shall initially equal the Original Class
B Certificate Balance and, as of the close of business on any Distribution
Date, shall equal the Original Class B Certificate Balance reduced by all
amounts previously distributed to Class B Certificateholders and allocable to
principal; provided, however, that on any Distribution Date on or after the
Distribution Date on which the Class C Certificate Balance is reduced to zero,
the Class B Certificate Balance will equal the excess of the Pool Balance as of
the last day of the related Collection Period over the Class A Certificate
Balance as of such Distribution Date after all required distributions, deposits
and withdrawals have been made.
"Class B Distributable Amount" means, with respect to any Distribution
Date, the sum of the Class B Principal Distributable Amount and the Class B
Interest Distributable Amount.
"Class B Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class B Interest
Distributable Amount for such Distribution Date plus any outstanding Class B
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class B Interest Carryover Shortfall, to the
extent permitted by law, at the Class B Pass Through Rate from and including
such immediately preceding Distribution Date to but excluding the current
Distribution Date, over (ii) the amount of interest distributed to Class B
Certificateholders on such current Distribution Date.
"Class B Interest Distributable Amount" means, with respect to any
Distribution Date, the product of one-twelfth of the Class B Pass Through Rate
and the Class B Certificate Balance as of the immediately preceding
Distribution Date (after giving effect to distributions of principal made on
such immediately preceding Distribution Date) or, in the case of the first
Distribution Date, the Original Class B Certificate Balance.
"Class B Pass Through Rate" means 6.50% per annum.
"Class B Percentage" means 3.0000109%.
"Class B Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class B Principal
Distributable Amount and any outstanding Class B Principal Carryover Shortfall
with respect to the immediately preceding Distribution Date, plus interest on
such outstanding Class B Principal Carryover Shortfall, to the extent permitted
by law, at the Class B Pass Through Rate from and including such immediately
preceding Distribution Date to but excluding the current Distribution Date over
(ii) the amount of principal distributed to Class B Certificateholders on such
current Distribution Date.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class B Percentage of the following amounts
(but not exceeding the Class B Certificate Balance as of such Distribution
Date): (i) in the case of Precomputed Receivables, the principal portion of all
Scheduled Payments due during the related Collection Period, computed in
accordance
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<PAGE> 12
with the actuarial method, (ii) in the case of Simple Interest Receivables, the
principal portion of all Scheduled Payments actually received during the
related Collection Period, (iii) the principal portion of all Prepayments
received during such Collection Period (to the extent such amounts are not
included in clauses (i) and (ii) above), and (iv) the Principal Balance of each
Receivable that became an Administrative Receivable, a Warranty Receivable or a
Defaulted Receivable during such Collection Period (to the extent such amounts
are not included in clauses (i), (ii) and (iii) above). In addition, with
respect to the Final Scheduled Distribution Date or the Distribution Date upon
which all remaining Receivables are to be purchased pursuant to Section 10.02,
the Class B Principal Distributable Amount will include the portion of such
amount necessary (after giving effect to the other amounts to be distributed to
the Class B Certificateholders on such Final Scheduled Distribution Date or
Distribution Date and allocable to principal) to reduce the Class B Certificate
Balance to zero.
"Class C Certificate" means any one of the Certificates executed by
the Trustee on behalf of the Trust and authenticated by the Trustee in
substantially the form attached hereto as Exhibit E.
"Class C Certificate Balance" shall initially equal the Original Class
C Certificate Balance and, as of the close of business on any Distribution
Date, shall equal the amount by which the Pool Balance as of the last day of
the related Collection Period exceeds the sum of the Class A Certificate
Balance and the Class B Certificate Balance on such Distribution Date after all
required distributions, deposits and withdrawals have been made.
"Class C Distributable Amount" means, with respect to any Distribution
Date, the sum of the Class C Principal Distributable Amount and the Class C
Interest Distributable Amount.
"Class C Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class C Interest
Distributable Amount for such Distribution Date plus any outstanding Class C
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class C Interest Carryover Shortfall, to the
extent permitted by law, at the Class C Pass Through Rate from and including
such immediately preceding Distribution Date to but excluding the current
Distribution Date, over (ii) the amount of interest distributed to Class C
Certificateholders on such current Distribution Date.
"Class C Interest Distributable Amount" means, with respect to any
Distribution Date, the product of one-twelfth of the Class C Pass Through Rate
and the Class C Certificate Balance as of the immediately preceding
Distribution Date (after giving effect to distributions of principal made on
such immediately preceding Distribution Date) or, in the case of the first
Distribution Date, the Original Class C Certificate Balance.
"Class C Pass Through Rate" means 7.35% per annum.
"Class C Percentage" means 1.2500400%.
"Class C Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class C Principal
Distributable Amount and any outstanding Class C
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<PAGE> 13
Principal Carryover Shortfall with respect to the immediately preceding
Distribution Date, plus interest on such outstanding Class C Interest Carryover
Shortfall, to the extent permitted by law, at the Class C Pass Through Rate from
and including such immediately preceding Distribution Date to but excluding the
current Distribution Date, over (ii) the amount of principal distributed to
Class C Certificateholders on such current Distribution Date.
"Class C Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class C Percentage of the following amounts
(but not exceeding the Class C Certificate Balance as of such Distribution
Date): (i) in the case of Precomputed Receivables, the principal portion of all
Scheduled Payments due during the related Collection Period, computed in
accordance with the actuarial method, (ii) in the case of Simple Interest
Receivables, the principal portion of all Scheduled Payments actually received
during the related Collection Period, (iii) the principal portion of all
Prepayments received during such Collection Period (to the extent such amounts
are not included in clauses (i) and (ii) above), and (iv) the Principal Balance
of each Receivable that became an Administrative Receivable, a Warranty
Receivable or a Defaulted Receivable during such Collection Period (to the
extent such amounts are not included in clauses (i), (ii) and (iii) above). In
addition, with respect to the Final Scheduled Distribution Date or the
Distribution Date upon which all remaining Receivables are to be purchased
pursuant to Section 10.02, the Class C Principal Distributable Amount will
include the portion of such amount necessary (after giving effect to the other
amounts to be distributed to the Class C Certificateholders on such Final
Scheduled Distribution Date or Distribution Date and allocable to principal) to
reduce the Class C Certificate Balance to zero.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means July 24, 1996.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means the account or accounts designated as such
and established and maintained pursuant to Section 4.01.
"Collection Period" means, with respect to any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs (or, in the case of the first Distribution Date, the period of time
since the Cutoff Date through the end of the calendar month immediately
preceding the month in which such first Distribution Date occurs).
"Commission" means the Securities and Exchange Commission, and any
successor thereto.
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"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Agreement is
located at Four Albany Street, New York, New York 10006.
"Current Receivable" means each Receivable that is not a Defaulted
Receivable or a Liquidated Receivable.
"Cutoff Date" means July 1, 1996.
"Dealer" means the dealer of automobile and/or light duty trucks who
sold a Financed Vehicle and who originated and assigned the Receivable relating
to such Financed Vehicle to TMCC under an existing agreement between such
dealer and TMCC.
"Dealer Recourse" means, with respect to a Receivable, all recourse
rights against the Dealer which originated the Receivable, and any successor
Dealer.
"Defaulted Receivable" means a Receivable (other than an
Administrative Receivable or a Warranty Receivable) as to which (i) all or any
part of a Scheduled Payment is 150 or more days past due and the Servicer has
not repossessed the related Financed Vehicle, or (ii) the Servicer has, in
accordance with its customary servicing procedures, determined that eventual
payment in full is unlikely and either repossessed and liquidated the related
Financed Vehicle or repossessed and held the related Financed Vehicle in its
repossession inventory for 90 days, whichever occurs first.
"Definitive Certificates" shall have the meaning specified in Section
5.10.
"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.
"Delinquency Percentage" means, with respect to a Collection Period,
the percentage equivalent of a fraction, the numerator of which is the number
of (i) all outstanding Receivables 61 days or more delinquent (after taking
into account permitted extensions) as of the last day of such Collection
Period, determined in accordance with the Servicer's normal practices, plus
(ii) all repossessed Financed Vehicles that have not been liquidated (to the
extent the related Receivable is not otherwise reflected in clause (i) above),
and the denominator of which is the aggregate number of Current Receivables on
the last day of such Collection Period.
"Delivery" means, when used with respect to the Reserve Fund:
(i) with respect to certificated securities, bankers'
acceptances, commercial paper, negotiable certificates of deposit and
other obligations that constitute "instruments" within the meaning of
Section 9-105(1)(i) of the UCC and are susceptible of physical
delivery (collectively, "Physical Property"), transfer thereof to the
Trustee or its Financial Intermediary in accordance with Sections
8-313(1)(a), 8-313(1)(d)(i) or 8-313(1)(g) of the
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UCC, and evidence that any such Physical Property that is in
registrable form has been registered in the name of the Trustee, its
Financial Intermediary, its custodian or its nominee;
(ii) with respect to any Reserve Fund property that is a
book-entry security held through the Federal Reserve System pursuant
to federal book-entry regulations, the following procedures, all in
accordance with applicable law, including applicable federal
regulations and Articles 8 and 9 of the UCC: (A) book-entry
registration of such property to an appropriate book-entry account
maintained with a Federal Reserve Bank by the Trustee or by a
custodian and issuance to the Trustee or to such custodian, as the
case may be, of a deposit advice or other written confirmation of such
book-entry registration, (B) the making by any such custodian of
entries in its books and records identifying such book-entry security
held through the Federal Reserve System pursuant to federal book-entry
regulations as belonging to the Trustee and indicating that such
custodian holds such Reserve Fund property solely as agent for the
Trustee, and the making by the Trustee of entries in its books and
records establishing that it holds such Reserve Fund property solely
as Trustee pursuant to Section 4.07, and (C) such additional or
alternative procedures as may hereafter become necessary to effect
complete transfer of ownership of any such Reserve Fund property to
the Trustee, consistent with changes in applicable law or regulations
or the interpretation thereof; and
(iii) with respect to any Reserve Fund property that is an
uncertificated security under Article 8 of the UCC and that is not
governed by clause (ii) above, registration of the transfer to, and
ownership of such Reserve Fund property by, the Trustee, its Financial
Intermediary, its custodian or its nominee by the issuer of such
Reserve Fund.
"Determination Date" means, with respect to any Distribution Date, the
fifteenth calendar day of the month in which such Distribution Date occurs or,
if such day is not a Business Day, the next succeeding Business Day.
"Distribution Date" means, with respect to a Collection Period, the
twentieth calendar day of the following calendar month, or if such day is not a
Business Day, the next succeeding Business Day, commencing August 20, 1996.
"DTC" means The Depository Trust Company, and its successors.
"Eligible Investments" means, at any time, any one or more of the
following obligations and securities:
(i) obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency thereof, provided such obligations are backed by the full faith
and credit of the United States;
(ii) general obligations of or obligations guaranteed by FNMA
or any state of the United States, the District of Columbia or the
Commonwealth of Puerto Rico then rated the highest available credit
rating of each Rating Agency for such obligations;
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(iii) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States, any state thereof, the District of Columbia or the Commonwealth
of Puerto Rico, so long as at the time of such investment or
contractual commitment providing for such investment either the
long-term unsecured debt of such corporation has the highest available
rating from each Rating Agency for such obligations or the commercial
paper or other short-term debt which is then rated has the highest
available credit rating of each Rating Agency for such obligations;
(iv) certificates of deposit issued by any
depository institution or trust company (including the Trustee)
incorporated under the laws of the United States or of any state
thereof, the District of Columbia or the Commonwealth of Puerto Rico
and subject to supervision and examination by banking authorities of
one or more of such jurisdictions, provided that the short-term
unsecured debt obligations of such depository institution or trust
company are then rated the highest available rating of each Rating
Agency for such obligations;
(v) certificates of deposit issued by any bank,
trust company, savings bank or other savings institution and fully
insured by the FDIC;
(vi) repurchase obligations held by the Trustee
that are acceptable to the Trustee with respect to any security
described in clauses (i), (ii) or (vii) hereof or any other security
issued or guaranteed by any other agency or instrumentality of the
United States, in either case entered into with a federal agency or a
depository institution or trust company (acting as principal)
described in clause (iv) above;
(vii) interests in any closed-end management type
investment company or investment trust (a) registered under the
Investment Company Act, the portfolio of which is limited to the
obligations of, or guaranteed by, the United States and to agreements
to repurchase such obligations, which agreements, with respect to
principal and interest, are at least 100% collateralized by such
obligations marked to market on a daily basis and the investment
company or investment trust shall take delivery of such obligations
either directly or through an independent custodian designated in
accordance with the Investment Company Act and (b) acceptable to each
Rating Agency (as approved in writing by each Rating Agency) as
collateral for securities having ratings equivalent to the rating of
the Rated Certificates on the Closing Date;
(viii) money market funds so long as such funds are
rated Aaa by Moody's (so long as Moody's is a Rating Agency) and AAAm
by Standard & Poor's (so long as Standard & Poor's is a Rating
Agency), and any other fund for which the Trustee or an Affiliate of
the Trustee serves as an investment advisor, administrator,
shareholder servicing agent and/or custodian or subcustodian, provided
that any shares of such funds have a credit rating of at least Aaa by
Moody's (so long as Moody's is a Rating Agency) and AAAm by Standard &
Poor's (so long as Standard & Poor's is a Rating Agency) and
notwithstanding that (i) the Trustee or an Affiliate of the Trustee
charges and collects fees and expenses from such funds for services
rendered, (ii) the Trustee charges and collects fees and expenses for
services
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rendered pursuant to this Agreement and (iii) services performed for
such funds and pursuant to this Agreement may converge at any time.
Each of the Seller and the Servicer hereby specifically authorizes the
Trustee or an Affiliate of the Trustee to charge and collect all fees
and expenses from such funds for services rendered to such funds, in
addition to any fees and expenses the Trustee may charge and collect
for services rendered pursuant to this Agreement; and
(ix) such other investments acceptable to each
Rating Agency (as approved in writing by each Rating Agency) as will
not result in the qualification, downgrading or withdrawal of the
rating then assigned to the Rated Certificates by such Rating Agency;
provided that each of the foregoing investments shall mature no later than the
Business Day prior to the Distribution Date immediately following the date of
purchase (other than in the case of the investment of monies in instruments of
which the entity at which the related Account is located is the obligor, which
may mature on the related Distribution Date), and shall be required to be held
to such maturity.
Notwithstanding anything to the contrary contained in this definition,
(a) no Eligible Investment may be purchased at a premium, (b) any of the
foregoing which constitutes a certificated security shall not be considered an
Eligible Investment unless it is registered in the name of the Trustee in its
capacity as such and (c) any of the foregoing which constitutes an
uncertificated security shall not be considered an Eligible Investment unless
(i) it is registered in the name of the Trustee in its capacity as such or in
the name of its Financial Intermediary; (ii) no notation of the right of the
issuer thereof to a Lien thereon is contained in the initial transaction
statement therefor sent to the Trustee; (iii) a Responsible Officer of the
Trustee does not have notice or actual knowledge of (A) any restriction on the
transfer thereof imposed by the issuer thereof, or (B) any adverse claim, and
no notation of any such restriction or of any specific adverse claim as to
which the issuer has a duty under the law of the state in which the Corporate
Trust Office is located at the time of registration is contained in the initial
transaction statement therefor sent to the Trustee; and (iv) to a Responsible
Officer of the Trustee's actual knowledge, no creditor has served legal process
upon the issuer thereof at its chief executive office in the United States
which legal process attempts to place a Lien thereon prior to the registration
thereof in the name of the Trustee.
For purposes of this definition, any reference to the highest
available credit rating of an obligation shall mean the highest available
credit rating for such obligation, or such lower credit rating (as approved in
writing by each Rating Agency) as will not result in the qualification,
downgrading or withdrawal of the rating then assigned to the Rated Certificates
by such Rating Agency.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" shall have the meaning specified in Section 8.01.
"Excess Amounts" means, with respect to any Distribution Date, the
remaining Available Interest on deposit in the Collection Account in respect of
such Distribution Date after all
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distributions pursuant to Section 4.06(c) have been made. Excess Amounts shall
include all amounts received upon prepayment in full of Rule of 78s Receivables
in excess of the then outstanding Principal Balances thereof and accrued
interest thereon (calculated pursuant to the actuarial method).
"Excess Payment" means, with respect to a Receivable and a Collection
Period, the amount, if any, by which the Actual Payment exceeds the sum of (i)
the Scheduled Payment, and (ii) any Overdue Payment.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FDIC" means the Federal Deposit Insurance Corporation, and its
successors.
"FNMA" means the Federal National Mortgage Association, and its
successors.
"Final Scheduled Distribution Date" shall mean July 20, 2001.
"Final Scheduled Maturity Date" shall mean February 1, 2001.
"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.
"Financial Intermediary" shall mean a financial intermediary for the
Trustee as such term is defined in Section 8- 313(4) of the UCC.
"Independent Director" means a director of the Seller who is not (i) a
director, officer or employee of any affiliate of the Seller, (ii) a natural
person related to any director or officer of any affiliate of the Seller, (iii)
a holder (directly or indirectly) of more than 10% of any voting securities of
any affiliate of the Seller, or (iv) a natural person related to a holder
(directly or indirectly) of more than 10% of any voting securities of any
affiliate of the Seller.
"Insurance Policy" means, with respect to a Receivable, an insurance
policy covering physical damage, credit life, credit disability, theft,
mechanical breakdown or similar event relating to the related Financed Vehicle
or Obligor.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"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.
"Liquidated Receivable" means a Receivable that (i) has been the
subject of a Prepayment in full, or (ii) has been paid in full or the final
amounts in respect of such payment have been paid with respect to a Defaulted
Receivable, regardless of whether all or any part of such payment has been made
by the Obligor under such Receivable, the Seller pursuant to this Agreement,
the Servicer
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pursuant to this Agreement or pursuant to the Receivables Purchase Agreement,
an insurer pursuant to an Insurance Policy or otherwise.
"Liquidation Expenses" means, with respect to a Defaulted Receivable,
the amount charged by the Servicer, in accordance with its customary servicing
procedures, to or for its account for repossessing, refurbishing and disposing
of the related Financed Vehicle and other out-of-pocket costs related to such
liquidation.
"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.
"Monthly Payment" means, with respect to any Receivable, the amount of
each fixed monthly payment payable to the obligee under such Receivable in
accordance with the terms thereof, net of any portion of such monthly payment
that represents late payment charges, extension fees or collections allocable
to payments to be made by Obligors for payment of insurance premiums, extended
service contracts or similar items.
"Monthly Remittance Conditions" shall have the meaning specified in
Section 4.02(a).
"Moody's" means Moody's Investors Service, Inc., and its successors.
"Net Liquidation Proceeds" means, with respect to a Defaulted
Receivable, Liquidation Proceeds less Liquidation Expenses.
"Nonrecoverable Advance" shall have the meaning specified in Section
4.04(c).
"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.
"Offered Certificates" shall have the meaning specified in Section
6.03(b)(ii)(D).
"Officer's Certificate" means a certificate signed by the president,
any vice president, the treasurer or the secretary of the Seller or the
Servicer, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel (who, in the
case of counsel to the Seller or the Servicer, may be an employee of or outside
counsel to the Seller or the Servicer), which counsel shall be acceptable to
the Trustee.
"Optional Purchase Percentage" means 10.00%.
"Original Class A Certificate Balance" means $722,335,000.00.
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"Original Class B Certificate Balance" means $22,632,000.00.
"Original Class C Certificate Balance" means $9,430,267.42.
"Original Pool Balance" means $754,397,267.42.
"Outstanding Advances" means, with respect to a Receivable and the
last day of a Collection Period, the sum of all Advances made as of or prior to
such date, minus all payments or collections as of or prior to such date which
are specified in Section 4.04(b) as applied to reimburse all unpaid Advances
with respect to such Receivable.
"Outstanding Interest Advances" means, as of the last day of a
Collection Period with respect to a Receivable, the portion of Outstanding
Advances allocable to interest.
"Outstanding Principal Advances" means, as of the last day of a
Collection Period with respect to a Receivable, the portion of Outstanding
Advances allocable to principal.
"Overdue Payment" shall have the meaning specified in Section 4.03(a).
"Pass Through Rate" means the Class A Pass Through Rate, the Class B
Pass Through Rate or the Class C Pass Through Rate, as indicated by the
context.
"Payahead Account" means the account or accounts designated as such
and established and maintained pursuant to Section 4.01.
"Payment Ahead" means, with respect to a Precomputed Receivable and a
Collection Period, any Excess Payment (not representing prepayment in full of
such Precomputed Receivable) which the Servicer, in accordance with its
customary servicing practices, will apply towards the payment of Scheduled
Payments in one or more future Collection Periods.
"Person" means any legal person, including any individual,
corporation, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Physical Property" shall have the meaning specified in the definition
of the term "Delivery."
"Pool Balance" means, as of any date, the aggregate Principal Balance
of the Receivables (exclusive of all Administrative Receivables for which the
Servicer has paid the Administrative Purchase Payment, Warranty Receivables for
which the Seller has paid the Warranty Purchase Payment and Defaulted
Receivables) as of the close of business on such date.
"Pool Factor" as of any Distribution Date, means a seven-digit decimal
figure equal to the Pool Balance as of such Distribution Date divided by the
Original Pool Balance.
"Precomputed Advance" shall have the meaning specified in Section
4.04(a).
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"Precomputed Receivable" means any Actuarial Receivable or Rule of 78s
Receivable.
"Prepayment" means (i) with respect to any Precomputed Receivable, any
Excess Payment other than a Payment Ahead or (ii) with respect to any Simple
Interest Receivable, any prepayment, whether in part or in full, in respect of
such Simple Interest Receivable.
"Prepayment Surplus" means, with respect to any Distribution Date on
which a Prepayment is to be applied with respect to a Precomputed Receivable,
that portion of such Prepayment which is not attributable to principal in
accordance with the actuarial method, net of one month's interest at the
Weighted Average Rate on the Principal Balance of such Receivable as of the
first day of the related Collection Period.
"Principal Balance" means, with respect to any Receivable as of any
date, the Amount Financed minus the sum of the following amounts: (i) in the
case of a Precomputed Receivable, that portion of all Scheduled Payments due on
or prior to such date allocable to principal, computed in accordance with the
actuarial method, (ii) in the case of a Simple Interest Receivable, that
portion of all Scheduled Payments actually received on or prior to such date
allocable to principal, (iii) any Warranty Purchase Payment or Administrative
Purchase Payment with respect to such Receivable allocable to principal, and
(iv) any Prepayments or other payments applied to reduce the unpaid principal
balance of such Receivable.
"Rated Certificates" means any Class of Certificates that has been
rated by a Rating Agency at the request of the Seller.
"Rating Agency" means each of Moody's and Standard & Poor's.
"Rebate" means, with respect to a Precomputed Receivable and any date,
the rebate, calculated on an actuarial basis, under such Precomputed Receivable
that is or would be payable to the related Obligor for unearned finance charges
or any other charges subject to rebate if such Obligor were to prepay such
Receivable in full on such date.
"Receivable" means any retail installment sale contract executed by an
Obligor in respect of a Financed Vehicle, and all proceeds thereof and payments
thereunder due on a Precomputed Receivable on or after the Cutoff Date or made
on a Simple Interest Receivable on or after the Cutoff Date, which Receivable
shall be identified in the Schedule of Receivables.
"Receivable File" means the documents specified in Section 2.02
pertaining to a particular Receivable.
"Receivables Purchase Agreement" means that certain Receivables
Purchase Agreement, dated as of the Cutoff Date, between the Seller and TMCC.
"Record Date" means, with respect to Certificates of any Class and
each Distribution Date, the calendar day immediately preceding such
Distribution Date or, if Definitive Certificates representing Certificates of
such Class have been issued, the last day of the month immediately
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preceding the month in which such Distribution Date occurs. Any amount stated
"as of a Record Date" or "on a Record Date" shall give effect to (i) all
applications of collections, and (ii) all distributions to any party under this
Agreement or to the related Obligor, as the case may be, in each case as
determined as of the opening of business on the related Record Date.
"Released Administrative Amount" means, with respect to a Distribution
Date and to an Administrative Receivable, the Deferred Prepayment, if any, for
such Administrative Receivable.
"Released Warranty Amount" means, with respect to a Distribution Date
and to a Warranty Receivable, the Deferred Prepayment, if any, for such
Warranty Receivable.
"Representation Letter" means the representation letter to be
delivered to the Trustee by any transferee of a Class B Certificate or Class C
Certificate pursuant to Section 5.04, substantially in the form attached hereto
as Exhibit F.
"Required Rating" means a rating of Prime-1 by Moody's and A-1+ by
Standard & Poor's.
"Reserve Fund" means the segregated trust account established and
maintained for the benefit of the Certificateholders as a reserve fund pursuant
to Section 4.07(a).
"Reserve Fund Initial Deposit" means $5,657,980.00.
"Residual Certificate" shall have the meaning specified in Section
5.01.
"Responsible Officer" means, when used with respect to the Trustee,
any officer within the Corporate Trust Office of the Trustee, including any
Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with such
particular subject.
"Rule of 78s Receivable" means any Receivable which provides for the
allocation of payments according to the "sum of periodic balances" or "sum of
monthly payments" method.
"Schedule of Receivables" means the computer file or printed or
microfiche list containing a true and complete list of all such Receivables
attached as Schedule A to this Agreement, as the same may be amended from time
to time.
"Scheduled Payment" means, with respect to any Distribution Date and
to a Receivable, the payment set forth in such Receivable as due from the
Obligor in the related Collection Period.
"Scheduled Surplus" means, with respect to any Distribution Date for
any Receivable having an APR which exceeds the sum of the related Weighted
Average Rate and the Servicing Fee Rate, the product of (i) the interest
portion of the related Scheduled Payment (in the case of any Precomputed
Receivable, determined in accordance with the actuarial method), and (ii) the
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remainder of (a) one minus (b) a fraction, the numerator of which equals the
sum of the Weighted Average Rate and the Servicing Fee Rate and the denominator
of which equals such APR.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means Toyota Motor Credit Receivables Corporation, in its
capacity as seller of the Receivables under this Agreement, and each successor
thereto (in the same capacity) pursuant to Section 6.03.
"Servicer" means TMCC, in its capacity as servicer of the Receivables
pursuant to this Agreement, and each successor thereto (in the same capacity)
appointed pursuant to Section 8.03.
"Servicer's Certificate" means an Officer's Certificate of the
Servicer completed and executed pursuant to Section 3.10, substantially in the
form attached hereto as Exhibit A.
"Servicing Fee Rate" means 1.00% per annum.
"Simple Interest Advance" shall have the meaning specified in Section
4.04(a).
"Simple Interest Receivable" means any Receivable which provides for
the allocation of payments according to the simple interest method.
"Specified Reserve Fund Balance" means with respect to any
Distribution Date, an amount equal $5,657,980, except that, if on any
Distribution Date (i) the average of the Charge-off Rates for the preceding
three Collection Periods exceeds 1.25% or (ii) the average of the Delinquency
Percentages for the preceding three Collection Periods exceeds 1.25%, then the
Specified Reserve Fund Balance for such Distribution Date will be an amount
equal to the greater of 5.50% of the sum of the Class A Certificate Balance,
the Class B Certificate Balance and the Class C Certificate Balance (after
giving effect to distributions of principal to be made on such Distribution
Date) and $5,657,980; provided, however, that the Specified Reserve Fund
Balance shall in no event be more than the sum of the Class A Certificate
Balance, the Class B Certificate Balance and the Class C Certificate Balance,
in each case as of such Distribution Date.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., and its successors.
"Successor Servicer" means any entity appointed as a successor to the
Servicer pursuant to Section 8.03.
"Supplemental Servicing Fee" means, with respect to any Distribution
Date, all late fees, prepayment charges, extension fees and other
administrative fees and expenses or similar charges allowed by applicable law
with respect to the Receivables received by the Servicer during the related
Collection Period.
"TMCC" means Toyota Motor Credit Corporation, and its successors and
assigns.
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"Total Servicing Fee" means the sum of the Basic Servicing Fee and the
Supplemental Servicing Fee.
"Trust" means the trust created by this Agreement, the estate of which
consists of (i) the Receivables (other than Warranty Receivables for which the
Seller has paid the Warranty Purchase Payment and Administrative Receivables
for which the Servicer or the Seller has paid the Administrative Purchase
Payment) and all proceeds thereof and payments thereunder due on a Precomputed
Receivable on or after the Cutoff Date or made on a Simple Interest Receivable
on or after the Cutoff Date; (ii) security interests in the Financed Vehicles;
(iii) such assets (excluding investment earnings thereon) as are from time to
time deposited in the Accounts, other than the Reserve Fund; (iv) proceeds from
claims on any Insurance Policies; (v) the right to realize upon any property
(including the right to receive future Liquidation Proceeds) that shall have
secured a Receivable and have been repossessed by or on behalf of the Trustee;
(vi) an assignment of the Seller's rights as purchaser under the Receivables
Purchase Agreement; (vii) the right of to receive payments pursuant to any
Dealer Recourse; and (viii) all proceeds of the foregoing. The Reserve Fund
shall not be a part of or otherwise includable in the Trust.
"Trustee" means Bankers Trust Company, and any successor trustee
appointed pursuant to Section 9.11.
"Trustee's Certificate" means a certificate completed and executed by
a Responsible Officer pursuant to Section 9.02 or 9.03, substantially in the
form attached hereto as Exhibit B.
"UCC" means the Uniform Commercial Code as in effect in the respective
jurisdiction.
"United States" means the United States of America.
"Vice President" of any Person means any vice president of such
Person, whether or not designated by a number or words before or after the
title "Vice President", who is a duly elected officer of such Person.
"Voting Interests" means the aggregate voting strength evidenced by
the Class A Certificates, the Class B Certificates or the Class C Certificates,
as the case may be; provided, however, that where the Voting Interests are
relevant in determining whether the vote of the requisite percentage of
Certificateholders necessary to effect any consent, waiver, request or demand
shall have been obtained, the Voting Interests shall be deemed to be reduced by
the amount equal to the Voting Interests (without giving effect to this
provision) represented by the interests evidenced by any Certificate registered
in the name of, or in the name of a Person or entity holding for the benefit
of, the Seller, the Servicer or any Person actually known to a Responsible
Officer of the Trustee to be controlling, controlled by or under common control
with the Seller or the Servicer.
"Warranty Purchase Payment" means, with respect to a Distribution Date
and to (1) a Warranty Receivable which is a Precomputed Receivable repurchased
by the Seller as of the end 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
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has not been made, (iii) an amount equal to any reimbursement of Outstanding
Advances made pursuant to Section 4.04(b) with respect to such Receivable and
(iv) all Outstanding Advances made in respect of such Receivable, minus (b) the
sum of (i) any Rebate and (ii) any other proceeds in respect of such Receivable
previously received (to the extent applied to reduce the Principal Balance of
such Receivable on such Distribution Date), and (2) a Warranty Receivable which
is a Simple Interest Receivable repurchased by the Seller as of the end of the
related Collection Period, the sum of (a) the unpaid principal balance owed by
the Obligor in respect of such Receivable plus (b) interest on such unpaid
principal balance at a rate equal to the sum of the Weighted Average Rate and
the Servicing Fee Rate to the last day in the related Collection Period.
"Warranty Receivable" means a Receivable which the Seller is required
to repurchase pursuant to Section 2.05.
"Weighted Average Rate" as of any date means the average of the Class
A Pass Through Rate, the Class B Pass Through Rate and the Class C Pass Through
Rate then in effect, weighted on the basis of the Class A Certificate Balance,
the Class B Certificate Balance and the Class C Certificate Balance as of the
preceding Distribution Date.
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ARTICLE II
CREATION OF TRUST; CONVEYANCE OF RECEIVABLES;
CUSTODY OF RECEIVABLE FILES
SECTION 2.01 Creation of Trust; Conveyance of Receivables. (a) Upon
the execution of this Agreement by the parties hereto, there is hereby created
the Toyota Auto Receivables 1996-A Grantor Trust. The Seller, pursuant to the
mutually agreed upon terms contained in this Agreement, shall sell, transfer,
assign and otherwise convey to the Trustee on behalf of the Trust, without
recourse (but subject to the Seller's obligations in this Agreement), all of
its right, title and interest in and to the Receivables and any proceeds
related thereto, including any Dealer Recourse and such other items as shall be
specified in this Agreement.
(b) In consideration of the Trustee's delivery to the Seller on
behalf of the Trust of authenticated Certificates, in authorized denominations,
in an aggregate amount equal to the Original Pool Balance, the Seller does
hereby sell, transfer, assign and otherwise convey to the Trustee, in trust for
the benefit of the Certificateholders, without recourse (subject to the
Seller's obligations herein):
(i) all right, title and interest of the Seller
in and to the 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 2.05 or 10.02 or the
purchase of Receivables by the Servicer pursuant to Section 3.08 or
10.02) 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 interest of the Seller under the
Receivables Purchase Agreement;
(vi) 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 by or
on behalf of the Trustee;
(vii) all other assets comprising the Trust; and
(viii) all proceeds of the foregoing.
(c) 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 Trust and the beneficial
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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.
(d) Although the parties hereto intend that the transfer and
assignment contemplated by this Agreement be a sale, in the event such transfer
and assignment is deemed to be other than a sale, the parties intend that all
filings described in the foregoing paragraph shall give the Trustee on behalf
of the Trust a first priority perfected security interest in, to and under the
Receivables, and other property conveyed hereunder and all proceeds of any of
the foregoing. This Agreement shall be deemed to be the grant of a security
interest from the Seller to the Trustee on behalf of the Trust, and the Trustee
on behalf of the Trust shall have all the rights, powers and privileges of a
secured party under the UCC.
(e) In connection with the foregoing conveyance, the Servicer shall
maintain its computer system so that, from and after the time of sale of the
Receivables to the Trustee on behalf of the Trust under this Agreement, the
Servicer's master computer records (including any back-up archives) that refer
to any Receivable indicate clearly the interest of the Trust in such Receivable
and that the Receivable is owned by the Trustee on behalf of the Trust.
Indication of the Trust's ownership of a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, the Receivable
has been paid in full, repurchased or assigned pursuant to this Agreement.
SECTION 2.02 Custody of Receivable Files. To assure uniform quality
in servicing the Receivables and to reduce administrative costs, the Trustee on
behalf of the Trust, upon the execution and delivery of this Agreement,
revocably appoints the Servicer, and the Servicer accepts such appointment, to
act as the agent of the Trust as custodian of the following documents or
instruments which are hereby constructively delivered to the Trustee with
respect to each Receivable:
(a) the fully executed original of the Receivable;
(b) documents evidencing or related to any Insurance
Policy;
(c) the original credit application of each Obligor,
fully executed by such Obligor on TMCC's customary form, or on a form
approved by TMCC, for such application;
(d) the original certificate of title (or evidence that
such certificate of title has been applied for) or such documents that
the Servicer shall keep on file, in accordance with TMCC's customary
procedures, evidencing the security interest in the related Financed
Vehicle; and
(e) any and all other documents that the Seller or the
Servicer, as the case may be, shall keep on file, in accordance with
its customary procedures, relating to such Receivable or the related
Obligor or Financed Vehicle.
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SECTION 2.03 Acceptance by Trustee. The Trustee hereby acknowledges
its acceptance, on behalf of the Trust, pursuant to this Agreement, of all
right, title and interest in and to the Receivables conveyed by the Seller
pursuant to this Agreement and declares and shall declare from and after the
date hereof that the Trustee holds and shall hold such right, title and
interest, upon the trust set forth in this Agreement.
SECTION 2.04 Representations and Warranties of Seller as to the
Receivables. The Seller does hereby make the following representations and
warranties on which the Trustee shall rely in accepting the Receivables in
trust and authenticating the Certificates:
(a) Characteristics of Receivables. Each Receivable (i)
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 TMCC from such
Dealer under an existing agreement with TMCC and shall have been
validly assigned by such Dealer to TMCC in accordance with the terms
of such agreement and shall have been subsequently sold by TMCC to the
Seller pursuant to the Receivables Purchase Agreement, (ii) shall have
created or shall create a valid, subsisting and enforceable first
priority security interest in favor of TMCC in the related Financed
Vehicle, which security interest has been assigned by TMCC to the
Seller and shall be assignable, and shall be so assigned, by the
Seller to the Trustee, (iii) shall, except as otherwise provided in
this Agreement, provide for level Monthly Payments (provided that the
payment in the first or last month in the life of the Receivable may
be minimally different from the level payment) that fully amortize the
Amount Financed by maturity and provide for a finance charge or yield
interest at its APR, in either case calculated based on the Rule of
78s, the simple interest method or the actuarial method, (iv) 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 (v) 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 in an amount calculated by using an interest rate
at least equal to its APR.
(b) 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,
and no selection procedures adverse to the Certificateholders shall
have been utilized in selecting the Receivables from those automobile
and light duty truck receivables of TMCC which met the selection
criteria set forth in this Section and this Agreement.
(c) Compliance with Law. Each Receivable and each sale
of the related Financed Vehicle shall have complied at the time it was
originated or made, and shall comply at the time of execution of this
Agreement, in all material respects with all requirements of
applicable federal, state and local laws, and regulations thereunder,
including usury laws, the Federal Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal
Trade
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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.
(d) 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.
(e) 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 bankrupt or is
insolvent.
(f) 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.
(g) Employee Obligors. None of the Receivables shall be
due from any employee of the Seller, TMCC or any of their respective
affiliates.
(h) Security Interest in Financed Vehicles. Immediately
prior to the sale, assignment and transfer thereof, each Receivable
shall be secured by a validly perfected first priority security
interest in the related Financed Vehicle in favor of TMCC 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 TMCC as secured party.
(i) 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.
(j) 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.
(k) 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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(l) 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.
(m) No Liens. To the knowledge of the Seller, no liens
or claims shall have been filed, 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.
(n) No Default; 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.
(o) Insurance. At the time of origination of each
Receivable, each Obligor was required under the terms of such
Receivable to obtain and maintain physical damage insurance covering
the related Financed Vehicle.
(p) 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 Trust 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 Trust, and no provision of a
Receivable shall have been waived, except as provided in clause (j)
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 Trust 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.
(q) 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 a transfer of the related certificate of
title shall be unlawful, void or voidable.
(r) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to provide third parties with
notice of the transfer and assignment herein contemplated, to perfect
the sale of the Receivables from the Seller to the Trustee and to give
the Trustee on behalf of the Trust a first priority perfected security
interest in the Receivables shall have been made.
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(s) One Original. There shall be only one original
executed copy of each Receivable.
(t) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the UCC.
(u) Maturity of Receivables. Each Receivable shall have
an original number of Scheduled Payments of not less than 12 nor more
than 72 and, as of the Cutoff Date, a remaining number of Scheduled
Payments of not less than 4 nor more than 54 months.
(v) Finance Charge. Each Receivable provides for an APR
equal to or greater than 8.00% and equal to or less than 22.00%.
(w) Principal Balance. Each Receivable had an original
principal balance of not less than $1,019.74 nor more than $50,000.00
and an unpaid principal balance, as of the Cutoff Date, of not less
than $259.63 nor more than $45,497.21.
(x) No Overdue Payments. No Receivable shall have a
Scheduled Payment that is more than 30 days past due as of the Cutoff
Date.
(y) Location of Receivable Files. Each Receivable File
shall be kept at one of the locations listed in the Schedule of
Receivables or at such other office as shall be specified to the
Trustee by 30 days' prior written notice.
(z) Payments on the Receivables. Each Receivable shall
provide for level monthly payments that fully amortize the Amount
Financed by maturity, except that the payment in the first or last
month in the life of the Receivable may be minimally different from
the level payment.
(aa) Origination Date. Each Receivable was originated on
or before May 31, 1996.
(bb) No Special Financing. No Receivable was originated
under a special financing program.
(cc) No Force-Placed Insurance. No Financed Vehicle was
subject to force-placed insurance as of the Cutoff Date.
SECTION 2.05 Repurchase of Receivables Upon Breach. Upon discovery
by the Seller or the Servicer or upon the actual knowledge of a Responsible
Officer of the Trustee of a breach of any of the representations and warranties
of the Seller set forth in this Agreement that materially and adversely affects
the interests of the Certificateholders in any Receivable, the party
discovering such breach shall give prompt written notice to the others. As of
the last day of the second Collection Period following the Collection Period in
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which it discovers or receives notice of such breach (or, at the Seller's
election, the last day of the first Collection Period following the Collection
Period in which it discovers or receives notice of such breach), the Seller
shall, unless such breach shall have been cured in all material respects,
repurchase such Receivable and, if necessary, the Seller shall enforce the
obligation of TMCC under the Receivables Purchase Agreement to repurchase such
Receivable from the Seller. This repurchase obligation shall obtain for all
representations and warranties of the Seller contained in this Agreement
whether or not the Seller has knowledge of the breach at the time of the breach
or at the time the representations and warranties were made. In consideration
of the repurchase of any such Receivable, on the Business Day immediately
preceding the related Distribution Date, the Seller shall remit the Warranty
Purchase Payment of such Receivable to the Collection Account in the manner
specified in Section 4.05 and shall be entitled to receive the Released
Warranty Amount. In the event that any Liens or claims shall have been filed,
including Liens for work, labor or materials relating to a Financed Vehicle,
that shall be prior to, or equal or coordinate with, the lien granted by the
related Receivable, which Liens or claims shall not have been satisfied or
otherwise released in full as of the Closing Date, and such breach materially
and adversely affects the interests of the Trust in such Receivable, the Seller
shall repurchase such Receivable on the terms and in the manner specified
above.
Upon any such repurchase, the Trustee on behalf of the Trust shall,
without further action, be deemed to transfer, assign, set-over and otherwise
convey to the Seller, all right, title and interest of the Trustee on behalf of
the Trust in, to and under such repurchased Receivable, all monies due or to
become due with respect thereto and all proceeds thereof. The Trustee shall
execute such documents and instruments of transfer and assignment and take such
other actions as shall be reasonably requested by the Seller to effect the
conveyance of such Receivable pursuant to this Section. The sole remedy of the
Trustee, the Trust or the Certificateholders with respect to a breach of the
Seller's representations and warranties pursuant to this Agreement or with
respect to the existence of any such Liens or claims shall be to require the
Seller to repurchase the related Receivable pursuant to this Section and to
enforce TMCC's obligation to the Seller to repurchase such Receivables pursuant
to the Receivables Purchase Agreement. The Trustee shall have no duty to
conduct any affirmative investigation as to the occurrence of any condition
requiring the repurchase of any Receivable pursuant to this Section.
SECTION 2.06 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as
custodian, shall hold the Receivable Files on behalf of the Trustee
for the use and benefit of all present and future Certificateholders,
and maintain such accurate and complete accounts, records and computer
systems pertaining to each Receivable File as shall enable the Trustee
to comply with this Agreement. In performing its duties as custodian,
the Servicer shall act with reasonable care, using that degree of
skill and attention that it exercises with respect to the receivable
files of comparable automobile and light duty truck receivables that
the Servicer services for itself or others. The Servicer shall
conduct, or cause to be conducted, periodic examinations of the files
of receivables owned or serviced by it which shall include Receivable
Files held by it under this Agreement, and of the related accounts,
records and computer systems, in such a manner as shall enable the
Trustee to verify the accuracy of the Servicer's record keeping. The
Servicer shall promptly report to the Trustee any failure on its part
to hold the
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Receivable Files and maintain its accounts, records and computer
systems as herein provided and promptly take appropriate action to
remedy any such failure.
(b) Maintenance of and Access to Records. The Servicer
shall maintain each Receivable File at one of its offices specified in
the Schedule of Receivables or at such other office as shall be
specified to the Trustee by 30 days' prior written notice. The
Servicer shall make available to the Trustee or its duly authorized
representatives, attorneys or auditors the Receivable Files and the
related accounts, records and computer systems maintained by the
Servicer at such times as the Trustee shall reasonably instruct.
(c) Release of Documents. Upon instruction from the
Trustee, the Servicer shall release any document in the Receivable
Files to the Trustee or its agent or designee, as the case may be, at
such place or places as the Trustee may designate, as soon as
practicable. The Servicer shall not be responsible for any loss
occasioned by the failure of the Trustee to return any document or any
delay in doing so.
SECTION 2.07 Instructions; Authority to Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by a Responsible Officer
of the Trustee. A certified copy of a bylaw or of a resolution of the board of
directors of the Trustee shall constitute conclusive evidence of the authority
of any such Responsible Officer to act and shall be considered in full force
and effect until receipt by the Servicer of written notice to the contrary
given by the Trustee.
SECTION 2.08 Indemnification of Custodian. The Servicer, as
custodian of the Receivable Files, shall indemnify the Trustee for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses of any kind whatsoever (including reasonable attorney's fees and
expenses incurred in connection with defending against any such claim) that may
be imposed on, incurred or asserted against the Trustee as the result of any
improper act or omission in any way relating to the maintenance and custody of
the Receivable Files by the Servicer, as custodian; provided, however, that the
Servicer shall not be liable for any portion of any such amount resulting from
the willful misfeasance, bad faith or negligence of the Trustee.
SECTION 2.09 Effective Period and Termination. The Servicer's
appointment as custodian of the Receivable Files shall become effective as of
the Cutoff Date and shall continue in full force and effect until terminated
pursuant to this Section. If the Servicer shall resign as Servicer pursuant to
Section 7.05 or if all of the rights and obligations of the Servicer have been
terminated pursuant to Section 8.02, the appointment of the Servicer as
custodian of the Receivable Files shall be terminated by the Trustee, or by
Certificate Owners representing in the aggregate not less than 51% of the
voting interests of the Class A Certificates, Class B Certificates and Class C
Certificates, acting as a single Class, in the same manner as the Trustee or
such Holders may terminate the rights and obligations of the Servicer under
Section 8.02. The Trustee may terminate the Servicer's appointment as
custodian of
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the Receivable Files with cause at any time immediately upon written
notification to the Servicer. As soon as practicable after any termination of
such appointment, the Servicer shall deliver the Receivable Files to the
Trustee or its agent at such place or places as the Trustee may reasonably
designate. Notwithstanding the termination of the Servicer as custodian of the
Receivable Files, the Trustee agrees that upon any such termination, the
Trustee shall provide, or cause its agent to provide, access to the Receivable
Files to the Servicer, upon reasonable advance written request and during
normal business hours, for the purpose of carrying out its duties and
responsibilities with respect to the servicing of the Receivables pursuant to
this Agreement.
SECTION 2.10 Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the term
"including" means "including without limitation."
SECTION 2.11 Cutoff Date and Record Date. All references to the
Record Date prior to the first Record Date in the life of the Trust shall be to
the Cutoff Date.
SECTION 2.12 Section References. All section references shall be to
Sections in this Agreement.
SECTION 2.13 Agent for Service. The agent for service for the Seller
shall be its President, 19001 South Western Avenue, Torrance, California 90501,
and the agent for service for the Servicer shall be its Senior Vice President,
19001 South Western Avenue, Torrance, California 90501.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Duties of Servicer. The Servicer, as agent for the
Trust, shall manage, service, administer and make collections on and in respect
of the Receivables with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to all comparable automobile
and light duty truck receivables that it services for itself or others. The
Servicer's duties shall include collecting and posting of all payments,
responding to inquiries of Obligors or by federal, state or local government
authorities with respect to the Receivables, investigating delinquencies,
sending payment information to Obligors, reporting tax information to Obligors
in accordance with its customary practices, policing the collateral, accounting
for collections, furnishing monthly and annual statements to the Trustee with
respect to distributions, generating federal income tax information, making
Advances and performing the other duties specified herein. The Servicer shall
follow its customary standards, policies and procedures and shall have full
power and authority, acting alone, to do any and all things in connection with
such managing, servicing, administration and collection that it may deem
necessary or desirable.
Without limiting the generality of the foregoing, the Servicer shall
be authorized and empowered by the Trustee to execute and deliver, on behalf of
itself, the Trust, the Trustee or the Certificateholders or any of them, any
and all instruments of satisfaction or cancellation, or of partial
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or full release or discharge and all other comparable instruments, with respect
to the Receivables and the Financed Vehicles. The Servicer is hereby
authorized to commence, in its own name or in the name of the Trust, a legal
proceeding to enforce a Defaulted Receivable pursuant to Section 3.04 or to
commence or participate in a legal proceeding (including without limitation a
bankruptcy proceeding) relating to or involving a Receivable, including a
Defaulted Receivable. If the Servicer commences or participates in such a
legal proceeding in its own name, the Trustee shall thereupon be deemed to have
automatically assigned, solely for the purpose of collection on behalf of the
party retaining an interest in such Receivable, such Receivable and the other
property conveyed to the Trust pursuant to Section 2.01 with respect to such
Receivable to the Servicer for purposes of commencing or participating in any
such proceeding as a party or claimant, and the Servicer is authorized and
empowered by the Trustee to execute and deliver in the Servicer's name any
notices, demands, claims, complaints, responses, affidavits or other documents
or instruments in connection with any such proceeding. If in any enforcement
suit or legal proceeding it shall be held that the Servicer may not enforce a
Receivable on the grounds that it shall not be a real party in interest or a
holder entitled to enforce such Receivable, the Trustee on behalf of the Trust
shall, at the Servicer's expense and written direction, take reasonable steps
to enforce such Receivable, including bring suit in its name or the name of the
Certificateholders. The Trustee shall furnish the Servicer with any powers of
attorney and other documents and take any other steps which the Servicer may
deem reasonably necessary or appropriate to enable the Servicer to carry out
its servicing and administrative duties under this Agreement.
SECTION 3.02 Collection of Receivable Payments. The Servicer shall
make reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due, and shall
follow such customary collection procedures as it follows with respect to
comparable automobile or light duty truck receivables that it services for
itself or others. The Servicer shall be authorized to grant extensions,
rebates or adjustments on a Receivable in accordance with the customary
servicing standards of the Servicer without the prior consent of the Trustee;
provided, however, that if, as a result of any change in the related APR,
increase in the total number of Scheduled Payments, extension of payments such
that the Receivable will be outstanding later than the Final Scheduled Maturity
Date, or other modification of the terms of a Receivable, the amount of any
Scheduled Payment due in a subsequent Collection Period is reduced, the
Servicer shall be obligated to either repurchase such Receivable pursuant to
Section 3.08 or to make an Advance in respect of such Receivable in each
subsequent Collection period equal to the amount by which such Scheduled
Payment has been reduced. In addition, in the event that any such rescheduling
or extension of a Receivable modifies the terms of such Receivable in such a
manner as will cause a Receivable to be outstanding later than April 30, 1996,
the Seller shall be obligated to repurchase such Receivable pursuant to Section
3.08. In addition, in the event that any such rescheduling or extension of a
Receivable modifies the terms of such Receivable in such a manner as to release
the security interest in the related Financed Vehicle or constitute a
cancellation of such Receivable and the creation of a new automobile or light
duty truck receivable, the Servicer shall purchase such Receivable pursuant to
Section 3.08, and the receivable created shall not be included in the Trust.
The Servicer may, in accordance with its customary servicing procedures, waive
any prepayment charge, late payment charge or any other fees that may be
collected in the ordinary course of servicing the Receivables.
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SECTION 3.03 Rebates on Full Prepayments. In the event that the
amount of a full Prepayment by an Obligor under a Precomputed Receivable, after
adjustment for the applicable Rebate, is less than the amount that would be
payable under the actuarial method if a full Prepayment were made at the end of
the billing month under such Precomputed Receivable, either because the Rebate
calculated under the terms of such Precomputed Receivable is greater than the
amount calculable under the actuarial method or because the Servicer's
customary servicing procedure is to credit a greater Rebate, the Servicer, as
part of its servicing duties, shall remit such difference to the Trust by
deposit into the Collection Account pursuant to Section 4.05.
SECTION 3.04 Realization Upon Receivables. On behalf of the Trust,
the Servicer shall use its best efforts, consistent with its customary
servicing procedures, to repossess or otherwise comparably convert the
ownership of any Financed Vehicle that it has reasonably determined should be
repossessed or otherwise converted following a default under the Receivable
secured by the Financed Vehicle (and shall specify such Receivables to the
Trustee no later than the Determination Date following the end of the
Collection Period in which the Servicer shall have made such determination).
The Servicer shall follow such practices and procedures as it shall deem
necessary or advisable and as shall be customary and usual in its servicing of
automobile and light duty truck receivables, which practices and procedures may
include reasonable efforts to realize upon any Dealer Recourse, selling the
related Financed Vehicle at public or private sale and other actions by the
Servicer in order to realize upon such a Receivable. The Servicer shall be
entitled to recover its reasonable Liquidation Expenses with respect to each
Defaulted Receivable. All Net Liquidation Proceeds realized in connection with
any such action with respect to a Receivable shall be deposited by the Servicer
in the Collection Account in the manner specified in Section 4.02. The
foregoing is subject to the proviso that, in any case in which the Financed
Vehicle shall have suffered damage, the Servicer shall not expend funds in
connection with any repair or towards the repossession of such Financed Vehicle
unless it shall determine in its discretion that such repair and/or
repossession shall increase the Liquidation Proceeds of the related Receivable
by an amount greater than the amount of such expenses.
SECTION 3.05 Maintenance of Physical Damage Insurance Policies. The
Servicer shall, in accordance with its customary servicing procedures and
underwriting standards, require that each Obligor shall have obtained physical
damage insurance covering each Financed Vehicle as of the origination of the
related Receivable.
SECTION 3.06 Maintenance of Security Interests in Financed Vehicles.
The Servicer shall, in accordance with its customary servicing procedures and
at its own expense, take such steps as are necessary to maintain perfection of
the security interest created by each Receivable in the related Financed
Vehicle. The Trustee hereby authorizes the Servicer, and the Servicer hereby
agrees, to take such steps as are necessary to again perfect such security
interest on behalf of the Trust in the event of the relocation of a Financed
Vehicle or for any other reason. In the event that the assignment of a
Receivable to the Trust is insufficient, without a notation on the related
Financed Vehicle's certificate of title, to grant to the Trust a first priority
perfected security interest in the related Financed Vehicle, the Servicer
hereby agrees to serve as the agent of the Trust for the purpose of perfecting
the security interest of the Trust in such Financed Vehicle and agrees that the
Servicer's listing as the secured party on the certificate of title is in this
capacity as agent of the Trust.
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SECTION 3.07 Covenants of Servicer. The Servicer shall make the
following covenants on which the Trustee shall rely in accepting the
Receivables in trust and authenticating the Certificates.
(a) Liens in Force. Except as contemplated by this
Agreement, the Servicer shall not release in whole or in part any
Financed Vehicle from the security interest securing the related
Receivable.
(b) No Impairment. The Servicer shall do nothing to
impair the rights of the Certificateholders in the Receivables.
(c) No Amendments. Except as provided in Section 3.02,
the Servicer shall not amend or otherwise modify any Receivable such
that the total number of Scheduled Payments, the Amount Financed or
the APR is altered or extends the maturity of such Receivable beyond
the Final Scheduled Maturity Date.
SECTION 3.08 Purchase of Receivables Upon Breach. Upon discovery by
the Seller or the Servicer or upon the actual knowledge of a Responsible
Officer of the Trustee of a breach of any of the covenants of the Servicer set
forth in Section 3.07 that materially and adversely affects the interests of
the Certificateholders in a Receivable, or if an improper extension,
rescheduling or modification of a Receivable is made by the Servicer as
described in Section 3.02, the party discovering such breach shall give prompt
written notice to the others. As of the last day of the second Collection
Period following the Collection Period in which it discovers or receives notice
of such breach (or, at the Servicer's election, the last day of the first
Collection Period following the Collection Period in which it discovers or
receives notice of such breach), the Servicer shall, unless such breach or
impropriety shall have been cured in all material respects, purchase from the
Trust such Receivable. In consideration of the purchase of any such
Receivable, on the Business Day immediately preceding the related Distribution
Date the Servicer shall remit the Administrative Purchase Payment to the
Collection Account in the manner specified in Section 4.05, and shall be
entitled to receive the Released Administrative Amount. Upon such deposit of
the Administrative Purchase Payment, the Servicer shall for all purposes of
this Agreement be deemed to have released all claims for reimbursement of
Outstanding Advances made in respect of such Receivable. The sole remedy of
the Trustee, the Trust or the Certificateholders against the Servicer with
respect to a breach pursuant to Section 3.02 or 3.07 shall be to require the
Servicer to purchase the related Receivables pursuant to this Section, except
as otherwise provided in Section 7.02. The Trustee shall have no duty to
conduct any affirmative investigation as to the occurrence of any condition
requiring the repurchase of any Receivable pursuant to this Section except as
otherwise provided in Section 9.02.
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by
Servicer. As compensation for the performance of its obligations hereunder,
the Servicer shall be entitled to receive on each Distribution Date, out of
Available Interest, the Total Servicing Fee. The Basic Servicing Fee in
respect of a Collection Period shall be calculated based on a 360 day year
comprised of twelve 30-day months. Except to the extent otherwise provided
herein, the Servicer shall be required to pay all expenses incurred by it in
connection with its activities under this
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Agreement (including fees and disbursements of the Trustee and independent
accountants, taxes imposed on the Servicer, expenses incurred in connection
with distributions and reports to Certificateholders and all other fees and
expenses not expressly stated under this Agreement to be for the account of the
Certificateholders).
SECTION 3.10 Servicer's Certificate. On or before each Determination
Date, the Servicer shall deliver to the Trustee and each Rating Agency a
Servicer's Certificate executed by the President or any Vice President or
principal accounting officer of the Servicer substantially in the form attached
hereto as Exhibit A (and setting forth such additional information as requested
by the Trustee or any Rating Agency from time to time which information the
Servicer is able to reasonably provide) containing all information necessary to
make the distributions required by Sections 4.06 and 4.07 in respect of the
Collection Period immediately preceding the date of such Servicer's Certificate
and all information necessary for the Trustee to send statements to
Certificateholders pursuant to Section 4.10(a). The Servicer shall also
specify to the Trustee, no later than the Determination Date following the last
day of a Collection Period as of which the Seller shall be required to
repurchase or the Servicer shall be required to purchase a Receivable, the
identity of any such Receivable and the identity of any Receivable which the
Servicer shall have determined to be a Defaulted Receivable during such
Collection Period. Receivables purchased or to be purchased by the Servicer or
the Seller and Receivables that the Servicer has determined during such
Collection Period to be Defaulted Receivables and with respect to which payment
of the Administrative Purchase Payment or Warranty Purchase Payment has been
provided from whatever source as of the last day of such Collection Period
shall be identified by the related Obligor's account number (as specified in
the Schedule of Receivables).
SECTION 3.11 Annual Statement as to Compliance; Notice of Default.
(a) The Servicer shall deliver to the Trustee, on or
before December 31 of each year, beginning with December 31, 1996, an
Officer's Certificate of the Servicer, stating that (i) a review of
the activities of the Servicer during the preceding 12-month period
ended September 30 (or other applicable period in the case of the
first such Officer's Certificate) and of its performance under this
Agreement has been made under such officer's supervision, and (ii) to
such officer's knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement throughout such
period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the
nature and status thereof.
(b) The Servicer shall deliver to the Trustee, promptly
after having obtained knowledge thereof, but in no event later than
five Business Days thereafter, an Officer's Certificate specifying the
nature and status of any event which with the giving of notice or
lapse of time, or both, would become an Event of Default.
SECTION 3.12 Annual Accountants' Report. The Servicer shall cause a
firm of independent accountants (who may also render other services to the
Servicer or to the Seller) to deliver to the Trustee on or before December 31
of each year, beginning with December 31, 1996, an Officer's Certificate of the
Servicer, stating that (i) a review of the activities of the Servicer during
the
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preceding 12-month period ended September 30 (or other applicable period in the
case of the first such report or letter) to the effect that such accountants
have reviewed certain records and documents relating to the servicing of the
Receivables under this Agreement (using procedures specified in such report or
letter) and as a result of such review, and in connection with such procedures,
they are reporting such exceptions, if any, as shall be set forth therein.
Such report or letter shall also indicate that the firm is independent with
respect to the Seller and the Servicer within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
SECTION 3.13 Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Trustee reasonable
access to the documentation regarding the Receivables. The Servicer shall
provide such access to any Certificateholder only in such cases where a
Certificateholder is required by applicable statutes or regulations to review
such documentation. In each case, such access shall be afforded without charge
but only upon reasonable request and during normal business hours at the
respective offices of the Servicer. Nothing in this Section shall derogate
from the obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors, and the failure of the
Servicer to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section.
SECTION 3.14 Amendments to Schedule of Receivables. If the
Servicer, during a Collection Period, assigns to a Receivable an account number
that differs from the original account number identifying such Receivable on
the Schedule of Receivables, the Servicer shall deliver to the Seller and the
Trustee on or before the Distribution Date relating to such Collection Period
an amendment to the Schedule of Receivables reporting the newly assigned
account number, together with the old account number of each such Receivable.
The first such delivery of amendments to the Schedule of Receivables to the
Trustee shall include monthly amendments reporting account numbers appearing on
the Schedule of Receivables with the new account numbers assigned to such
Receivables during any prior Collection Period.
SECTION 3.15 Reports to Certificateholders and Rating Agencies.
(a) The Trustee shall provide to any Certificateholder or
Certificate Owner who so requests in writing a copy of any (i)
Servicer's Certificate, (ii) annual statement as to compliance
described in Section 3.11(a), (iii) annual accountants' report
described in Section 3.12 or (iv) statement to Certificateholders
pursuant to Section 4.10(a). The Trustee may require such
Certificateholder or Certificate Owner to pay a reasonable sum to
cover the cost of the Trustee's complying with such request.
(b) The Trustee shall forward to each Rating Agency, and
the Seller will forward to the Luxembourg Stock Exchange Limited, The
Stock Exchange of Hong Kong Limited, any paying agent appointed to
make payments in Luxembourg, to the offices of Lehman Brothers Inc. at
One Pacific Place, 88 Queensway, Hong Kong, and to the offices of
Goldman Sachs (Asia) L.L.C. at 37th Floor, Asia Pacific Finance Tower,
Citibank Plaza, 3 Garden Road, Central, Hong Kong: a copy of each (i)
Servicer's Certificate, (ii) annual statement as to compliance
described in Section 3.11(a), (iii) Officer's Certificate of the
Servicer described in Section 3.11(b), (iv) annual accountants' report
pursuant to Section
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3.12,(v) statement to Certificateholders pursuant to Section 4.10(a),
(vi) Trustee's Certificate delivered by the Trustee pursuant to
Section 9.02 or 9.03 and (vii) other report it may receive pursuant to
this Agreement at its address specified in Section 11.05 or in this
Agreement.
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ARTICLE IV
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Accounts.
(a) Servicer shall establish the Accounts in the name of the
Trustee for the benefit of the Certificateholders. Except as otherwise
provided in this Agreement, each Account shall be an account initially
established with the Trustee and maintained with the Trustee so long as
(i) the commercial paper or other short-term unsecured debt obligations
of the Trustee have the Required Rating, or (ii) such Account is a
segregated trust account located in the corporate trust department of
the Trustee bearing a designation clearly indicating that the funds
deposited therein (other than interest or investment earnings thereon)
are held in trust for the benefit of the Certificateholders, and the
Trustee has a long-term deposit rating from Moody's (so long as Moody's
is a Rating Agency) of at least Baa3 (or such lower rating as Moody's
shall approve in writing) and corporate trust powers under applicable
federal and state laws and is organized under the laws of the United
States or any state thereof, the District of Columbia or the
Commonwealth of Puerto Rico. Except as otherwise provided in this
Agreement, in the event that the Trustee no longer meets either of the
foregoing requirements, then the Servicer shall, with the Trustee's
assistance as necessary, cause the Accounts to be moved to a bank or
trust company that satisfies either of such requirements.
(b) For so long as the depository institution or trust
company then maintaining the Accounts meets the requirements of Section
4.01(a)(i) or (a)(ii), all amounts held in the Accounts shall, to the
extent permitted by applicable laws, rules and regulations, be
invested, as directed in writing by the Servicer, in Eligible
Investments; otherwise such amounts shall be maintained in cash. Such
Investments shall not be sold or disposed of prior to their maturity.
Earnings on investment of funds in the Accounts (net of losses and
investment expenses) shall be paid to the Servicer and any losses and
investment expenses shall be charged against the funds on deposit in
the related Account.
(c) For so long as Bankers Trust Company is the Trustee,
the Accounts shall be maintained with the Trustee as described in
clause (ii) of the second sentence of Section 4.01(a). In the event
that (i) the long-term debt rating of the Trustee does not satisfy
clause (ii) of the second sentence of Section 4.01(a) and clause (B) of
the second sentence of Section 4.07(a)(i) or (ii) Moody's informs the
parties hereto that the first sentence of this Section shall no longer
be operative, the Servicer shall, with the assistance of the Trustee as
necessary, cause (1) the Collection Account and the Payahead Account to
be moved to an institution or an account otherwise satisfying the
requirements of Section 4.01(a) and (2) the Reserve Fund to be moved to
an institution or accounts otherwise satisfying the requirements of
Section 4.07(a)(i).
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SECTION 4.02 Collections.
(a) Except as otherwise provided in this Agreement, the
Servicer shall remit daily to the Collection Account all payments
received by or on behalf of the Obligors on or in respect of the
Receivables (other than, in the case of Precomputed Receivables,
payments constituting Payments Ahead) and all Net Liquidation Proceeds
within two Business Days after receipt thereof. Notwithstanding the
foregoing, for so long as (i) TMCC is the Servicer, (ii) either (a)
TMCC's short-term unsecured debt is rated P-1 by Moody's and A-1 by
Standard & Poor's (so long as Moody's and Standard & Poor's are Rating
Agencies), or (b) certain arrangements are made that have been
approved in writing by each Rating Agency and (iii) an Event of
Default shall not have occurred and be continuing (collectively, the
"Monthly Remittance Conditions"), the Servicer shall not be required
to remit such collections to the Collection Account on the foregoing
daily basis but shall be entitled to retain such collections, without
segregation from its other funds, until the Business Day before each
Distribution Date at which time the Servicer shall remit all such
collections in respect of the related Collection Period to the
Collection Account in immediately available funds. Commencing with
the first day of the first Collection Period that begins at least two
Business Days after the day on which any Monthly Remittance Condition
ceases to be satisfied and for so long as any Monthly Remittance
Conditions is not satisfied, all collections then held by the Servicer
shall be immediately deposited into the Collection Account and all
future collections on or in respect of the Receivables and all Net
Liquidation Proceeds shall be remitted by the Servicer to the
Collection Account on a daily basis within two Business Days after
receipt thereof.
(b) Except as otherwise provided in this Agreement, the
Servicer shall deposit all Payments Ahead in the Collection Account
within two Business Days after receipt thereof, which Payments Ahead
shall be transferred to the Payahead Account pursuant to Section
4.06(a)(ii). Notwithstanding the foregoing, so long as all Monthly
Remittance Conditions are satisfied, the Servicer will not be required
to deposit Payments Ahead in the Collection Account within two
Business Days after receipt thereof but shall be entitled to retain
such Payments Ahead, without segregation from its other funds, until
such time as the Servicer shall be required to remit Applied Payments
Ahead to the Collection Account pursuant to Section 4.06(a)(ii).
Commencing with the first day of the first Collection Period that
begins at least two Business Days after the day on which any Monthly
Remittance Condition ceases to be satisfied and for so long as all
Monthly Remittance Conditions are not satisfied, all Payments Ahead
then held by the Servicer shall be immediately deposited into the
Collection Account and all future Payments Ahead shall be remitted by
the Servicer to the Collection Account within two Business Days after
receipt thereof.
(c) The Servicer shall give the Trustee and each Rating
Agency written notice of the failure of any Monthly Remittance
Condition (and any subsequent curing of a failed Monthly Remittance
Condition) as soon as practical after the occurrence thereof.
Notwithstanding the failure of any Monthly Remittance
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Condition, the Servicer may utilize an alternative collection or
Payment Ahead remittance schedule (which may be the remittance
schedule previously utilized prior to the failure of such Monthly
Remittance Condition), if the Servicer provides to the Trustee written
confirmation from each Rating Agency that such alternative remittance
schedule will not result in the qualification, reduction or withdrawal
of the rating then assigned to any Class of Rated Certificates.
SECTION 4.03 Application of Collections. As of the Business Day
immediately preceding the related Distribution Date, all collections for the
related Collection Period shall be applied by the Servicer as follows:
(a) With respect to each Receivable (other than an
Administrative Receivable or a Warranty Receivable), payments made by
or on behalf of the Obligor which are not Supplemental Servicing Fees
shall be applied first to reimburse the Servicer for Outstanding
Advances made with respect to such Receivable (each such payment, an
"Overdue Payment"). Next, the amount of any payment in excess of
Supplemental Servicing Fees and Outstanding Advances with respect to
such Receivable shall be applied to the Scheduled Payment with respect
to such Receivable. If the amount of such payment remaining after the
applications described in the two preceding sentences (i) equals
(together with any Deferred Prepayment) the unpaid principal balance
of such Receivable, it shall be applied to prepay the principal
balance of such Receivable, or (ii) is less than the unpaid principal
balance of such Receivable, it shall constitute an Excess Payment with
respect to such Receivable.
(b) With respect to each Administrative Receivable and
Warranty Receivable, payments made by or on behalf of the Obligor
shall be applied in the same manner, except that any Released
Administrative Amount or Released Warranty Amount shall be remitted to
the Servicer or the Seller, as applicable. A Warranty Purchase
Payment or an Administrative Purchase Payment shall be applied to
reduce Outstanding Advances and such Warranty Purchase Payment or
Administrative Purchase Payment, as applicable, shall be applied to
the Scheduled Payment, in each case to the extent that the payments by
the Obligor shall be insufficient, and then to prepay the unpaid
principal balance of such Receivable in full.
SECTION 4.04 Advances.
(a) As of last day of a Collection Period, if the
payments during such Collection Period by or on behalf of the Obligor
on or in respect of a Precomputed Receivable (other than an
Administrative Receivable or a Warranty Receivable) after application
under Section 4.03(a) shall be less than the Scheduled Payment
(determined as of the Closing Date), whether as a result of any
modification or extension granted to the Obligor or otherwise, then
the Deferred Prepayment, if any, with respect to such Precomputed
Receivable shall be applied by the Servicer to the extent of the
shortfall, and such Deferred Prepayment shall be reduced accordingly.
Subject to the provisions of the last sentence of this paragraph, the
Servicer shall deposit an amount equal to such shortfall (each, a
"Precomputed Advance") in the Collection Account on the Business Day
immediately preceding the related Distribution Date. In addition, as
of last day of a Collection Period, if the payments during such
Collection Period by or on behalf of the Obligor on or in respect of a
Simple Interest Receivable (other than an Administrative Receivable or
a Warranty Receivable) after
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application under Section 4.03(a) shall be less than the Scheduled
Payment (determined as of the Closing Date), whether as a result of
any modification or extension granted to the Obligor or otherwise,
then an amount equal to the product of the principal balance of such
Receivable as of the first day of the related Collection Period and
one- twelfth of its Annual Percentage Rate minus the amount of
interest actually received on such Receivable during the Collection
Period (each, a "Simple Interest Advance") shall be deposited by the
Servicer into the Collection Account on the Business Day immediately
preceding the related Distribution Date. If such a calculation in
respect of a Simple Interest Receivable results in a negative number,
an amount equal to such negative amount shall be paid to the Servicer
in reimbursement of any Outstanding Advances in respect of Simple
Interest Receivables. In addition, in the event that a Simple
Interest Receivable becomes a Liquidated Receivable, the amount of
accrued and unpaid interest thereon (but not including interest for
the current Collection Period) shall, up to the amount of Outstanding
Advances in respect of Simple Interest Receivables in respect thereof,
be withdrawn from the Collection Account and paid to the Servicer in
reimbursement of such Outstanding Advances. No Advances will be made
with respect to the Principal Balance of Simple Interest Receivables.
The Servicer shall not be required to make an Advance (other than a
Simple Interest Advance in respect of an interest shortfall arising
from the Prepayment of a Simple Interest Receivable) to the extent
that the Servicer, in its sole discretion, shall determine that such
Advance is unlikely to be recovered from subsequent payments made by
or on behalf of the related Obligor, Liquidation Proceeds, by the
Administrative Purchase Payment or by the Warranty Purchase Payment
with respect to such Receivable or otherwise.
(b) The Servicer shall be entitled to reimbursement for
Outstanding Advances, without interest, with respect to a Receivable
from the following sources with respect to such Receivable: (i)
subsequent payments made by or on behalf of the related Obligor, (ii)
Liquidation Proceeds, (iii) the Administrative Purchase Payment, and
(iv) the Warranty Purchase Payment; provided, however, that in the
case of Advances made pursuant to Section 3.02, the Servicer shall be
entitled to reimbursement only from amounts received in respect of
such Receivable that are in excess of the amount of the Scheduled
Payment in the related Collection Period.
(c) To the extent that during any Collection Period any
funds described above in Section 4.04(b) with respect to a Receivable
as to which the Servicer previously has made an unreimbursed Advance
are received by the Trustee or the Servicer, and the Servicer
determines that any Outstanding Advances with respect to such
Receivable are unlikely to be recovered from payments made on or with
respect to such Receivable (each, a "Nonrecoverable Advance"), then,
on the related Distribution Date, upon the Servicer providing the
Seller and the Trustee with an Officer's Certificate setting forth the
basis for its determination of any such amount, the Trustee shall
promptly remit to the Servicer (i) from Available Interest an amount
equal to the portion of such Nonrecoverable Advance allocable to
interest and (ii) from Available Principal an amount equal to the
portion of such Nonrecoverable Advance allocable to principal, in each
case without interest, in accordance with Section 4.06(c)(i). In lieu
of causing the Trustee to remit any such amounts or the
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amounts described in clauses (i) through (iv) in Section 4.04(b), the
Servicer may deduct such amounts from deposits otherwise to be made
into the Collection Account.
SECTION 4.05 Additional Deposits.
(a) The following additional deposits shall be made to
the Collection Account: (i) the Seller shall remit the aggregate
Warranty Purchase Payments with respect to Warranty Receivables
pursuant to Section 2.05 or the amount required upon the optional
termination of the Trust by the Seller or the Servicer, or any
successor to the Servicer, pursuant to Section 10.02; (ii) the
Servicer shall remit (A) the amount required to be remitted in respect
of certain full Prepayments pursuant to Section 3.03, (B) the
aggregate Advances pursuant to Sections 3.02, 3.08 and 4.04(a), and
(C) the aggregate Administrative Purchase Payments with respect to
Administrative Receivables pursuant to Sections 3.02 and 3.08; and
(iii) the Trustee shall transfer the amounts described in Sections
4.06 and 4.07(b) from the Reserve Fund to the Collection Account
pursuant to Section 4.07(b).
(b) All deposits required to be made pursuant to this
Section by the Seller or the Servicer, as the case may be, may be made
in the form of a single deposit and shall be made in immediately
available funds, no later than 5:00 P.M., New York City time, on the
Business Day immediately preceding the related Distribution Date. At
the written direction of the Servicer, the Trustee shall invest such
amounts in Eligible Investments maturing not later than 3:00 P.M. New
York City Time, on the related Distribution Date.
SECTION 4.06 Distributions.
(a) On each Distribution Date (or, if both the Accounts
are not maintained by the Trustee, on the Business Day immediately
preceding each Distribution Date), the Trustee shall cause to be made
the following transfers and distributions in immediately available
funds in the amounts set forth in the Servicer's Certificate for such
Distribution Date:
(i) from the Payahead Account (or directly from
the Servicer in the case of Payments Ahead held by the
Servicer pursuant to Section 4.02(b) or (c)) to the Collection
Account, the aggregate Applied Payments Ahead; and
(ii) if the Servicer is not permitted to hold
Payments Ahead pursuant to Section 4.02(b) or (c), from the
Collection Account to the Payahead Account, the aggregate
Payments Ahead for the related Collection Period.
(b) On each Determination Date, the Servicer shall
calculate the Available Interest, the Available Principal, the Class A
Distributable Amount, the Class B Distributable Amount, the Class C
Distributable Amount, the amount to be distributed to
Certificateholders of each Class and all other distributions to be
made on the related Distribution Date.
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(c) The rights of the Class B Certificateholders and
Class C Certificateholders to receive distributions in respect of the
Class B Certificates and Class C Certificates, respectively, shall be
and hereby are subordinated to the rights of the Class A
Certificateholders to receive distributions in respect of the Class A
Certificates to the extent provided in this Section. In addition, the
rights of the Class C Certificateholders to receive distributions in
respect of the Class C Certificate shall be and hereby are
subordinated to the rights of the Class B Certificateholders to
receive distributions in respect of the Class B Certificates to the
extent provided in this Section. On each Distribution Date, the
Trustee shall make the following distributions from the Collection
Account in the following order of priority and in the amounts set
forth in the Servicer's Certificate for such Distribution Date;
provided, however, that except as otherwise provided in Sections
4.05(a) or 4.06(a), such distributions shall be made only from those
funds deposited in the Collection Account for the related Collection
Period:
(i) to the Servicer from Available Interest or
Available Principal, any payments in respect of Nonrecoverable
Advances required pursuant to Section 4.04(c);
(ii) to the Servicer, from Available Interest
(after giving effect to any reduction in Available Interest
described in clause (i) above), the Total Servicing Fee
(including any unpaid Total Servicing Fees from one or more
prior Collection Periods);
(iii) to the Class A Certificateholders of record,
from Available Interest (after giving effect to the reduction
in Available Interest described in clauses (i) and (ii)
above), an amount equal to the sum of the Class A Interest
Distributable Amount and any outstanding Class A Interest
Carryover Shortfall from the immediately preceding
Distribution Date and, if such Available Interest is
insufficient, the Class A Certificateholders will receive such
shortfall first, from the Class C Percentage of Available
Principal (after giving effect to the reduction thereof
described in clause (i) above), second, from the Class B
Percentage of Available Principal (after giving effect to the
reduction thereof described in clause (i) above), and third,
if such amounts are still insufficient, from monies on deposit
in the Reserve Fund;
(iv) to the Class B Certificateholders of record,
from Available Interest (after giving effect to the reduction
in Available Interest described in clauses (i) through (iii)
above), an amount equal to the sum of the Class B Interest
Distributable Amount and any outstanding Class B Interest
Carryover Shortfall from the immediately preceding
Distribution Date and, if such Available Interest is
insufficient, the Class B Certificateholders will receive such
shortfall first, from the Class C Percentage of Available
Principal (after giving effect to the reduction thereof
described in clauses (i) and (iii) above), and second, if such
amounts are still insufficient, from monies on deposit in the
Reserve Fund;
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(v) to the Class C Certificateholders of record,
from Available Interest (after giving effect to the reduction
in Available Interest described in clauses (i) through (iv)
above), an amount equal to the sum of the Class C Interest
Distributable Amount and any outstanding Class C Interest
Carryover Shortfall from the immediately preceding
Distribution Date and, if such Available Interest is
insufficient, the Class C Certificateholders will receive such
shortfall from monies on deposit in the Reserve Fund;
(vi) to the Class A Certificateholders of record,
from Available Principal (after giving effect to any reduction
in Available Principal described in clauses (i), (iii) and
(iv) above), an amount equal to the sum of the Class A
Principal Distributable Amount and any outstanding Class A
Principal Carryover Shortfall from the immediately preceding
Distribution Date and, if such Available Principal is
insufficient, the Class A Certificateholders will receive such
shortfall first, from Available Interest (after giving effect
to the reduction in Available Interest described in clauses
(i) through (v) above) and second, if such amounts are still
insufficient, from monies on deposit in the Reserve Fund;
(vii) to the Class B Certificateholders of record,
from Available Principal (after giving effect to the reduction
in Available Principal described in clauses (i), (iii), (iv)
and (vi) above), an amount equal to the sum of the Class B
Principal Distributable Amount and any outstanding Class B
Principal Carryover Shortfall from the immediately preceding
Distribution Date and, if such Available Principal is
insufficient, the Class B Certificateholders will receive such
shortfall first, from Available Interest (after giving effect
to the reduction in Available Interest described in clauses
(i) through (vi) above) and second, if such amounts are still
insufficient, from monies on deposit in the Reserve Fund; and
(viii) to the Class C Certificateholders of record,
from Available Principal (after giving effect to the reduction
in Available Principal described in clauses (i), (iii), (iv),
(vi) and (vii) above), an amount equal to the sum of the Class
C Principal Distributable Amount and any outstanding Class C
Principal Carryover Shortfall from the immediately preceding
Distribution Date and, if such Available Principal is
insufficient, the Class C Certificateholders will receive such
shortfall first, from Available Interest (after giving effect
to the reduction in Available Interest described in clauses (i)
through (vii) above) and second, if such amounts are still
insufficient, from monies on deposit in the Reserve Fund.
Notwithstanding the reduction of the Class A Certificate Balance, Class B
Certificate Balance or Class C Certificate Balance to zero, on any Distribution
Date prior the Distribution Date on which the final payment and retirement of
the related Certificates will occur, the Trustee will distribute to the
Certificateholders of such Class shall be entitled to receive Excess Amounts up
to the amount of any outstanding unreimbursed Class A Interest Carryover
Shortfalls and Class A Principal Carryover Shortfalls, any Class B Interest
Carryover Shortfalls and Class B Principal Carryover Shortfalls or
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any Class C Interest Carryover Shortfalls and Class C Principal Carryover
Shortfalls, as the case may be, as and to the extent described above.
(d) On each Distribution Date, the Trustee shall deposit any
Excess Amounts not applied to reimburse shortfalls as described above into the
Reserve Fund until the amount on deposit therein equals the Specified Reserve
Fund Balance and shall distribute the remainder, if any, to the Seller, in such
amounts as are set forth in the Servicer's Certificate.
(e) Subject to Section 10.01 respecting the final payment upon
retirement of each Certificate, the Servicer shall on each Distribution Date
instruct the Trustee to distribute to each Certificateholder of any Class of
record on the related Record Date by check mailed to such Certificateholder at
the address of such Holder appearing in the Certificate Register (or, if DTC,
its nominee or a Clearing Agency is the relevant Certificateholder, by wire
transfer of immediately available funds or pursuant to other arrangements), the
amount to be distributed to such Certificateholder pursuant to such Holder's
Certificates.
SECTION 4.07 Reserve Fund.
(a) (i) In order to effectuate the subordination
provided for herein and to assure that sufficient amounts to
make required distributions to Certificateholders will be
available, the Servicer shall establish and maintain with the
Trustee a trust account: the "Reserve Fund" which will include
the money and other property deposited and held therein
pursuant to Section 4.06(d) and this Section. Except as
otherwise provided in this Agreement, the Reserve Fund shall
(A) be a segregated trust account initially established with
the Trustee and maintained with the Trustee so long as the
commercial paper or other short-term unsecured debt
obligations of the Trustee have the Required Rating and (B) in
the event that the commercial paper or other short-term
unsecured debt obligations of the Trustee no longer have the
Required Rating, the Servicer shall, with the assistance of
the Trustee as necessary, cause the Reserve Fund to be moved
to (1) a segregated deposit account in a bank or trust
company, the commercial paper or other short-term unsecured
debt obligations of which shall have the Required Rating, or
(2) a segregated trust account bearing a designation clearly
indicating the funds deposited therein are held in trust for
the benefit of the Class A Certificateholders, the Class B
Certificateholders and the Class C Certificateholders located
in the corporate trust department of a depository institution
or trust company (which may include the Trustee) having a
long-term deposit rating from Moody's (so long as Moody's is a
Rating Agency) of at least Baa3 (or such lower rating as
Moody's shall approve in writing) and corporate trust powers
under applicable federal and state laws and organized under
the laws of the United States or any state thereof, the
District of Columbia or the Commonwealth of Puerto Rico.
On or prior to the Closing Date, the Seller shall
deposit an amount equal to the Reserve Fund Initial Deposit
into the Reserve Fund. The Reserve Fund shall not be part of
the Trust but instead will be held for the benefit of the
Holders of the Class
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A Certificates, the Class B Certificates and the Class C
Certificates. The Seller hereby acknowledges that the Reserve
Fund Initial Deposit (and any investment earnings thereon) are
owned directly by it, and the Seller hereby agrees to treat
the same as its assets (and earnings) for federal income tax
and all other purposes. On each Distribution Date, Excess
Amounts will be deposited into the Reserve Fund by the Trustee
to the extent set forth in Section 4.06(d).
(ii) In order to give effect to the subordination
provided for herein and to assure availability of the amounts
maintained in the Reserve Fund, the Seller hereby sells,
conveys and transfers to the Trustee, as collateral agent, and
its successors and assigns, the Reserve Fund Initial Deposit
and all proceeds thereof and hereby pledges to the Trustee as
collateral agent, and its successors and assigns, all other
amounts deposited in or credited to the Reserve Fund from time
to time under this Agreement, all earnings and distributions
thereon and proceeds thereof (other than proceeds constituting
interest or net investment earnings attributable to the
investment of the Reserve Fund at the direction of the
Servicer) subject, however, to the limitations set forth
below, and solely for the purpose of securing and providing
for payment of the Class A, Class B and Class C Distributable
Amounts, together with any Class A, Class B and Class C
Interest Carryover Shortfalls and Class A, Class B and Class C
Principal Carryover Shortfalls, in accordance with Section
4.06 and this Section to have and to hold all the aforesaid
property, rights and privileges unto the Trustee, its
successors and assigns, in trust for the uses and purposes,
and subject to the terms and provisions, set forth in this
Section. The Trustee hereby acknowledges such transfer and
accepts the trust hereunder and shall hold and distribute the
Reserve Fund in accordance with the terms and provisions of
this Section.
(b) Consistent with the limited purposes for which such
trusts are granted, on each Distribution Date the amount on deposit in
the Reserve Fund shall be available for, and applied to make,
distributions as provided in Section 4.06. In addition, on each
Distribution Date on which the amount on deposit in the Reserve Fund
(after giving effect to all deposits thereto or withdrawals therefrom
on such Distribution Date) is greater than the Specified Reserve Fund
Balance, the Trustee will distribute any remaining amounts to the
Seller. Upon any such distribution to the Seller, the
Certificateholders will have no further rights in, or claims to, such
amount.
(c) (i) Amounts held in the Reserve Fund shall be
invested in the manner specified in Section 4.01(b). Such
investments shall not be sold or disposed of prior to their
maturity. All such investments shall be made in the name of
the Trustee, its Financial Intermediary or its nominee, in
either case as collateral agent, and all income and gain
realized thereon shall be solely for the benefit of the Seller
and shall be payable by the Trustee to the Seller on each
Distribution Date. Realized losses, if any, on investment of
the Reserve Fund shall be charged first against undistributed
investment earnings attributable to the Reserve Fund and then
against the Reserve Fund.
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(ii) With respect to the Reserve Fund, the Seller and the
Trustee agree that:
(A) any Reserve Fund property that is held in
deposit accounts shall be held solely in the name of the
Trustee, as collateral agent, at the Trustee (in a segregated
trust account if the deposits of the Trustee do not have the
Required Rating) or at one or more depository institutions
which are eligible to maintain the Reserve Fund as described
in Section 4.07(a)(i); such deposit account shall be subject
to the exclusive custody and control of the Trustee, and the
Trustee shall have sole signature authority with respect
thereto;
(B) any Reserve Fund property that constitutes
Physical Property shall be delivered to the Trustee, as
collateral agent, in accordance with paragraph (i) of the
definition of the term "Delivery" and shall be held, pending
maturity or disposition, solely by the Trustee, as collateral
agent or a financial intermediary (as such term is defined in
Section 8-313(4) of the UCC) acting solely for the Trustee, as
collateral agent;
(C) any Reserve Fund property that is a
book-entry security held through the Federal Reserve pursuant
to federal book-entry regulations shall be delivered in
accordance with paragraph (ii) of the definition of the term
"Delivery" and shall be maintained by the Trustee, as
collateral agent, pending maturity or disposition, through
continued book-entry registration of such Reserve Fund as
described in such paragraph; and
(D) any Reserve Fund property that is an
"uncertificated security" under Article Eight of the UCC and
that is not governed by clause (C) above shall be delivered to
the Trustee, as collateral agent, in accordance with paragraph
(iii) of the definition of the term "Delivery" and shall be
maintained by the Trustee, as collateral agent, pending
maturity or disposition, through continued registration of the
Trustee's or its Financial Intermediary's (or its custodian's
or its nominee's) ownership of such security, in its capacity
as collateral agent.
Effective upon Delivery of the Reserve Fund property in the form of
Physical Property, book-entry securities or uncertificated securities,
the Trustee shall be deemed to have purchased such Reserve Fund
property for value, in good faith and without notice of any adverse
claim thereto.
(iii) Each of the Seller and the Servicer agrees to take or
cause to be taken such further actions, to execute, deliver and file
or cause to be executed, delivered and filed such further documents
and instruments (including, without limitation, any UCC financing
statements or this Agreement) as may be determined to be necessary, in
an Opinion of Counsel to the Seller delivered to the Trustee, in order
to perfect the
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interests created by this Section and otherwise fully to effectuate
the purposes, terms and conditions of this Section. The Seller and/or
the Servicer, as the case may be, shall:
(A) promptly execute, deliver and file any
financing statements, amendments, continuation statements,
assignments, certificates and other documents with respect to
such interests and perform all such other acts as may be
necessary in order to perfect or to maintain the perfection of
the Trustee's security interest; and
(B) make the necessary filings of financing
statements or amendments thereto within ten Business Days
after the occurrence of any of the following: (1) any change
in their respective corporate names or any trade names, (2)
any change in the location of their respective chief executive
offices or principal places of business and (3) any merger or
consolidation or other change in their respective identities
or corporate structures; and shall promptly notify the Trustee
of any such filings.
(iv) The Trustee shall not enter into any subordination or
intercreditor agreement with respect to the Reserve Fund.
(d) Upon termination of the Trust pursuant to Section 10.01, any
amounts on deposit in the Reserve Fund, after payment of all amounts due to
the Certificateholders, shall be paid to the Seller.
SECTION 4.08 [Reserved]
SECTION 4.09 Net Deposits. For so long as TMCC shall be the
Servicer, the Seller, the Servicer and the Trustee may make any remittances
pursuant to this Article net of amounts to be distributed by the applicable
recipient to such remitting party. Nonetheless, each such party shall account
for all of the above described remittances and distributions as if the amounts
were deposited and/or transferred separately.
SECTION 4.10 Statements to Certificateholders.
(a) On each Distribution Date, the Trustee shall include with each
distribution to each Certificateholder of record the Servicer's Certificate
furnished pursuant to Section 3.10, setting forth for the related Collection
Period the following information as of the related Record Date or such
Distribution Date, as the case may be:
(i) the amount of such distribution allocable to
principal on each Class of Certificates;
(ii) the amount of such distribution allocable to
interest on each Class of Certificates;
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(iii) the Pool Balance as of the close of business on the
last day of such Collection Period;
(iv) the amount of the Basic Servicing Fee paid to the
Servicer with respect to the related Collection Period and the amount
of any Supplemental Servicing Fee received by the Servicer with
respect to such Collection Period;
(v) the amount of the Interest and Principal Carryover
Shortfalls with respect to each Class of Certificates, if any, on such
Distribution Date and the change in such amounts from the immediately
preceding Distribution Date;
(vi) the Class A Certificate Balance, the Class B
Certificate Balance, the Class C Certificate Balance and the Pool
Factor with respect to each Class of Certificates as of such
Distribution Date, in each case after giving effect to distributions
in respect of principal reported under clause (i) above;
(vii) the amount otherwise distributable to the Class B
Certificateholders and Class C Certificateholders that is distributed
to the Class A Certificateholders on such Distribution Date, and the
amount otherwise distributable to the Class C Certificateholders that
is distributed to the Class B Certificateholders on such Distribution
Date;
(viii) the balance on deposit in the Reserve Fund, after
giving effect to distributions made on such Distribution Date, and the
change in such balance from the immediately preceding Distribution
Date;
(ix) the aggregate amount of Payments Ahead on deposit in
the Payahead Account or held by the Servicer and the change in such
amount from the immediately preceding Distribution Date;
(x) the amount of Outstanding Advances made in respect of
such Collection Period and the amount of unreimbursed Advances on such
Distribution Date; and
(xi) the Specified Reserve Fund Balance and the amount on
deposit in the Reserve Fund after giving effect to all distributions,
deposits and withdrawals made on such Distribution Date.
(b) Within a reasonable period of time after the end of each
calendar year, but not later than the latest date permitted by law, the Trustee
shall mail a statement or statements prepared by the Servicer to each Person
who at any time during such calendar year shall have been a Holder of a Class
A, Class B or Class C Certificate, that reiterates the amounts set forth in
clauses (i), (ii), (iv)
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and (v) above for each Distribution Date during the preceding calendar year and
that specifies in the aggregate the amounts set forth in clauses (i), (ii),
(iv) and (v) above for such calendar year for purposes of such
Certificateholder's preparation of federal income tax returns. In addition,
the Servicer shall furnish to the Trustee for distribution to each such Person
at such time any other information that the Servicer actually knows is
necessary under applicable law for the preparation of such income tax returns.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates. The Class A Certificates, the Class B
Certificates and the Class C Certificates shall be substantially in the form
attached hereto as Exhibit C, Exhibit D or Exhibit E, as the case may be. The
Class A Certificates and Class B Certificates shall be issuable in minimum
denominations of $1,000 and integral multiples in excess thereof. The Class C
Certificates shall be issuable in minimum denominations of $250,000 and
integral multiples of $1,000 in excess thereof, provided that one Class C
Certificate, may be issued in a denomination that includes any remaining
portion of the Original Class C Certificate Balance, respectively (each, a
"Residual Certificate"). The Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of a Responsible Officer and
authenticated on behalf of the Trustee by the manual or facsimile signature of
a Responsible Officer. Certificates bearing the manual or facsimile signatures
of individuals who were, at the time when such signatures were affixed,
authorized to sign on behalf of the Trustee shall be valid and binding
obligations of the Trust, notwithstanding that such individuals or any of them
have ceased to be so authorized prior to the authentication and delivery of
such Certificates or did not hold such offices at the date of such
Certificates. All Certificates shall be dated the date of their
authentication.
SECTION 5.02 Authentication and Delivery of Certificates. The
Trustee shall cause to be authenticated and delivered to or upon the order of
the Seller, in exchange for the Receivables and the other assets of the Trust,
simultaneously with the sale, assignment and transfer to the Trust of the
Receivables, and the constructive delivery to the Trustee on behalf of the
Trust of the Receivable Files and the other components of the Trust,
Certificates duly authenticated by the Trustee, in authorized denominations
equaling in the aggregate the Original Pool Balance and evidencing the entire
ownership of the Trust. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form set forth
in the form of such Certificate attached hereto as Exhibit C, Exhibit D or
Exhibit E, as the case may be, executed by the Trustee by manual or facsimile
signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered under this Agreement.
SECTION 5.03 Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall maintain a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Certificate Registrar shall provide for the registration of Certificates and
transfers and exchanges of Certificates as provided in this Agreement. The
Trustee is hereby initially appointed Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as provided
in this Agreement In the event that, subsequent to the Closing Date, the
Trustee notifies the Servicer that it is unable to act as Certificate Registrar,
the Servicer shall appoint another bank or trust company, having an office or
agency located in the Borough of Manhattan, The City of New York, agreeing to
act in accordance with the provisions of this Agreement applicable to it, and
otherwise acceptable to the Trustee, to act as successor Certificate Registrar
under this Agreement.
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(b) Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Trustee on behalf of the Trust shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class in
authorized denominations of a like aggregate principal amount.
(c) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class of authorized denominations
of a like aggregate principal amount, upon surrender of the Certificates to be
exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange the Trustee on behalf of the Trust shall execute,
authenticate and deliver the Certificates that the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the Holder thereof or his attorney duly authorized in
writing.
(d) No service or other charge shall be made for any registration
of transfer or exchange of Certificates by the Trustee or the Servicer, but the
Trustee may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
(e) All Certificates surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed by the Trustee.
(f) Registration of transfer and sale of the Class B Certificates
and Class C Certificates shall be subject to the further conditions specified in
Section 5.04.
(g) Each purchaser of a Class A Certificate or of a beneficial
interest therein that is a Plan (as defined in Section 5.04(a)(i)) shall be
deemed to have represented and warranted, by accepting such Certificate or
beneficial interest, that such purchaser is an "accredited investor" as defined
in Rule 501(a) under the Securities Act.
SECTION 5.04 Registration of Transfer and Exchange of Class B
Certificates and Class C Certificates.
(a) No transfer of a Class B Certificate or Class C Certificate, or
beneficial interest therein, shall be made unless the Trustee shall have
received a representation from the transferee thereof substantially in the form
of Exhibit F to the effect that:
(i) such transferee (A) is not an employee
benefit plan or arrangement subject to Section 406 of ERISA or
a plan subject to Section 4975 of the Code (a "Plan"), nor a
person acting on behalf of a Plan nor using the assets of a
Plan to effect such transfer, and (B) is not an insurance
company purchasing a Class B Certificate or Class C
Certificate with funds contained in an "insurance company
general account" or "insurance company separate account" (as
defined in Section V(e) of
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Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60"))
as to which there is a Plan with respect to which the amount
of such general account's reserves and liabilities for the
contracts held by or on behalf of such Plan and all other
Plans maintained by the same employer (or affiliate thereof as
defined in Section V(a)(1) of PTCE 95-60) or by the same
employee organization exceed 10% of the total of all reserves
and liabilities of such general account (as such amounts are
determined under Section I(a) of PTCE 95-60) at the date of
acquisition; or
(ii) such transferee is a Plan or a person acting
on behalf of a Plan or using the assets of a Plan to effect
such transfer, or is an insurance company purchasing a Class B
Certificate or Class C Certificate with funds contained in an
insurance company general account or insurance company
separate account, having attached thereto an opinion of
counsel satisfactory to the Trustee, which opinion shall not
be an expense of either the Trustee or the Trust Fund,
addressed to the Trustee and the Seller, to the effect that
the purchase or holding of such Class B Certificate or Class C
Certificate will not result in the assets of the Trust Fund
being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code and will not
subject the Trustee to any obligation in addition to those
expressly undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to a Class B
Certificate or Class C Certificate that is a Book- Entry Certificate,
the representations contained in clause (i) above shall be deemed to
have been made to the Trustee by the transferee's (including an
initial acquiror's) acceptance of such Certificate. Notwithstanding
anything else to the contrary herein, any purported transfer of a
Class B Certificate or Class C Certificate, or a beneficial interest
therein, to or on behalf of an employee benefit plan subject to ERISA
or to the Code or a person acting on behalf of a Plan or using the
assets of a Plan to effect such transfer or to an insurance company
purchasing with funds from a general account not exempt pursuant to
PTCE 95-60 without the delivery to the Trustee of an opinion of
counsel described in clause (ii) above shall be void and of no effect.
(b) To the extent permitted under applicable law (including, but
not limited to, ERISA), the Trustee shall be under no liability to any Person
for any registration of transfer of any Class B Certificate or Class C
Certificate that is in fact not permitted by Section 5.03(a) or for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of the Pooling and
Servicing Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements.
(c) No transfer of a Class C Certificate or beneficial interest
therein shall be made outside of the PORTAL system unless, as evidenced by
delivery of an Opinion of Counsel to such effect, such transfer is not subject
to registration under the Securities Act or any applicable state securities
laws. Any such Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Trust, the Seller or the Servicer. The Holder of a Class C
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Seller and the Servicer against any liability that
may result if the transfer is not so exempt or is not made in accordance with
the
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Securities Act and such state laws. Neither the Seller, the Servicer nor the
Trustee or the Trust is under an obligation to register the Class C
Certificates under the Securities Act or any state securities law.
(d) The Class B Certificates and Class C Certificates, this
Agreement and related documents may be amended or supplemented from time to
time to modify restrictions on and procedures for resale and other transfer of
such Class B Certificates and Class C Certificate to reflect any change in
applicable law or regulation (or the interpretation thereof) or practices
relating to the resale or transfers of restricted securities generally.
SECTION 5.05 Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to
the Certificate Registrar and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
that such Certificate has been acquired by a bona fide purchaser, the Trustee
on behalf of the Trust shall execute and the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and fractional undivided
interest. In connection with the issuance of any new Certificate under this
Section, the Trustee may require the payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
If, after the delivery of such replacement Certificate or payment of a
destroyed, lost or stolen Certificate, a bona fide purchaser of the original
Certificate in lieu of which such replacement Certificate was issued presents
for payment such original Certificate, the Seller and the Trustee shall be
entitled to recover such replacement Certificate (or such payment) from the
Person to whom it was delivered or any Person taking such replacement
Certificate from such Person to whom such replacement Certificate was delivered
or any assignee of such Person, except a bona fide purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Seller or the
Trustee in connection therewith.
SECTION 5.06 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee, the Certificate
Registrar and any of their respective agents may treat the Person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 4.06 and for all other purposes
whatsoever, and neither the Trustee, the Certificate Registrar nor any of their
respective agents shall be affected by any notice to the contrary.
SECTION 5.07 Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar shall furnish or cause to be furnished to
the Servicer, within 15 days after receipt by the Certificate Registrar of a
written request therefor from the Servicer, a list of the names and addresses
of the Certificateholders as of the most recent Record Date. If three or more
Certificateholders, or one or more Holders of Class A, Class B or Class C
Certificates evidencing not less than 25% of the Voting Interests thereof
(hereinafter referred to as "Applicants"), apply in writing to the Trustee, and
such application states that the Applicants desire to communicate with other
Certificateholders with
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respect to their rights under this Agreement or under the Certificates and such
application is accompanied by a copy of the communication that such Applicants
propose to transmit, then the Trustee shall, within five Business Days after
the receipt of such application, afford such Applicants access, during normal
business hours, to the current list of Certificateholders. Every
Certificateholder, by receiving and holding a Certificate, agrees with the
Servicer and the Trustee that neither the Servicer nor the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Certificateholders under this Agreement, regardless
of the source from which such information was derived.
SECTION 5.08 Maintenance of Office or Agency. The Trustee shall
maintain in The City of New York, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Trustee in respect of the
Certificates and this Agreement may be served. The Trustee initially shall
designate the Corporate Trust Office as its office for such purposes. The
Trustee shall give prompt written notice to the Seller, the Servicer and to
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
SECTION 5.09 Temporary Certificates. Pending the preparation of
definitive Certificates of any Class, the Trustee, on behalf of the Trust, may
execute, authenticate and deliver, temporary Certificates of any Class that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Certificates of any Class in lieu of which they are issued. If temporary
Certificates of any Class are issued, the Seller will cause definitive
Certificates of any Class to be prepared without unreasonable delay. After the
preparation of definitive Certificates of any Class, the temporary Certificates
of any Class shall be exchangeable for definitive Certificates of any Class
upon surrender of the temporary Certificates of any Class at the office or
agency to be maintained as provided in Section 5.08, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates of any Class, the Trustee on behalf of the Trust shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Certificates of any Class in authorized
denominations. Until so exchanged the temporary Certificates of any Class
shall in all respects be entitled to the same benefits under this Agreement as
definitive Certificates of any Class.
SECTION 5.10 Book-Entry Certificates. The Class A Certificates,
Class B Certificates and Class C Certificates, upon original issuance (except
for the Residual Certificates) initially shall be issued as Book-Entry
Certificates, to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Seller. The certificates delivered to DTC evidencing such
Certificates shall initially be registered on the Certificate Register in the
name of CEDE & CO., the nominee of the initial Clearing Agency, and no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in the Class A,] Class B, or Class C Certificates,
except as provided in Section 5.12. Subject to Section 5.12, unless and until
definitive, fully registered Certificates of any Class (the "Definitive
Certificates") have been issued to Certificate Owners pursuant to Section 5.12:
(i) the provisions of this Section shall be in full force
and effect;
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(ii) the Seller, the Servicer, the Certificate
Registrar and the Trustee may deal with the Clearing Agency
for all purposes (including the making of distributions on the
Certificates and the giving of instructions or directions
hereunder) as the authorized representative of the Certificate
Owners;
(iii) to the extent that the provisions of this
Section conflict with any other provisions of this Agreement,
the provisions of this Section shall control;
(iv) the rights of Certificate Owners shall be
exercised only through the Clearing Agency (or through
procedures established by the Clearing Agency) and shall be
limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the
Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 5.12, the initial
Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Certificates to
such Clearing Agency Participants; and
(v) whenever this Agreement requires or permits
actions to be taken based upon instructions or directions of
Holders of Certificates evidencing a specified percentage of
the Voting Interests of any Class or both Classes the Clearing
Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect
from Certificate Owners and/or Clearing Agency Participants
owning or representing, respectively, such required percentage
of the beneficial interest in such Certificates and has
delivered such instructions to the Trustee.
SECTION 5.11 Notices to Clearing Agency. Whenever notice or other
communication to any Certificateholders is required under this Agreement, other
than to the Holder of a Residual Certificate, unless and until Definitive
Certificates shall have been issued to Certificate Owners pursuant to Section
5.12, the Trustee and the Servicer shall give all such notices and
communications specified herein to be given to Holders of Certificates to the
Clearing Agency.
SECTION 5.12 Definitive Certificates. On the Closing Date, the Class
C Certificate that is a Residual Certificate will be issued in fully registered
form as a Definitive Certificate. If (i)(A) the Seller advises the Trustee in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities as described in the Letter of Representations (a
form of which is attached hereto as Exhibit G) and (B) the Trustee or the
Seller is unable to locate a qualified successor, (ii) the Seller at its
option, advises the Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency, or (iii) after the occurrence of
an Event of Default, Certificate Owners representing in the aggregate not less
than 51% of the voting interests of the Class A Certificates, Class B
Certificates and Class C Certificates, acting as a single Class, advise the
Trustee and the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of the Certificate Owners, then the
Trustee shall notify all Certificate Owners, through the Clearing Agency, of
the occurrence of any such event and of the availability of Definitive
Certificates to
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Certificate Owners requesting the same. Upon surrender to the Trustee of the
Class A Certificates, Class B Certificates or Class C Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates
and deliver such Definitive Certificates in accordance with the instructions of
the Clearing Agency. Neither the Seller, the Certificate Registrar nor the
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates, the Trustee shall recognize the
Holders of the Definitive Certificates as Class A, Class B or Class C
Certificateholders hereunder. The Trustee shall not be liable if the Trustee
or the Seller is unable to locate a qualified successor Clearing Agency.
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ARTICLE VI
THE SELLER
SECTION 6.01 Representations of Seller. The Seller shall make the
following representations on which the Trustee shall rely in accepting the
Receivables in trust and executing and authenticating the Certificates. The
representations shall speak as of the execution and delivery of this Agreement
and shall survive the sale of the Receivables to the Trustee.
(a) 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.
(b) 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.
(c) Power and Authority. The Seller shall have the
corporate power and authority to execute and deliver this Agreement
and to carry out its terms; the Seller shall have full corporate power
and authority to sell and assign the property to be sold and assigned
to and deposited with the Trustee as part of the Trust and shall have
duly authorized such sale and assignment to the Trustee by all
necessary corporate action; and the execution, delivery and
performance of this Agreement shall have been duly authorized by the
Seller by all necessary corporate action.
(d) Valid Sale; Binding Obligations. This Agreement
shall evidence a valid sale, transfer and assignment of the
Receivables, enforceable against creditors of and purchasers from the
Seller; and 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 or other similar laws affecting creditors' rights
generally or by general equity principles.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of
this Agreement 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 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 this Agreement), 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,
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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.
(f) 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 or the Certificates, (ii) seeking to
prevent the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement or the Certificates, or (iv)
relating to the Seller and which might adversely affect the federal
income tax attributes of the Certificates.
SECTION 6.02 Liability of Seller; Indemnities. The Seller shall be
liable in accordance with this Agreement only to the extent of the obligations
in this Agreement specifically undertaken by the Seller in such capacity under
this Agreement and shall have no other obligations or liabilities hereunder.
SECTION 6.03 Merger or Consolidation of, or Assumption of the
Obligations of, Seller; Certain Limitations.
(a) Any corporation (i) into which the Seller may be
merged or consolidated, (ii) which may result from any merger,
conversion or consolidation to which the Seller shall be a party, or
(iii) which may succeed to all or substantially all of the business of
the Seller, which corporation in any of the foregoing cases executes
an agreement of assumption to perform every obligation of the Seller
under this Agreement, shall be the successor to the Seller under this
Agreement without the execution or filing of any document or any
further act on the part of any of the parties to this Agreement,
except that if the Seller in any of the foregoing cases is not the
surviving entity, then the surviving entity shall execute an agreement
of assumption to perform every obligation of the Seller hereunder.
The Seller shall provide notice of any merger, consolidation or
succession pursuant to this Section to each Rating Agency and shall
receive from each Rating Agency a letter to the effect that such
merger, consolidation or succession will not result in a
qualification, downgrading or withdrawal of the then-current ratings
on the Rated Certificates.
(b) (i) Subject to paragraph (ii) below, the
purpose of the Seller shall be to engage in any lawful
activity for which a corporation may be organized under the
General Corporation Law of California other than the banking
business, the trust company business or the practice of a
profession permitted to be incorporated by the California
Corporations Code.
(ii) Notwithstanding paragraph (b)(i) above, the
purpose of the Seller shall be limited to the following
purposes, and activities incident to and necessary or
convenient to accomplish the following purposes: (A) to
acquire from time to time
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from the Servicer, all right, title and interest in and to
receivables or leases arising out of or relating to the sale
or lease of new or used motor vehicles (including automobiles
and light trucks) or industrial equipment, wholesale loans
secured by new or used motor vehicles (including automobiles
and light duty trucks) or industrial equipment, moneys due
thereunder, security interests in the vehicles or industrial
equipment financed thereby, proceeds from claims on insurance
policies related thereto and related rights (collectively,
"Automobile Receivables"); (B) to acquire, own, hold, service,
sell, assign, pledge and otherwise deal with the Automobile
Receivables, collateral securing the Automobile Receivables,
related insurance policies, agreements with the Servicer and
any proceeds or further rights associated with any of the
foregoing; (C) to transfer Automobile Receivables to grantor
trusts or owner trusts (the "Additional Trusts") pursuant to
pooling and servicing agreements or similar agreements (the
"Additional Agreements") to be entered into by and among the
Servicer, as servicer, the Seller and the trustee named
therein; (D) to sell any class of asset-backed certificates or
other securities issued by the Additional Trusts under the
related Additional Agreements ("Offered Certificates"); (E) to
hold and enjoy all of the rights and privileges of any Offered
Certificates issued by the Additional Trusts to the Seller
under the related Additional Agreements; (F) to perform its
obligations under the Additional Agreements; and (G) to engage
in any activity and to exercise any powers permitted to
corporations under the laws of the State of California that
are related or incidental to the foregoing and necessary,
convenient or advisable to accomplish the foregoing.
(iii) So long as any outstanding debt of the Seller
or Offered Certificates are rated by any nationally recognized
statistical rating agency, the Seller shall not issue
unsecured notes or otherwise borrow money unless (A) the
Seller has made a written request to the related nationally
recognized rating agency to issue unsecured notes or incur
borrowings and such notes or borrowings are rated by the
related nationally recognized rating agency the same as or
higher than the rating afforded any outstanding rated debt or
Offered Certificates, or (B) such notes or borrowings (1) are
fully subordinated (and which shall provide for payment only
after payment in respect of all outstanding rated debt and/or
Offered Certificates) or are nonrecourse against any assets of
the Seller other than the assets pledged to secure such notes
or borrowings, (2) do not constitute a claim against the
Seller in the event such assets are insufficient to pay such
notes or borrowings, and (3) where such notes or borrowings
are secured by the rated debt or Offered Certificates, are
fully subordinated (and which shall provide for payment only
after payment in respect of all outstanding rated debt and/or
Offered Certificates) to such rated debt or Offered
Certificates.
(c) Notwithstanding any other provision of this Section
and any provision of law, the Seller shall not do any of the
following:
(i) engage in any business or activity other than
as set forth in clause (b) above;
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(ii) without the affirmative vote of a majority of
the members of the Board of Directors of the Seller (which
must include the affirmative vote of all duly appointed
Independent Directors, as required by the articles of
incorporation and bylaws of the Seller), (A) dissolve or
liquidate, in whole or in part, or institute proceedings to be
adjudicated bankrupt or insolvent, (B) consent to the
institution of bankruptcy or insolvency proceedings against
it, (C) file a petition seeking or consent to reorganization
or relief under any applicable federal or state law relating
to bankruptcy, (D) consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the corporation or a substantial part of its
property, (E) make a general assignment for the benefit of
creditors, (F) admit in writing its inability to pay its debts
generally as they become due, or (G) take any corporate action
in furtherance of the actions set forth in clauses (A) through
(F) above, provided, however, that no director may be required
by any shareholder of the Seller to consent to the institution
of bankruptcy or insolvency proceedings against the Seller so
long as it is solvent; or
(iii) merge or consolidate with any other
corporation, company or entity or sell all or substantially
all of its assets or acquire all or substantially all of the
assets or capital stock or other ownership interest of any
other corporation, company or entity (except for the
acquisition of Automobile Receivables of TMCC and the sale of
Automobile Receivables to one or more trusts in accordance
with the terms of clause (b)(ii) above, which shall not be
otherwise restricted by this Section 6.03(c)).
SECTION 6.04 Limitation on Liability of Seller and Others. The
Seller and any director or officer or employee or agent of the Seller may rely
in good faith on the advice of counsel or on any document of any kind, prima
facie properly executed and submitted by any Person respecting any matters
arising under this Agreement. The Seller shall not be under any obligation to
appear in, prosecute or defend any legal action that is not incidental to its
obligations as Seller of the Receivables under this Agreement and that in its
opinion may involve it in any expense or liability.
SECTION 6.05 Seller May Own Certificates. The Seller and any Person
controlling, controlled by or under common control with the Seller may in its
individual or any other capacity become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Seller or an affiliate
thereof except as otherwise specifically provided in the definition of the term
"Certificateholder." Certificates so owned by or pledged to the Seller or such
controlling or commonly controlled Person shall have an equal and proportionate
benefit under the provisions of this Agreement, without preference, priority or
distinction as among all of the Certificates, except as set forth herein with
respect to certain rights to vote, consent or give directions to the Trustee as
a Holder.
SECTION 6.06 No Transfer. The Seller hereby covenants that, except
as otherwise provided in this Agreement, it will not transfer, pledge or assign
to any Person any part of its right to receive any Excess Amounts pursuant to
Section 4.06(d)(iii) unless it has first delivered to the Trustee
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and each Rating Agency an Opinion of Counsel in form and substance satisfactory
to the Trustee stating that such transfer will not (i) adversely affect the
status of the Trust as a grantor trust pursuant to subpart E, part I of
subchapter J of the Code and (ii) cause the Reserve Fund to be taxable as a
corporation under the Code. The Seller shall give written notice to each
Rating Agency of any proposed transfer, pledge or assignment to any Person of
all or any part of its right to receive Excess Amounts pursuant to Section
4.06(d)(iii).
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ARTICLE VII
THE SERVICER
SECTION 7.01 Representations of Servicer. The Servicer shall make
the following representations on which the Trustee shall rely in accepting the
Receivables in trust and executing and authenticating the Certificates. The
representations shall speak as of the execution and delivery of this Agreement
and shall survive the sale of the Receivables to the Trustee.
(a) Organization and Good Standing. The Servicer 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, sell and service the Receivables and to
hold the Receivable Files as custodian on behalf of the Trustee.
(b) Due Qualification. The Servicer 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 (including the servicing of the Receivables as
required by this Agreement) shall require such qualifications.
(c) Power and Authority. The Servicer 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
Servicer by all necessary corporate action.
(d) Binding Obligations. This Agreement shall constitute
a legal, valid and binding obligation of the Servicer 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.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of
this Agreement 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 Servicer, 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 Servicer 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 this Agreement); nor violate any law or,
to the best of the Servicer's knowledge, any order, rule or regulation
applicable to the Servicer of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its
properties; which breach, default,
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conflict, lien or violation would have a material adverse effect on
the earnings, business affairs or business prospects of the Servicer.
(f) 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 Servicer's knowledge,
threatened, against or affecting the Servicer: (i) asserting the
invalidity of this Agreement or the Certificates, (ii) seeking to
prevent the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the validity
or enforceability of, this Agreement or the Certificates or (iv)
relating to the Servicer and which might adversely affect the federal
income tax attributes of the Certificates.
SECTION 7.02 Liability of Servicer; Indemnities.
(a) The Servicer shall be liable in accordance herewith
only to the extent of the obligations specifically undertaken by the
Servicer under this Agreement and shall have no other obligations or
liabilities under this Agreement. Such obligations shall include the
following:
(i) the Servicer shall defend, indemnify and hold
harmless the Trustee, the Trust and the Certificateholders
from and against any and all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses
of counsel and expenses of litigation arising out of or
resulting from the use or operation by the Servicer or any
affiliate thereof of any Financed Vehicle;
(ii) the Servicer shall indemnify, defend and hold
harmless the Trustee and the Trust from and against any taxes
that may at any time be asserted against the Trustee or the
Trust with respect to the transactions contemplated in this
Agreement, including, without limitation, any sales, gross
receipts, general corporation, tangible or intangible personal
property, privilege or license taxes (but not including any
taxes asserted with respect to, and as of the date of, the
sale of the Receivables to the Trust or the issuance and
original sale of the Certificates, or asserted with respect to
ownership of the Receivables, or federal or other income taxes
arising out of distributions on the Certificates) and costs
and expenses in defending against the same;
(iii) the Servicer shall indemnify, defend and hold
harmless the Trustee, the Trust and the Certificateholders
from and against any and all costs, expenses, losses, claims,
damages and liabilities to the extent that such cost, expense,
loss, claim, damage or liability arose out of, and was imposed
upon the Trustee, the Trust or the Certificateholders through
the negligence, willful misfeasance or bad faith of the
Servicer in the performance of its duties under this Agreement
or by reason of reckless disregard of its obligations and
duties under this Agreement; and
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(iv) the Servicer shall indemnify, defend and hold
harmless the Trustee from and against all costs, expenses,
losses, claims, damages and liabilities arising out of or
incurred in connection with the acceptance or performance of
the trusts and duties contained in this Agreement, except to
the extent that such cost, expense, loss, claim, damage or
liability: (A) shall be due to the willful misfeasance, bad
faith or negligence of the Trustee (B) shall arise from the
breach by the Trustee of any of its representations or
warranties set forth in Section 9.14, (C) relates to any tax
other than the taxes with respect to which either the Seller
or the Servicer shall be required to indemnify the Trustee, or
(D) shall arise out of or be incurred in connection with the
performance by the Trustee of the duties of a Successor
Servicer under this Agreement.
(b) Indemnification under this Section shall include,
without limitation, reasonable fees and expenses of counsel and
expenses of litigation. If the Servicer has made any indemnity
payments pursuant to this Section and the recipient thereafter
collects any of such amounts from others, the recipient shall
promptly repay such amounts collected to the Servicer, without
interest, so long as no amounts are outstanding to the Trustee.
(c) The provisions of this Section shall survive the
resignation or removal of the Trustee and the termination of this
Agreement.
SECTION 7.03 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. Any corporation (i) into which the Servicer may
be merged or consolidated, (ii) which may result from any merger, conversion or
consolidation to which the Servicer shall be a party or (iii) which may succeed
to all or substantially all of the business of the Servicer, which corporation
in any of the foregoing cases executes an agreement of assumption to perform
every obligation of the Servicer under this Agreement, shall be the successor
to the Servicer under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties to this Agreement.
The Servicer shall provide notice of any merger, consolidation or succession
pursuant to this Section to the Trustee and each Rating Agency.
SECTION 7.04 Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of its directors,
officers, employees or agents shall be under any liability to the
Trust, the Trustee or the Certificateholders, except as provided in
this Agreement, for any action taken or for refraining from the taking
of any action pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Servicer
or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in
the performance of duties or by reason of reckless disregard of
obligations and duties under this Agreement. The Servicer and any
director, officer, employee or agent of the Servicer may rely in good
faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this
Agreement.
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(b) Except as provided in this Agreement, the Servicer
shall not be under any obligation to appear in, prosecute, or defend
any legal action that shall not be incidental to its duties to service
the Receivables in accordance with this Agreement, and that in its
opinion may involve it in any expense or liability; provided, however,
that the Servicer may undertake any reasonable action that it may deem
necessary or desirable in respect of this Agreement and the rights and
duties of the parties to this Agreement and the interests of the
Certificateholders under this Agreement.
(c) The Servicer and any director, officer, employee or
agent of the Servicer may rely in good faith on the advice of counsel
or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this
Agreement. The Servicer shall not be under any obligation to appear
in, prosecute, nor defend any legal action that shall not be
incidental to its obligations under this Agreement, and that in its
opinion may involve it in any expense or liability.
SECTION 7.05 Servicer Not to Resign. Subject to the provisions of
Section 7.03, TMCC shall not resign from the obligations and duties hereby
imposed on it as Servicer under this Agreement except upon determination that
the performance of its duties under this Agreement shall no longer be
permissible under applicable law. Notice of any such determination permitting
the resignation of TMCC shall be communicated to the Trustee at the earliest
practicable time and any such determination shall be evidenced by an Opinion of
Counsel to such effect delivered to the Trustee concurrently with or promptly
after such notice. No such resignation shall become effective until the
Trustee or a successor Servicer shall have assumed the responsibilities and
obligations of TMCC in accordance with Section 8.03.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01 Events of Default. For purposes of this Agreement, each
of the following shall constitute an "Event of Default":
(a) any failure by the Servicer to deliver to the Trustee
the Servicer's Certificate for the related Collection Period, or any
failure by the Servicer (or, so long as the Servicer is TMCC, the
Seller) to deliver to the Trustee, for distribution to
Certificateholders, any proceeds or payment required to be so
delivered under the terms of the Certificates or this Agreement, in
each case that continues unremedied for a period of three Business
Days after discovery by an officer of the Servicer (or, so long as the
Servicer is TMCC, the Seller) or written notice has been given (i) to
the Servicer by the Trustee or (ii) to the Trustee and the Servicer
(or, so long as the Servicer is TMCC, the Seller) by holders of
Certificates evidencing not less than 25% of the Voting Interests of
the Class A Certificates, the Class B Certificates and the Class C
Certificates, voting together as a single class; or
(b) failure on the part of the Servicer (or so long as
the Servicer is TMCC, the Seller) duly to observe or to perform in any
material respect any other covenants or agreements of the Servicer (or
so long as the Servicer is TMCC, the Seller) set forth in the
Certificates or in this Agreement, which failure shall (i) materially
and adversely affect the rights of the Trust and (ii) continue
unremedied for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given (A) to the Servicer or the Seller, as the case may be, by
the Trustee or (B) to the Trustee and the Servicer or the Seller, as
the case may be, by holders of Certificates evidencing not less than
25% of the Voting Interests of Class A Certificates, the Class B
Certificates and the Class C Certificates, voting together as a single
class; or
(c) the entry of a decree or order by a court or agency
or supervisory authority having jurisdiction in the premises for the
appointment of a trustee in bankruptcy, conservator, receiver or
liquidator for the Servicer (or, so long as the Servicer is TMCC, the
Seller) in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding up or liquidation of their respective affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; or
(d) the consent by the Servicer (or, so long as the
Servicer is TMCC, the Seller) to the appointment of a trustee in
bankruptcy, conservator or receiver or liquidator in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer (or,
so long as the Servicer is TMCC, the Seller) of or relating to
substantially all of their property, or the Servicer (or, so long as
the Servicer is TMCC, the Seller) shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization
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statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations.
SECTION 8.02 Consequences of an Event of Default. If an Event of
Default shall occur and be continuing, so long as such Event of Default has not
been cured or waived, either the Trustee or the Holders of Certificates
evidencing not less than 51% of the voting interests of the Class A
Certificates, the Class B Certificates and the Class C Certificates, voting
together as a single class (but excluding for purposes of such calculation and
action all Certificates held by the Seller, the Servicer or any of their
affiliates), by notice then given in writing to the Servicer (and to the
Trustee if given by Certificateholders), may terminate all of the rights and
obligations of the Servicer under this Agreement. On or after the receipt by
the Servicer of such written notice, all authority and power of the Servicer
under this Agreement, whether with respect to the Certificates, the Receivables
or otherwise, shall, without further action, pass to and be vested in the
Trustee pursuant to and under this Section or such Successor Servicer as may be
appointed under Section 8.03; and, without limitation, the Trustee shall be
hereby authorized and empowered to execute and deliver, on behalf of the
predecessor Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement of the Receivables and related
documents, or otherwise. The predecessor Servicer shall cooperate with the
Successor Servicer and the Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including, without limitation, the transfer to the Successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or have been deposited by the predecessor
Servicer, in the Accounts or the Reserve Fund or thereafter received with
respect to the Receivables and all Payments Ahead that shall at that time be
held by the predecessor Servicer. All reasonable costs and expenses (including
attorneys' fees) incurred in connection with transferring the Receivable Files
to the Successor Servicer and amending this Agreement to reflect such
succession as Servicer pursuant to this Section shall be paid by the
predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses. Notwithstanding the foregoing, in the event the
predecessor Servicer is the Trustee, the original Servicer hereunder shall
reimburse the Trustee for all reasonable costs and expenses as described in the
immediately preceding sentence.
SECTION 8.03 Trustee to Act; Appointment of Successor Servicer. On
and after the time the Servicer receives a notice of termination pursuant to
Section 8.02 or tenders its resignation pursuant to Section 7.05, the Trustee
shall, by an instrument in writing, assume the rights and responsibilities of
the Servicer in its capacity as Servicer under this Agreement and the
transactions set forth or provided for in this Agreement, and shall be subject
to all the responsibilities, restrictions, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions of this Agreement.
As compensation therefor, the Trustee shall be entitled to such compensation
(whether payable out of the Collection Account or otherwise) as the Servicer
would have been entitled to under this Agreement if no such notice of
termination or resignation had been given. Notwithstanding the foregoing, the
Trustee may, if it shall be unwilling so to act, or shall, if it is legally
unable so to act, appoint, or petition a court of competent jurisdiction to
appoint, any established institution, having a net worth of not less than
$50,000,000 and whose regular business includes the servicing of automobile
and/or light duty truck receivables, as the successor to the
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Servicer under this Agreement, provided that the appointment of any such
successor to the Servicer will not result in the qualification, reduction or
withdrawal of the rating then assigned to any Class of Rated Certificates by
either Rating Agency. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of payments on or in respect of the Receivables as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the original Servicer under this Agreement. The Trustee and such
Successor Servicer shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession. The Trustee shall not be
relieved of its duties as Successor Servicer under this Section until the newly
appointed Servicer shall have assumed the responsibilities and obligations of
the Servicer under this Agreement.
SECTION 8.04 Notification to Certificateholders. Upon a Responsible
Officer of the Trustee obtaining actual knowledge of (i) the occurrence of an
Event of Default and the expiration of any cure period applicable thereto or
(ii) any termination of, or appointment of a successor to, the Servicer
pursuant to this Section, the Trustee shall give prompt written notice thereof
to Certificateholders at their respective addresses appearing in the
Certificate Register and to each Rating Agency.
SECTION 8.05 Waiver of Past Defaults. The Holders of Certificates
evidencing not less than 51% of the voting interests of the Class A
Certificates, the Class B Certificates and the Class C Certificates, voting
together as a single class (but excluding for purposes of such calculation and
action all Certificates held by the Seller, the Servicer or any of their
affiliates), may, waive any Event of Default or default by the Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits to or payments from the Certificate or Payahead
Accounts or the Reserve Fund in accordance with this Agreement or in respect of
a covenant or provision of this Agreement that under Section 11.01 cannot be
modified or amended without the consent of the Holder of each Certificate.
Upon any such waiver of a past default, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been remedied
for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon except to
the extent expressly so waived.
SECTION 8.06 Repayment of Advances. If a Successor Servicer replaces
the Servicer, the predecessor Servicer shall be entitled to receive
reimbursement for Outstanding Advances pursuant to Sections 4.03 and 4.04, in
the manner specified in Section 4.06, with respect to all Advances made by the
predecessor Servicer.
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ARTICLE IX
THE TRUSTEE
SECTION 9.01 Duties of Trustee.
(a) The Trustee, both prior to and after the occurrence
of an Event of Default, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. If, to
the actual knowledge of a Responsible Officer of the Trustee, an Event
of Default has occurred and has not been cured or waived, the Trustee
shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs; provided, however,
that if the Trustee assumes the duties of the Servicer pursuant to
Section 8.03, the Trustee in performing such duties shall use the
degree of skill and attention customarily exercised by a servicer with
respect to automobile and/or light duty truck receivables that it
services for itself or others.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee that shall be specifically
required to be furnished pursuant to any provision of this Agreement,
shall examine them to determine whether they conform to the
requirements of this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, its own bad faith or its own willful
misfeasance; provided, however, that:
(i) prior to the occurrence of an Event of
Default actually known to a Responsible Officer of the
Trustee, and after the curing or waiving of all such Events of
Default that may have occurred, the duties and obligations of
the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement
against the Trustee, the permissive right of the Trustee to do
things enumerated in this Agreement shall not be construed as
a duty and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement;
(ii) the Trustee shall not be personally liable
for an error of judgment made in good faith by a Responsible
Officer of the Trustee, unless it shall be proved that the
Trustee was negligent in performing its duties in accordance
with the terms of this Agreement; and
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(iii) the Trustee shall not be personally liable
with respect to any action taken, suffered or omitted to be
taken in good faith in accordance with the direction of the
Holders of Class A Certificates, Class B Certificates or Class
C Certificates evidencing not less than 25% of the Voting
Interests of the related Class relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement.
(d) The Trustee shall not be required to expend or risk
its own funds or otherwise incur financial liability in the
performance of any of its duties under this Agreement, or in the
exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it, and none of the provisions contained in this Agreement shall in
any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer under
this Agreement except during such time, if any, as the Trustee shall
be the successor to, and be vested with the rights, duties, powers and
privileges of, the Servicer in accordance with the terms of this
Agreement.
(e) Except for actions expressly authorized by this
Agreement, the Trustee shall take no action reasonably likely to
impair the security interests created or existing under any Receivable
or to impair the value of any Receivable.
(f) All information obtained by the Trustee regarding the
Obligors and the Receivables, whether upon the exercise of its rights
under this Agreement or otherwise, shall be maintained by the Trustee
in confidence and shall not be disclosed to any other Person, unless
such disclosure is required by this Agreement or any applicable law or
regulation.
SECTION 9.02 Trustee's Certificate. On or as soon as practicable
after each date on which the Servicer shall purchase Administrative Receivables
or the Seller shall repurchase Warranty Receivables, the Trustee shall, upon
receipt of written notice of such purchase or repurchase, as the case may be,
submit to the Servicer or the Seller, as applicable, a Trustee's Certificate
(substantially in the form attached hereto as Exhibit B), identifying the
purchaser and the Receivables so purchased, executed by the Trustee and
completed as to its date and the date of this Agreement, and accompanied by a
copy of the Servicer's Certificate for the related Collection Period. The
Trustee's Certificate submitted with respect to such Distribution Date shall
operate, as of such Distribution Date, as an assignment, without recourse,
representation or warranty, to the Seller or the Servicer, as the case may be,
of all the Trustee's right, title and interest in and to such Administrative
Receivable or Warranty Receivable and to the other property conveyed to the
Trust pursuant to Section 2.01 with respect to such Administrative Receivable
or Warranty Receivable, and all security and documents relating thereto, such
assignment being an assignment outright and not for security.
SECTION 9.03 Trustee's Assignment of Administrative Receivables and
Warranty Receivables. With respect to all Administrative Receivables and all
Warranty Receivables, the Trustee shall, by a Trustee's Certificate
(substantially in the form attached hereto as Exhibit B) assign, without
recourse, representation or warranty, to the Seller or the Servicer as
applicable, all
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the Trustee's right, title and interest in and to each such repurchased
Receivable and the other property conveyed to the Trust pursuant to Section
2.01 with respect to such Receivable, and all security and any documents
relating thereto, such assignment being an assignment outright and not for
security; and the Seller or the Servicer, as applicable, shall thereupon own
each such Receivable, and all such related security and documents, free of any
further obligation to the Trustee or the Certificateholders with respect
thereto. If in any enforcement suit or legal proceeding it is held that the
Servicer may not enforce a repurchased Receivable on the ground that it is not
a real party in interest or a holder entitled to enforce the Receivable, the
Trustee on behalf of the Trust shall, at the Servicer's written direction and
expense, take such reasonable steps as the Trustee deems necessary to enforce
the Receivable, including bringing suit in the Trust's name or the names of the
Certificateholders.
SECTION 9.04 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 9.01:
(i) the Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any
advice of counsel or Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken or suffered or omitted by it under this Agreement
in good faith and in accordance with such advice of counsel or
Opinion of Counsel;
(iii) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
under this Agreement or in relation to this Agreement, at the
request, order or direction of any of the Certificateholders
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities that may be incurred therein or thereby;
nothing contained in this Agreement shall, however, relieve
the Trustee of the obligations, upon the occurrence of an
Event of Default actually known to a Responsible Officer of
the Trustee (that shall not have been cured or waived), to
exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(iv) the Trustee shall not be personally liable
for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
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(v) prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of
Default that may have occurred, the Trustee shall not be bound
to make any investigation into the facts of matters stated in
any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so
by Holders of Certificates evidencing not less than 25% of the
Voting Interests of a Class; provided, however, that if the
payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such cost, expense or
liability as a condition to so proceeding; the reasonable
expense of every such examination shall be paid by the Seller
or, if paid by the Trustee, shall be reimbursed by the Seller
upon demand; and nothing in this clause shall derogate from
the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors;
and
(vi) the Trustee may execute any of the trusts or
powers under this Agreement or perform any duties under this
Agreement either directly or by or through agents or attorneys
or a custodian and shall not be liable or responsible for the
misconduct or negligence of any of its agents or attorneys or
a custodian appointed with due care by the Trustee.
(b) No Certificateholder will have any right to institute
any proceeding with respect to this Agreement, unless such Holder
shall have given to the Trustee written notice of default and (i) the
Event of Default arises from the Servicer's failure to remit
collections or payments when due or (ii) the Holders Certificates
evidencing not less than 25% of the Voting Interests of a Class have
made written request upon the Trustee to institute such proceeding in
its own name as Trustee thereunder, and have offered to the Trustee
reasonable indemnity, and the Trustee for 30 days has neglected or
refused to institute any such proceedings.
SECTION 9.05 Limitation on Trustee's Liability. The Trustee shall
make no representations as to the validity or sufficiency of this Agreement or
of the Certificates (other than the execution by the Trustee on behalf of the
Trust of, or the certificate of authentication on, the Certificates), or of any
Receivable or related document. The Trustee shall have no obligation to
perform any of the duties of the Seller or the Servicer unless explicitly set
forth in this Agreement. The Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability
of any security interest in any Financed Vehicle or any Receivable, or the
perfection and priority of such a security interest or the maintenance of any
such perfection and priority, or for or with respect to the efficacy of the
Trust or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including without limitation, the
existence, condition, location and ownership of any Financed Vehicle; the
existence and enforceability of any physical damage or credit life or credit
disability insurance; the existence and contents of any Receivable or any
computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the completeness of
any Receivable; the performance or
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enforcement of any Receivable; the compliance by the Seller or the Servicer
with any covenant or the breach by the Seller or the Servicer of any warranty
or representation made under this Agreement or in any related document and the
accuracy of any such warranty or representation prior to the Trustee's receipt
of notice or other discovery of any noncompliance therewith or any breach
thereof; any investment of monies by the Servicer or any loss resulting
therefrom (it being understood that the Trustee shall remain responsible as
Trustee for any Trust property that it may hold); the acts or omissions of the
Seller, the Servicer or any Obligor; any action of the Servicer taken in the
name of or as the agent of the Trustee; or any action by the Trustee taken at
the instruction of the Servicer; provided, however, that the foregoing shall
not relieve the Trustee of its obligation to perform its duties under this
Agreement. Except with respect to a claim based on the failure of the Trustee
to perform its duties under this Agreement or based on the Trustee's negligence
or willful misconduct, bad faith or negligence, no recourse shall be had for
any claim based on any provision of this Agreement, the Certificates or any
Receivable or assignment thereof against the institution serving as Trustee in
its individual capacity. The Trustee shall not have any personal obligation,
liability or duty whatsoever to any Certificateholder or any other Person with
respect to any such claim, and any such claim shall be asserted solely against
the Trust or any indemnitor who shall furnish indemnity as provided in this
Agreement. The Trustee shall not be accountable for the use or application by
the Seller of any of the Certificates or of the proceeds of such Certificates,
or for the use or application of any funds paid to the Servicer in respect of
the Receivables. The Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become the successor
Servicer) or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Agreement.
It is expressly understood and agreed by the parties hereto that (i)
each of this Agreement and the Certificates is executed and delivered by the
Trustee, not in its individual capacity but solely as trustee of the Trust in
the exercise of its powers and authority conferred and vested in it, (ii) each
of the representations (other than the representations and warranties of the
Trustee set forth in Section 9.14), undertakings and agreements herein made on
the part of the Trust is made and intended not as a representation, undertaking
or agreement by the Trustee in its individual capacity, but is made and
intended for the purpose of binding only the Trust and (iii) under no
circumstances shall the Trustee in its individual capacity be personally liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust under this Agreement or the
Certificates.
The Trustee will not be responsible for any losses incurred in
connection with investments in Eligible Investments made in accordance with the
terms of this Agreement, other than losses arising out of the Trustee's
negligence, bad faith or willful misconduct.
SECTION 9.06 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if it were not the Trustee.
SECTION 9.07 Trustee's Fees and Expenses. The Servicer covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which
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shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution
of the trusts created by this Agreement and in the exercise and performance of
any of the powers and duties of the Trustee under this Agreement, and the
Servicer shall pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances (including the reasonable compensation and
the expenses and disbursements of its counsel and of all persons not regularly
in its employ) incurred or made by the Trustee in defense of any action brought
against it in connection with this Agreement except any such expense,
disbursement or advance as may arise from its negligence, willful misfeasance
or bad faith or that is the responsibility of Certificateholders under this
Agreement. Additionally, the Servicer, pursuant to Section 7.02, shall
indemnify the Trustee with respect to certain matters.
SECTION 9.08 Indemnity of Trustee and Successor Servicer. Upon the
appointment of a Successor Servicer pursuant to Section 8.03, such Successor
Servicer and the Trustee and their respective agents and employees shall be
indemnified by the Trust and held harmless against any loss, liability, or
expense (including reasonable attorney's fees and expenses) arising out of or
incurred in connection with the acceptance of performance of the trusts and
duties contained in this Agreement to the extent that (i) the Successor
Servicer or the Trustee, as the case may be, shall not be indemnified for such
loss, liability or expense by the Servicer pursuant to Section 8.02; (ii) such
loss, liability, or expense shall not have been incurred by reason of the
Successor Servicer's or the Trustee's wilful misfeasance, bad faith or
negligence; and (iii) such loss, liability or expense shall not have been
incurred by reason of the Successor Servicer's or the Trustee's breach of its
respective representations and warranties pursuant to Sections 8.03, 9.09 and
9.14, respectively.
The Successor Servicer and/or the Trustee shall be entitled to the
indemnification provided by this Section only to the extent all amounts due the
Servicer and all holders of Certificates issued by the Trust with respect to
any Distribution Date pursuant to Sections 4.06 and 4.07 have been paid in full
and all amounts required to be deposited in the Reserve Fund with respect to
any Distribution Date pursuant to Section 4.07 have been so deposited.
SECTION 9.09 Eligibility Requirements for Trustee.
Except as otherwise provided in this Agreement, the Trustee under this
Agreement shall at all times be a corporation having its corporate trust office
in the same state (or the District of Columbia or the Commonwealth of Puerto
Rico) as the location of the Corporate Trust Office as specified in this
Agreement; organized and doing business under the laws of such state (or the
District of Columbia or the Commonwealth of Puerto Rico) or the United States;
authorized under such laws to exercise corporate trust powers; having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authorities; and having a long-term deposit
rating no lower than Baa3 by Moody's (if Moody's is a Rating Agency), or be
otherwise acceptable to each Rating Agency, as evidenced by a letter to such
effect from each of them (which acceptance may be evidenced in the form of a
letter, dated on or shortly before the Closing Date, assigning an initial
rating to the Rated Certificates).
If the Trustee shall publish reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this
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Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 9.10.
SECTION 9.10 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be discharged
from the trusts created by this Agreement by giving written notice
thereof to the Servicer. Upon receiving such notice of resignation,
the Servicer shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
Trustee. If no successor Trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(b) If at any time the Trustee shall cease to be eligible
in accordance with the provisions of Section 9.09 and shall fail to
resign after written request therefor by the Servicer, or if at any
time the Trustee shall be legally unable to act, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the
Servicer may remove the Trustee. If it shall remove the Trustee under
the authority of the immediately preceding sentence, the Servicer
shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor Trustee, and payment
of all fees owed to the outgoing Trustee.
(c) Any resignation or removal of the Trustee and
appointment of a successor Trustee pursuant to any of the provisions
of this Section shall not become effective until acceptance of
appointment by the successor Trustee as provided in Section 9.11. The
Servicer shall give each Rating Agency notice of any such resignation
or removal of the Trustee and appointment and acceptance of a
successor Trustee.
SECTION 9.11 Successor Trustee. Any successor Trustee appointed as
provided in Section 9.10 shall execute, acknowledge and deliver to the Servicer
and to its predecessor Trustee an instrument accepting such appointment under
this Agreement, and thereupon the resignation or removal of the predecessor
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as Trustee. The predecessor Trustee shall
deliver to the successor Trustee all documents and statements held by it under
this Agreement; and the Servicer and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Trustee all
such rights, powers, duties and obligations. No successor Trustee shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor Trustee shall be eligible under the provisions of Section 9.09.
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Upon acceptance of appointment by a successor Trustee as provided in this
Section, the Servicer shall mail notice of the successor of such Trustee under
this Agreement to all Certificateholders at their addresses as shown in the
Certificate Register and shall give notice by mail to each Rating Agency. If
the Servicer fails to mail such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Servicer.
SECTION 9.12 Merger or Consolidation of Trustee. Any corporation
(i) into which the Trustee may be merged or consolidated, (ii) which may result
from any merger, conversion, or consolidation to which the Trustee shall be a
party or (iii) which may succeed to all or substantially all the corporate
trust business of the Trustee, which corporation executes an agreement of
assumption to perform every obligation of the Trustee under this Agreement,
shall be the successor of the Trustee hereunder, provided such corporation
shall be eligible pursuant to Section 9.09, without the execution or filing of
any instrument or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. Notice of any such merger
shall be given by the Trustee to each Rating Agency.
SECTION 9.13 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or any Financed Vehicle may at the time be located, the Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person, in such
capacity and for the benefit of the Certificateholders, such title to the
Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the Servicer
and the Trustee may consider necessary or desirable. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to
meet the terms of eligibility as a successor trustee pursuant to Section 9.09
and no notice of a successor Trustee pursuant to Section 9.11 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 9.11.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred upon
and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act
separately without the Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee
under this Agreement or as successor to the Servicer under
this Agreement), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding
of title to the Trust or any
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portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) the Servicer and the Trustee acting jointly
(or during the continuation of an Event of Default, the
Trustee alone) may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Section. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, including, but not limited to, every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Each such instrument shall be filed with
the Trustee and a copy thereof given to the Servicer.
Any separate trustee or co-trustee may at any time appoint the Trustee
its agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on its behalf and in its name. If any separate trustee or co-trustee shall
die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee. Notwithstanding anything to the contrary in this Agreement,
the appointment of any separate trustee or co-trustee shall not relieve the
Trustee of its obligations and duties under this Agreement.
SECTION 9.14 Representations and Warranties of Trustee. The Trustee
shall make the following representations and warranties on which the Seller and
Certificateholders may rely:
(i) Organization and Good Standing. The Trustee
is a New York banking corporation duly organized, existing and
in good standing;
(ii) Power and Authority. The Trustee has full
power, authority and right to execute, deliver and perform
this Agreement and has taken all necessary action to authorize
the execution, delivery and performance by it of this
Agreement;
(iii) No Violation. The execution, delivery and
performance by the Trustee of this Agreement (a) shall not
violate any provision of any law governing the banking and
trust powers of the Trustee or, to the best of the Trustee's
knowledge, any order, writ, judgment, or decree of any court,
arbitrator, or governmental authority applicable to the
Trustee or any of its assets, (b) shall not violate any
provision of the corporate charter or by-laws of the Trustee,
and (c) shall not violate
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any provision of, or constitute, with or without notice or
lapse of time, a default under, or result in the creation or
imposition of any Lien on any properties included in the Trust
pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a
party, which violation, default or Lien could reasonably be
expected to materially and adversely affect the Trustee's
performance or ability to perform its duties under this
Agreement or the transactions contemplated in this Agreement;
(iv) No Authorization Required. The execution,
delivery and performance by the Trustee of this Agreement
shall not require the authorization, consent, or approval of,
the giving of notice to, the filing or registration with, or
the taking of any other action in respect of, any governmental
authority or agency regulating the banking and corporate trust
activities of the Trustee; and
(v) Duly Executed. This Agreement shall have
been duly executed and delivered by the Trustee and shall
constitute the legal, valid, and binding agreement of the
Trustee, 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.
SECTION 9.15 Tax Returns. In the event the Trust shall be required
to file tax returns, the Servicer shall prepare or shall cause to be prepared
any tax returns required to be filed by the Trust and shall remit such returns
to the Trustee for signature at least five days before such returns are due to
be filed. The Trustee, upon request, shall furnish the Servicer with all such
information known to the Trustee as may be reasonably required in connection
with the preparation of all tax returns of the Trust, and shall, upon request,
execute such returns.
SECTION 9.16 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as Trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment has
been obtained.
SECTION 9.17 Suit for Enforcement. If an Event of Default shall
occur and be continuing, the Trustee, in its discretion may, subject to the
provisions of Section 9.01, proceed to protect and enforce its rights and the
rights of the Certificateholders under this Agreement by a suit, action or
proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable or other remedy as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce any of the rights of
the Trustee or the Certificateholders.
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SECTION 9.18 Rights of Certificateholders to Direct Trustee. Holders
of Certificates evidencing not less the 25% of the Voting Interests of a Class
(but excluding for purposes of such calculation and action all Certificates
held by the Seller, the Servicer or any of their affiliates) shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee; provided, however, that subject to Section 9.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would be illegal or subject it to
personal liability or be unduly prejudicial to the rights of Certificateholders
not parties to such direction; and provided further that nothing in this
Agreement shall impair the right of the Trustee to take any action deemed
proper by the Trustee and which is not inconsistent with such direction by the
Certificateholders.
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ARTICLE X
TERMINATION
SECTION 10.01 Termination of the Trust.
(a) The Trust and the respective obligations and
responsibilities of the Seller, the Servicer and the Trustee shall
terminate upon (i) the purchase as of any Distribution Date by the
Seller or Servicer, or any successor to the Servicer, at its option of
the corpus of the Trust as described in Section 10.02, (ii) the
payment to Certificateholders of all amounts required to be paid to
them pursuant to this Agreement or (iii) the maturity or liquidation
of the last Receivable and the disposition of all property held as
part of the Trust; provided, however, that in no event shall the trust
created by this Agreement continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the Court of St.
James, living on the date of this Agreement. The Servicer shall
promptly notify the Trustee and each Rating Agency of any prospective
termination pursuant to this Section.
(b) Notice of any termination, specifying the
Distribution Date upon which the Certificateholders must surrender
their Certificates to the Trustee for payment of the final
distribution and retirement of the Certificates, shall be given
promptly by the Trustee (at the written direction of the Servicer) by
letter to Certificateholders mailed not later than the 15th day and
not earlier than the 30th day prior to the date on which such final
distribution is expected to occur specifying (i) the Distribution Date
upon which final payment of the Certificates shall be made upon
presentation and surrender of Certificates at the office of the
Trustee therein specified, (ii) the amount of any such final payment
and (iii) if applicable, that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office of
the Trustee therein specified. The Trustee shall give such notice to
the Certificate Registrar (if other than the Trustee) at the time such
notice is given to Certificateholders. In the event such notice is
given, the Seller, the Servicer, or any successor to the Servicer, or
the Trustee, as the case may be, shall make deposits into the
Collection Account in accordance with Section 4.05, or, in the case of
an optional purchase of Receivables pursuant to Section 10.02, shall
deposit the amount specified in Section 10.02. Upon presentation and
surrender of the Certificates, the Trustee shall cause to be
distributed to Certificateholders amounts distributable on such
Distribution Date pursuant to Section 4.06.
(c) In the event that all of the Certificateholders shall
not surrender their Certificates for retirement within six months
after the date specified in the above-mentioned written notice, the
Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for retirement and
receive the final distribution with respect thereto. If within one
year after the second notice all the Certificates shall not have been
surrendered for retirement, the Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be
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paid out of the funds and other assets that remain subject to this
Agreement. Any funds remaining in the Trust after exhaustion of such
remedies shall be distributed by the Trustee to the California Special
Olympics.
SECTION 10.02 Optional Purchase of All Receivables. On each
Distribution Date following the last day of a Collection Period as of which the
Pool Balance shall be less than the Optional Purchase Percentage (expressed as
a seven-digit decimal figure) multiplied by the Original Pool Balance, the
Seller or the Servicer, or any successor to the Servicer, shall have the option
to purchase the corpus of the Trust; provided that the option to purchase
provided in this Section shall not be exercised if the final distribution to
Certificateholders would be less than the aggregate outstanding principal
amount of the Certificates plus the sum of (i) the Class A Interest
Distributable Amount for the related Distribution Date, (ii) any unpaid Class A
Interest Carryover Shortfall, (iii) the Class B Interest Distributable Amount
for the related Distribution Date, (iv) any unpaid Class B Interest Carryover
Shortfall, (v) the Class C Interest Distributable Amount for the related
Distribution Date and (vi) any unpaid Class C Interest Carryover Shortfall. To
exercise such option, the Seller or the Servicer, or any successor to the
Servicer, as the case may be, shall notify the Trustee in writing, no later
than the tenth day of the month preceding the month in which the Distribution
Date as of which such purchase is to be effected and shall, on or before the
Distribution Date on which such purchase is to occur, deposit pursuant to
Section 4.06 in the Collection Account an amount equal to the aggregate
Administrative Purchase Payments for the Receivables (including Defaulted
Receivables), plus the appraised value of any other property held by the Trust
(less liquidation expenses to be incurred in connection with the recovery
thereof), such value to be determined by an appraiser mutually agreed upon by
the Seller, the Servicer and the Trustee, and shall succeed to all interests in
and to the Trust. Notwithstanding the foregoing, if Moody's is a Rating
Agency, the Seller or the Servicer, as the case may be, may not effect any such
purchase if the long-term unsecured debt obligations of the related entity are
rated less than Baa3, unless the Trustee shall have received an Opinion of
Counsel that such purchase will not constitute a fraudulent conveyance, or
Moody's is otherwise satisfied, as evidenced by written notice from Moody's to
the Trustee. Upon such deposit of the amount necessary to purchase the corpus
of the Trust, the Servicer shall for all purposes of this Agreement be deemed
to have released all claims for reimbursement of Outstanding Advances made in
respect of the Receivables. The payment shall be made in the manner specified
in Section 4.06, and shall be distributed pursuant to Section 4.07. In the
event that both the Seller and the Servicer, or any successor to the Servicer,
elect to purchase the Receivables pursuant to this Section, the party first
notifying the Trustee (based on the Trustee's receipt of such notice) shall be
permitted to purchase the Receivables.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended by the Seller, the Servicer and
the Trustee, without the consent of any of the Certificateholders, (i) to cure
any ambiguity, to correct or supplement any provision in this Agreement which
may be inconsistent with any other provision of this Agreement, to add, change
or eliminate any other provision of this Agreement with respect to matters or
questions arising under this Agreement that shall not be inconsistent with the
provisions of this Agreement or to add or provide for any credit enhancement
and (ii) to change the formula for determining the Specified Reserve Fund
Balance or the manner in which the Reserve Fund is funded or to amend or modify
any provisions of this Agreement relating to the remittance schedule with
respect to collections deposited into the Collection Account or the Payahead
Account pursuant to Section 4.02; provided, however, that any such action shall
not, as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of the Certificateholders and provided, further, that in
connection with any amendment pursuant to clause (ii) above the Servicer shall
deliver to the Trustee a letter from each Rating Agency to the effect that such
amendment will not cause the then-current rating on the Rated Certificates to
be qualified, reduced or withdrawn.
(b) This Agreement may also be amended from time to time by the
Seller, the Servicer and the Trustee, with the consent of Holders of the Class
A Certificates and the Class B Certificates, acting together as a single Class
(but excluding for purposes of such calculation and action all Certificates
held by the Seller, the Servicer or any of their affiliates), evidencing not
less than 51% of the Voting Interests of each Class of Certificates (which
consent of any Holder of a Certificate given pursuant to this Section or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Holder and on all future Holders of such Certificate and of any
Certificate issued upon the transfer thereof or in exchange thereof or in lieu
thereof whether or not notation of such consent is made upon the Certificate),
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, or of modifying in any
manner the rights of any Class of Certificateholders; provided, however, that
no such amendment shall (i) except as otherwise provided in Section 11.01(a),
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall
be required to be made on any Certificate or the applicable Pass Through Rate
or the Reserve Fund Balance or (ii) reduce the aforesaid percentage of the
Voting Interests of the Certificates of any Class required to consent to any
such amendment, without the consent of the Holders of all Certificates of the
relevant Class then outstanding.
(c) Prior to the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of such amendment
or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent,
the Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder. It shall not be necessary for
the consent of Certificateholders pursuant to Section 11.01(b) to approve
81
<PAGE> 87
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization by
Certificateholders of the execution thereof shall be subject to such reasonable
requirements as the Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Agreement or otherwise.
SECTION 11.02 Protection of Title to Trust.
(a) Each of the Seller and the Servicer or both shall execute and
file such financing statements and cause to be executed and filed such
continuation and other statements, all in such manner and in such places as may
be required by law fully to preserve, maintain and protect the interest of the
Certificateholders and the Trustee under this Agreement in the Receivables and
in the proceeds thereof. Each of the Seller and the Servicer shall deliver (or
cause to be delivered) to the Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Trustee at least 60
days' prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) Each of the Seller and the Servicer shall give the Trustee at
least 60 days' prior written notice of any relocation of its principal
executive office if, 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
promptly file any such amendment. The Servicer shall at all times maintain
each office from which it services Receivables and its principal executive
office within the United States.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Accounts and any
Payments Ahead held by the Servicer in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables to the
Trustee, the Servicer's master computer records (including any back-up
archives) that refer to any Receivable indicate clearly the interest of the
Trust
82
<PAGE> 88
in such Receivable and that the Receivable is owned by the Trustee. Indication
of the Trustee's ownership of a Receivable shall be deleted from or modified on
the Servicer's computer systems when, and only when, the Receivable has been
paid in full, repurchased or assigned pursuant to this Agreement.
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in, or otherwise transfer any interest in
automobile and/or light duty truck receivables to any prospective purchaser,
lender or other transferee, the Servicer shall give to such prospective
purchaser, lender or other transferee computer tapes, records or print-outs
(including any restored from back-up archives) that, if they refer in any
manner whatsoever to any Receivable, indicate clearly that such Receivable has
been sold and is owned by the Trustee unless such Receivable has been paid in
full, repurchased or assigned pursuant to this Agreement.
(g) The Servicer shall permit the Trustee and its agents at any
time to inspect, audit and make copies of and abstracts from the Servicer's
records regarding any Receivables then or previously included in the Trust.
(h) Upon request, the Servicer shall furnish to the Trustee,
within five Business Days, a list of all Receivables (by contract number and
name of Obligor) then held as part of the Trust, together with a reconciliation
of such list to the Schedule of Receivables and to each of the Servicer's
Certificates furnished before such request indicating removal of Receivables
from the Trust.
(i) The Servicer shall deliver to the Trustee promptly after the
execution and delivery of each amendment to any financing statement, an Opinion
of Counsel either (i) stating that, in the opinion of such Counsel, all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Trustee in
the Receivables, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (ii) stating that, in
the opinion of such Counsel, no such action is necessary to preserve and
protect such interest.
(j) The Seller shall, to the extent required by applicable law,
cause the Certificates to be registered with the Commission pursuant to Section
12(b) or Section 12(g) of the Exchange Act within the time periods specified in
such Sections.
(k) This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute but one and the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties to this Agreement or any of them.
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<PAGE> 89
(b) No Certificateholder shall have any right to vote (except as
provided in Sections 8.05 and 11.01) or in any manner otherwise control the
operation and management of the Trust, or the obligations of the parties to
this Agreement, nor shall anything set forth in this Agreement, or contained in
the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action pursuant to any provision of this Agreement.
(c) No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates evidencing not less the
25% of the Voting Interests of the related Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee under this Agreement and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee, for 30 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit, or proceeding and
during such 30-day period, no request or waiver inconsistent with such written
request has been given to the Trustee pursuant to this Section or Section 9.05;
it being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb, or prejudice the rights of the Holders of any
other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Agreement, except in the manner provided in this Agreement and for the equal,
ratable, and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 11.04 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties under this Agreement shall be
determined in accordance with such laws.
SECTION 11.05 Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given
upon receipt (i) in the case of the Seller or the Servicer, to the agent for
service as specified in this Agreement, or at such other address as shall be
designated by the Seller or the Servicer in a written notice to the Trustee;
(ii) in the case of the Trustee, at the Corporate Trust Office; (iii) in the
case of Standard & Poor's, at 26 Broadway, 15th Floor, New York, New York
10004, Attention: Asset Backed Surveillance Department; and (iv) in the case
of Moody's, at 99 Church Street, New York, New York 10007 Attention: ABS
Monitoring Department. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register.
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<PAGE> 90
Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder shall receive such notice.
SECTION 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid or unenforceable in any jurisdiction, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Assignment. Notwithstanding anything to the contrary
contained in this Agreement, except as provided in Sections 6.03 and 7.03 and
as provided in the provisions of this Agreement concerning the resignation of
the Servicer, this Agreement may not be assigned by the Seller or the Servicer
without the prior written consent of Holders of Certificates evidencing not
less than 51% of the Voting Interests of the Class A Certificates, the Class B
Certificates and the Class C Certificates, voting together as a single Class.
SECTION 11.08 Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and, upon the
authentication thereof by the Trustee pursuant to Section 5.02 or 5.03, the
Certificates are and shall be deemed fully paid.
SECTION 11.09 No Petition. Each of the Servicer and the Trustee
covenants and agrees that prior to the date which is one year and one day after
the date upon which each Class of Certificates has been paid in full, it will
not institute against, or join any other Person in instituting against the
Seller any bankruptcy, reorganization arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy or
similar law. Notwithstanding the foregoing, nothing herein shall be deemed to
prohibit the Trustee from filing proofs of claim or otherwise participating in
any such proceeding instituted by another person. This Section 11.09 shall
survive the termination of this Agreement or the termination of the Servicer or
the Trustee, as the case may be, under this Agreement.
* * * *
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<PAGE> 91
IN WITNESS WHEREOF, the parties have caused this Pooling and Servicing
Agreement to be duly executed by their respective officers as of the day and
year first above written.
TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION,
as Seller
By:/s/ Lloyd Mistele
-----------------
Name: Lloyd Mistele
Title: President
TOYOTA MOTOR CREDIT CORPORATION,
as Servicer
By:/s/ Wolfgang Jahn
-----------------
Name: Wolfgang Jahn
Title: Senior Vice President and General Manager
BANKERS TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:/s/ Melissa Kaye Adelson
------------------------
Name: Melissa Kaye Adelson
Title: Vice President
86
<PAGE> 92
EXHIBIT A
FORM OF SERVICER'S CERTIFICATE
PURSUANT TO SECTION 3.10 OF
POOLING AND SERVICING AGREEMENT
<TABLE>
<S> <C> <C>
L. ORIGINAL DEAL PARAMETER INPUTS
- --------------------------------
(A) Original Total Portfolio $0.00
(B) Class A Certificate Ownership Interest of the Trust 0.00%
(C) Original Class A Certificate Balance $0.00
(D) Class A Certificate Rate 0.00%
(E) Original Class B Certificate Balance $0.00
(F) Class B Certificate Rate 0.00%
(G) Original Class C Certificate Balance $0.00
(H) Class C Certificate Rate 0.00%
(I) Servicing Fee Rate 0.00%
(J) Original Weighted Average Coupon (WAC) 0.00%
(K) Original Weighted Average Remaining Term (WAM) 0.00 months
(L) Number of Contracts 0
(M) Reserve Fund
(i) Reserve Fund Initial Deposit Percentage 0.00%
(ii) Reserve Fund Initial Deposit $0.00
(iii) Specified Reserve Fund Balance Percent 0.00%
(iv) Specified Reserve Fund Balance $0.00
(v) Reserve Fund Floor Percent 0.00%
(vi) Reserve Fund Floor Amount $0.00
(vii) Reserve Fund Floor Trigger Amount $0.00
(viii) Loss and Delinquency Trigger Percent 0.00%
M.INPUTS FROM PREVIOUS MONTHLY SERVICER'S CERTIFICATE
- -----------------------------------------------------
(A) Total Portfolio Outstanding 0.00
(B) Total Portfolio Pool Factor 0.0000000
(C) Class A Certificate Balance 0.00
(D) Class A Principal Factor 0.0000000
(E) Class B Certificate Balance 0.00
(F) Class B Principal Factor 0.0000000
(G) Class C Certificate Balance 0.00
(H) Class C Principal Factor 0.0000000
(I) Reserve Fund Balance 0.00
(J) Outstanding Precompute and Interest Advance 0.00
(K) Payahead Account Balance 0.00
(L) Cumulative Net Losses for All Prior Periods 0.00
(M) Weighted Average Coupon of Remaining Portfolio (WAC) 0.00%
(N) Weighted Average Remaining Term of Remaining Portfolio (WAM) 0.00 months
(O) Number of Contracts 0
N.INPUTS FROM THE MAINFRAME
- ---------------------------
(A) Precomputed Contracts Principal $0.00
(i) Scheduled Principal Collections 0 contracts $0.00
(ii) Prepayments in Full $0.00
(iii) Repurchased principal $0.00
(iv) Payments behind/ahead on repurchased receivables $0.00
(B) Precomputed Contracts Total Collections
(C) Simple Interest Contracts $0.00
(i) Collected Principal $0.00
(ii) Prepayments in Full 0 contracts $0.00
(iii) Collected Interest $0.00
(iv) Repurchased Receivables Principal $0.00
(v) Repurchased Receivables Interest $0.00
(D) Payment Advance for Precomputes
(i) Reimbursement of Previous Advances $0.00
(ii) Current Advance Amount $0.00
(E) Payment Advance for Simple Interest Contracts
(i) Reimbursement of Previous Advances $0.00
(ii) Current Advance Amount $0.00
(F) Payahead Account for Precomputes
(i) Payments Applied $0.00
(ii) Additional Payaheads $0.00
(G) Weighted Average Coupon of Remaining Portfolio (WAC) 0.00%
(H) Weighted Average Remaining Maturity of Remaining Portfolio (WAM) 0.00 months
(I) Remaining Number of Contracts 0
(J) Delinquent Contracts
<CAPTION>
Contracts Amount
--------------------------------------------------------------------------
<S> <C> <C> <C> <C>
(i) 31-60 Days Delinquent 0 0.00% $0.00 0.00%
(ii) 61-90 Days Delinquent 0 0.00% $0.00 0.00%
(iii) Over 90 Days Delinquent 0 0.00% $0.00 0.00%
</TABLE>
A-1
<PAGE> 93
<TABLE>
<S> <C>
O. INPUTS FROM OTHER SOURCES
- ---------------------------
(A) Aggregate Net Losses for Collection Period $0.00
(B) Liquidated Contracts 0
(i) Gross Principal Balance of Liquidated Receivables $0.00
(ii) Net Liquidation Proceeds Received During the Collection Period $0.00
(iii) Recoveries on Previously Liquidated Contracts $0.00
(C) Number of Vehicles Repossessed During the Collection Period 0
I. COLLECTIONS
- -----------------
A. Principal Payments Received $0.00
B. Interest Payments Received 0.00
C. Aggregate Net Liquidation Proceeds Received 0.00
D. Principal on Repurchased Contracts 0.00
E. Interest on Repurchased Contracts 0.00
---------------
F. Total Collections $0.00
G. Net Simple Interest Advance Amount 0.00
H. Yield Maintenance Deposit 0.00
---------------
I. Total Available Amount $0.00
II. DISTRIBUTIONS
- ---------------------
A. Principal Payments Received $0.00
B. Principal on Repurchased Contracts 0.00
C. Gross Principal Balance of Liquidated Receivables 0.00
---------------
D. Total Principal Reduction $0.00
E. Class A Distributable Amount $0.00
1. Class A Monthly Interest Payment 0.00
2. Class A Monthly Principal 0.00
3. Interest Carryover Shortfall 0.00
4. Principal Carryover Shortfall 0.00
5. Interest due Class B but paid to Class A (subordination) 0.00
6. Principal due Class B but paid to Class A (subordination) 0.00
7. Interest due Class C but paid to Class A (subordination) 0.00
8. Principal due Class C but paid to Class A (subordination) 0.00
---------------
9. Total Distributable Amount $0.00
F. Class B Distributable Amount $0.00
1. Class B Monthly Interest Payment 0.00
2. Class B Monthly Principal 0.00
3. Interest Carryover Shortfall 0.00
4. Principal Carryover Shortfall 0.00
5. Interest subordinated to Class A 0.00
6. Principal subordinated to Class A 0.00
7. Interest due Class C but paid to Class B (subordination) 0.00
8. Principal due Class C but paid to Class B (subordination) 0.00
---------------
9. Total Distributable Amount $0.00
G. Class C Distributable Amount $0.00
1. Class C Monthly Interest Payment 0.00
2. Class C Monthly Principal 0.00
3. Interest Carryover Shortfall 0.00
4. Principal Carryover Shortfall 0.00
5. Interest subordinated to Class A 0.00
6. Principal subordinated to Class A 0.00
7. Interest subordinated to Class B 0.00
8. Principal subordinated to Class B 0.00
---------------
9. Total Distributable Amount $0.00
H. Required Distributions $0.00
1. Class A Servicing Fee 0.00
2. Class B Servicing Fee 0.00
3. Class C Servicing Fee 0.00
4. Class A Supplemental Servicing Fee Received $00,000.00)
5. Class B Supplemental Servicing Fee Received $00,000.00)
6. Class C Supplemental Servicing Fee Received $00,000.00)
7. Class A Amount 0.00
8. Class B Amount 0.00
9. Class C Amount 0.00
10. Deposit to Reserve Fund 0.00
---------------
11. Total Amount Distributed $0.00
I. Amount of Draw from Reserve Fund $0.00
J. Yield Maintenance Deposit $0.00
K. Sum of Draw from Reserve Fund and Total Available Amount $0.00
L. Class A Interest Shortfall $0.00
M. Class A Principal Shortfall $0.00
N. Class B Interest Shortfall $0.00
O. Class B Principal Shortfall $0.00
P. Class C Interest Shortfall $0.00
Q. Class C Principal Shortfall $0.00
</TABLE>
A-2
<PAGE> 94
<TABLE>
<CAPTION>
III. POOL BALANCES AND PORTFOLIO INFORMATION
- -----------------------------------------------
Beginning of Period End of Period
------------------- -------------
<S> <C> <C>
A. Balances and Principal Factors
1. Total Pool Balance $0.00 $0.00
2. Total Pool Factor 0.00000000000 0.00000000000
3. Class A Certificate Balance $0.00 $0.00
4. Class A Principal Factor 0.00000000000 0.00000000000
5. Class B Certificate Balance $0.00 $0.00
6. Class B Principal Factor 0.00000000000 0.00000000000
7. Class C Certificate Balance $0.00 $0.00
8. Class C Principal Factor 0.00000000000 0.00000000000
B. Portfolio Information
1. Weighted Average Coupon (WAC) 0.00% 0.00% months
2. Weighted Average Remaining Maturity (WAM) 0.00 months 0.00
3. Remaining Number of Contracts 0 0
C. Outstanding Precompute and Simple Interest Advance Amount $0.00 $0.00
D. Outstanding Paid Ahead $0.00 $0.00
IV. RECONCILIATION OF RESERVE FUND
- --------------------------------------
A. Beginning Reserve Fund Balance $0.00
B. Draw for Class A Distributable Amount and Servicing Fee (If Positive) 0.00
C. Draw for Class B Distributable Amount and Servicing Fee (If Positive) 0.00
D. Draw for Class C Distributable Amount and Servicing Fee (If Positive) 0.00
E. Amount Available for Deposit to the Reserve Fund (If Positive) 0.00
---------------
F. Reserve Fund Balance Prior to Release $0.00
G. Reserve Fund Required Amount (Was Trigger or Floor Hit?) $0.00
H. Reserve Fund Release to Seller (If Positive) $0.00
---------------
I. Ending Reserve Fund Balance $0.00
V. YIELD MAINTENANCE ACCOUNT
- -------------------------------
A. Beginning Yield Maintenance Amount $0.00
B. Yield Maintenance Amount Funded 0.00
C. Draw for Yield Maintenance Deposit 0.00
---------------
D. Yield Maintenance Account Balance $0.00
E. Yield Maintenance Account Required Amount $0.00
F. Yield Maintenance Funding Required $0.00
VI. NET LOSS AND DELINQUENCY ACCOUNT ACTIVITY
- -------------------------------------------------
A. Aggregate Net Losses for Collection Period $0.00
B. Liquidated Contracts
1. Gross Principal Balance of Liquidated Receivables $0.00
2. Net Liquidation Proceeds Received During the Collection Period $0.00
3. Recoveries on Previously Liquidated Contracts $0.00
C. Cumulative Net Losses for all Periods 0
1. Number of contracts
D. Delinquent and Repossessed Contracts
<CAPTION>
Contracts Amount
---------------------------------------------
<S> <C> <C> <C>
1. 31-60 Days Delinquent 0 0.00% $0.000.00%
2. 61-90 Days Delinquent 0 0.00% $0.000.00%
3. Over 90 Days Delinquent 0 0.00% $0.000.00%
4. Vehicles Repossessed During the Collection 0 ***
period
5. Repossessed Vehicle Inventory 91 * **
*Included above
VII. TESTS FOR INCREASE IN RESERVE FUND BALANCE
- --------------------------------------------------
A. Ratio of Net Losses to the Pool Balance as of Each Collection Period
1. Second Preceding Collection Period 0.00%
2. Preceding Collection Period 0.00%
3. Current Collection Period 0.00%
4. Three Month Average (Avg(i,ii,iii)) 0.00%
B. Ratio of Number of Contracts Delinquent 60 Days or More to the Outstanding
Number of Receivables as of Each Collection Period. (Includes Repossessions)
1. Second Preceding Collection Period 0.00%
2. Preceding Collection Period 0.00%
3. Current Collection Period 0.00%
4. Three Month Average (Avg(i,ii,iii)) 0.00%
C. Loss and Delinquency Trigger Indicator Trigger Was Not Hit
</TABLE>
A-3
<PAGE> 95
I hereby certify that the servicing report provided is true and accurate to the
best of my knowledge
______________________________________________
Principal Accounting Officer
A-4
<PAGE> 96
EXHIBIT B
FORM OF TRUSTEE'S CERTIFICATE
PURSUANT TO SECTION 9.02 OR 9.03
OF THE POOLING AND SERVICING
AGREEMENT
________________________, as trustee (the "Trustee") of the Toyota
Auto Receivables 1996-A Grantor Trust created pursuant to the Pooling and
Servicing Agreement (the "Agreement"), dated as of July 1, 1996, among Toyota
Motor Credit Receivables Corporation, as Seller, Toyota Motor Credit
Corporation, as Servicer, and the Trustee, does hereby sell, transfer, assign
and otherwise convey to the [Seller][Servicer], without any recourse,
representation or warranty, all of the Trustee's right, title and interest in
and to all of the Receivables identified in the attached Servicer's Certificate
as "Repurchased Receivables," which are to be repurchased by the [Seller
pursuant to Section 2.05 or 10.02] [Servicer pursuant to Section 3.08 or 10.02]
of the Agreement, and all security and documents relating thereto.
Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this _th day of
_________, ____.
BANKERS TRUST COMPANY,
as Trustee
By:
-----------------------------
Title:
B-1
<PAGE> 97
EXHIBIT C
FORM OF CLASS A CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TOYOTA AUTO RECEIVABLES 1996-A GRANTOR TRUST
6.30% ASSET BACKED CERTIFICATE, CLASS A
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of retail installment
sale contracts secured by the new and used automobiles and light duty
trucks financed thereby and sold to the Trust by Toyota Motor Credit
Receivables Corporation. The Final Scheduled Distribution Date is
July 20, 2001.
(This Certificate does not represent an interest in or obligation of
Toyota Motor Credit Receivables Corporation, Toyota Motor Credit
Corporation or any of their respective affiliates)
CUSIP 892319 AC8
NUMBER R-A1 $200,000,000.00
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a TWO
HUNDRED MILLION DOLLAR ($200,000,000.00) nonassessable, fully-paid, fractional
undivided interest in the Toyota Auto Receivables 1996-A Grantor Trust (the
"Trust") formed by Toyota Motor Credit Receivables Corporation, a California
corporation (the "Seller"). The Trust was created pursuant to a Pooling and
Servicing Agreement, dated as of July 1, 1996 (the "Agreement"), among the
Seller, Toyota Motor Credit Corporation, as Servicer, and Bankers Trust
Company, as trustee (the "Trustee"). A summary of certain of the pertinent
provisions of the Agreement is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Agreement.
This Certificate is one of the duly authorized Certificates issued
under the Agreement and designated as "Toyota Auto Receivables 1996-A Grantor
Trust 6.30% Asset Backed Certificates, Class A" (the "Class A Certificates").
Also issued under the Agreement are Certificates designated as "Toyota Auto
Receivables 1996-A Grantor Trust 6.50% Asset Backed Certificates, Class B"
(the "Class B Certificates") and "Toyota Auto Receivables 1996-A Grantor Trust
7.35% Asset Backed Certificates, Class C" (the "Class C Certificates" and,
together with the Class A Certificates and the Class B Certificates, the
"Certificates"). The Class B Certificates and Class C Certificates are
subordinated to the Class A Certificates, and the Class C Certificates are
subordinated to the Class B Certificates, in each case to the extent described
in the Agreement. The aggregate undivided interest in the Trust evidenced by
all Class A Certificates is 95.7499492%. This Class A Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class A Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
C-1
<PAGE> 98
The property of the Trust includes, among other things, a pool of
retail installment sale contracts (the "Receivables") for the new and used
automobiles and light duty trucks financed thereby (the "Financed Vehicles"),
certain monies due under the Receivables on and after the Cutoff Date, security
interests in the Financed Vehicles, certain bank accounts and the proceeds
thereof, proceeds from claims on physical damage, credit life and disability
insurance policies covering the Financed Vehicles, the Receivables or the
related Obligors, an assignment of the Seller's rights under the Receivables
Purchase Agreement and the right of the Seller to receive the proceeds of any
Dealer Recourse relating to the Receivables.
Under the Agreement, there will be distributed on the twentieth day of
each month or, if such day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on August 20, 1996, to the Person
in whose name this Class A Certificate is registered at the close of business
on the last calendar day immediately preceding the related Distribution Date
or, if Definitive Certificates are issued, the last day of the immediately
preceding calendar month (each, a "Record Date"), such Class A
Certificateholder's percentage interest in the Class A Distributable Amount for
such Distribution Date actually distributed, together with any outstanding
Class A Interest Carryover Shortfall and any outstanding Class A Principal
Carryover Shortfall, all to the extent and as more specifically set forth in
the Agreement.
Distributions on this Class A Certificate will be made by the Trustee
by check or money order mailed to the related Class A Certificateholder of
record in the Certificate Register without the presentation or surrender of
this Class A Certificate or the making of any notation hereon except that with
respect to Class A Certificates registered in the name of Cede & Co., the
nominee for The Depository Trust Company, distributions will be made in the
form of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the foregoing, the final distribution on this
Class A Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Class A Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer or any of their respective affiliates. Under no
circumstances shall Bankers Trust Company in its individual capacity be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under the Agreement or the
Certificates. Each of the Agreement and this Certificate has been executed and
delivered by Bankers Trust Company, not in its individual capacity but solely
as trustee of the Trust. Each of the representations (other than the
representations and warranties of the Trustee set forth in Section 9.14),
undertakings and agreements made by Bankers Trust Company in the Agreement is
made on the part of the Trust and intended not as a representation, undertaking
or agreement by Bankers Trust Company in its individual capacity, but is made
and intended for the purpose of binding only the Trust. The Certificates are
limited in right of payment to certain collections and recoveries respecting
the Receivables and the monies on deposit in the Reserve Fund, all as more
specifically set forth in the Agreement. A copy of the Agreement may be
examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Seller, the Servicer and the Trustee with the consent of the
Holders of Certificates evidencing not less than 51% of the Voting Interests of
each Class of Certificates acting together as a single Class (but excluding for
purposes of such calculation and action all Certificates held by the Seller,
the Servicer or any of their affiliates). Any such consent by the Holder of
this Class A Certificate shall be conclusive and binding on such Holder and on
all future Holders of this Class A Certificate and of any Class A Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not
C-2
<PAGE> 99
notation of such consent is made upon this Class A Certificate. The Agreement
also permits the amendment thereof, in certain circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Class A Certificate is registrable in
the Certificate Register upon surrender of this Class A Certificate for
registration of transfer at the offices or agencies maintained by the Trustee
in its capacity as Certificate Registrar, or by any successor Certificate
Registrar, in The City of New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Class A Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee.
The Class A Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A Certificate in a smaller minimum denomination
representing any remaining portion of the Original Class A Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Class A Certificates are exchangeable for new Class A
Certificates of authorized denominations evidencing the same aggregate
principal amount, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Trustee may require payment of a sum sufficient to cover any tax or
governmental charges payable in connection therewith.
Prior to due presentation of this Class A Certificate for transfer,
the Trustee, the Certificate Registrar and any of their respective agents may
treat the Person in whose name this Class A Certificate is registered as the
owner hereof for the purposes of receiving distributions and for all other
purposes, and neither the Trustee, the Certificate Registrar nor any such agent
shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement or the
maturity or liquidation of the last Receivable and the disposition of all
property held as part of the Trust. The Seller or the Servicer, or any
successor to the Servicer, may, at its option, purchase the corpus of the Trust
at a price specified in the Agreement, and such purchase of the Receivables and
other property of the Trust will effect early retirement of the Certificates;
however, such right of purchase is exercisable only on a Distribution Date
following the last day of the month in which the Pool Balance is 10% or less of
the Original Pool Balance.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Class A Certificate shall not entitle the Holder hereof to any benefit under
the Agreement or be valid for any purpose.
C-3
<PAGE> 100
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class A Certificate to be duly executed.
Dated: July 24, 1996 TOYOTA AUTO RECEIVABLES 1996-A
GRANTOR TRUST
By: BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By:
--------------------------------
Authorized Officer
This is one of the Certificates referred to in the within-mentioned
Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Officer
C-4
<PAGE> 101
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_________________________________________________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
_________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
____________________________________________________ Attorney to transfer said
Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
*
---------------------------------
Signature Guaranteed:
*
----------------------------------
_____________________
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
C-5
<PAGE> 102
EXHIBIT D
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE REPRESENTS TO THE SELLER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS
NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), OR A PERSON ACTING ON BEHALF OF A PLAN OR USING THE
ASSETS OF A PLAN TO EFFECT SUCH PURCHASE AND IS NOT AN INSURANCE COMPANY
PURCHASING SUCH CERTIFICATE OR INTEREST FROM FUNDS IN A GENERAL ACCOUNT OR
SEPARATE ACCOUNT (WITH CERTAIN LIMITATIONS) OR (2) DELIVERS AN OPINION OF
COUNSEL, IN EACH CASE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.03 OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE OR A PERSON ACTING ON
BEHALF OF A PLAN OR USING THE ASSETS OF A PLAN TO EFFECT SUCH PURCHASE OR TO AN
INSURANCE COMPANY FOR AMOUNTS IN A NON-EXEMPT INSURANCE COMPANY GENERAL ACCOUNT
OR SEPARATE ACCOUNT WITHOUT DELIVERING THE OPINION OF COUNSEL DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
D-1
<PAGE> 103
TOYOTA AUTO RECEIVABLES 1996-A GRANTOR TRUST
6.50% ASSET BACKED CERTIFICATE, CLASS B
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of retail installment
sale contracts secured by the new and used automobiles and light duty
trucks financed thereby and sold to the Trust by Toyota Motor Credit
Receivables Corporation. The Final Scheduled Distribution Date is
July 20, 2001.
(This Certificate does not represent an interest in or obligation of
Toyota Motor Credit Receivables Corporation, Toyota Motor Credit
Corporation or any of their respective affiliates)
NUMBER R-B1 CUSIP 892319 AE4
$22,632,000
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a TWENTY-TWO
MILLION SIX HUNDRED THIRTY-TWO THOUSAND DOLLAR ($22,632,000.00) nonassessable,
fully-paid, fractional undivided interest in the Toyota Auto Receivables 1996-A
Grantor Trust (the "Trust") formed by Toyota Motor Credit Receivables
Corporation, a California corporation (the "Seller"). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of July 1, 1996 (the
"Agreement") among the Seller, Toyota Motor Credit Corporation, as Servicer,
and Bankers Trust Company, as trustee (the "Trustee"). A summary of certain of
the pertinent provisions of the Agreement is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued
under the Agreement and designated as "Toyota Auto Receivables 1996-A Grantor
Trust 6.50% Asset Backed Certificates, Class B" (the "Class B Certificates").
Also issued under the Agreement are Certificates designated as "Toyota Auto
Receivables 1996-A Grantor Trust 6.30% Asset Backed Certificates, Class A"
(the "Class A Certificates") and "Toyota Auto Receivables 1996-A Grantor Trust
7.35% Asset Backed Certificates, Class C" (the "Class C Certificates" and,
together with the Class A Certificates and the Class B Certificates, the
"Certificates"). The Class B Certificates and Class C Certificates are
subordinated to the Class A Certificates, and the Class C Certificates are
subordinated to the Class B Certificates, in each case to the extent described
in the Agreement. The aggregate undivided interest in the Trust evidenced by
all Class B Certificates is 3.0000109%. This Class B Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class B Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The property of the Trust includes, among other things, a pool of
retail installment sale contracts (the "Receivables") for the new and used
automobiles and light duty trucks financed thereby (the "Financed Vehicles"),
certain monies due under the Receivables on and after the Cutoff Date, security
interests in the Financed Vehicles, certain bank accounts and the proceeds
thereof, proceeds from claims on physical damage, credit life and disability
insurance policies covering the Financed Vehicles, the Receivables or the
related Obligors, an assignment of the Seller's rights under the Receivables
Purchase Agreement and the right of the Seller to receive the proceeds of any
Dealer Recourse relating to the Receivables.
Under the Agreement, there will be distributed on the twentieth day of
each month or, if such day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on August 20, 1996, to the Person
in whose name this Class B Certificate is registered at the close of business
D-1
<PAGE> 104
on the last calendar day immediately preceding the related Distribution Date
or, if Definitive Certificates are issued, the last day of the month
immediately preceding the month of such distribution (each, a "Record Date"),
such Class B Certificateholder's percentage interest in an amount equal to the
Class B Distributable Amount for such Distribution Date actually distributed,
together with any outstanding Class B Interest Carryover Shortfall and any
outstanding Class B Principal Carryover Shortfall, all to the extent and as
more specifically set forth in the Agreement.
Distributions on this Class B Certificate will be made by the Trustee
by check or money order mailed to the related Class B Certificateholder of
record in the Certificate Register without the presentation or surrender of
this Class B Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Class B Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class B Certificate at the office or agency maintained for
that purpose by the Trustee in the Borough of Manhattan, The City of New York.
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer or any of their respective affiliates. Under no
circumstances shall Bankers Trust Company in its individual capacity be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under the Agreement or the
Certificates. Each of the Agreement and this Certificate has been executed and
delivered by Bankers Trust Company, not in its individual capacity but solely
as trustee of the Trust. Each of the representations (other than the
representations and warranties of the Trustee set forth in Section 9.14),
undertakings and agreements made by Bankers Trust Company in the Agreement is
made on the part of the Trust and intended not as a representation, undertaking
or agreement by Bankers Trust Company in its individual capacity, but is made
and intended for the purpose of binding only the Trust. The Certificates are
limited in right of payment to certain collections and recoveries respecting
the Receivables and the monies on deposit in the Reserve Fund, all as more
specifically set forth in the Agreement. A copy of the Agreement may be
examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Seller, the Servicer and the Trustee with the consent of the
Holders of Certificates evidencing not less than 51% of the Voting Interests of
each Class of Certificates acting together as a single Class (but excluding for
purposes of such calculation and action all Certificates held by the Seller,
the Servicer or any of their affiliates). Any such consent by the Holder of
this Class B Certificate shall be conclusive and binding on such Holder and on
all future Holders of this Class B Certificate and of any Class B Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Class B Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Class B Certificate is registrable in
the Certificate Register upon surrender of this Class B Certificate for
registration of transfer at the offices or agencies maintained by the Trustee
in its capacity as Certificate Registrar, or by any successor Certificate
Registrar, in The City of New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Class B Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee.
D-2
<PAGE> 105
No transfer of a Class B Certificate shall be made unless the Trustee
shall have received a representation letter from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
to the effect that:
(i) such transferee (A) is not an employee benefit plan or
arrangement subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code (a "Plan"), nor a person acting on behalf of
a Plan nor using the assets of a Plan to effect such transfer, and (B)
is not an insurance company purchasing a Class B Certificate with
funds contained in an "insurance company general account" or an
"insurance company separate account" (as defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) as to
which there is a Plan with respect to which the amount of such general
account's reserves and liabilities for the contracts held by or on
behalf of such Plan and all other Plans maintained by the same
employer (or affiliate thereof as defined in Section V(a)(1) of PTCE
95-60) or by the same employee organization exceed 10% of the total of
all reserves and liabilities of such general account (as such amounts
are determined under Section I(a) of PTCE 95-60) at the date of
acquisition; or
(ii) such transferee is a Plan or a person acting on behalf of
a Plan or using the assets of a Plan to effect such transfer or is an
insurance company purchasing a Class B Certificate with funds
contained in an insurance company general account or separate account,
having attached thereto an opinion of counsel satisfactory to the
Trustee, which opinion shall not be an expense of either the Trustee
or the Trust Fund, addressed to the Trustee, to the effect that the
purchase or holding of such Class B Certificate will not result in the
assets of the Trust Fund being deemed to be "plan assets" and subject
to the prohibited transaction provisions of ERISA and the Code and
will not subject the Trustee to any obligation in addition to those
expressly undertaken in this Agreement or to any liability.
With respect to a Class B Certificate that is a Book-Entry Certificate, the
representations contained in clause (i) above shall be deemed to have been made
to the Trustee by the transferee's (including an initial acquiror's) acceptance
of such Certificate or beneficial interest therein. Notwithstanding anything
else to the contrary herein, any purported transfer of a Class B Certificate or
beneficial interest therein to or on behalf of an employee benefit plan subject
to ERISA or to the Code or a person acting on behalf of a Plan or using the
assets of a Plan to effect such transfer or to an insurance company purchasing
with funds from a general account or separate account not exempt pursuant to
PTCE 95-60 without the delivery to the Trustee of an opinion of counsel
satisfactory to the Trustee as described in clause (ii) above shall be void and
of no effect.
The Class B Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class B Certificate in a smaller minimum denomination
representing any remaining portion of the Original Class B Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Class B Certificates are exchangeable for new Class B
Certificates of authorized denominations evidencing the same aggregate
principal amount, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Trustee may require payment of a sum sufficient to cover any tax or
governmental charges payable in connection therewith.
Prior to due presentation of this Class B Certificate for transfer,
the Trustee, the Certificate Registrar and any of their respective agents may
treat the Person in whose name this Class B Certificate is registered
D-3
<PAGE> 106
as the owner hereof for the purpose of receiving distributions and for all
other purposes, and neither the Trustee, the Certificate Registrar nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement or the
maturity or liquidation of the last Receivable and the disposition of all
property held as part of the Trust. The Seller or the Servicer, or any
successor to the Servicer, may, at its option, purchase the corpus of the Trust
at a price specified in the Agreement, and such purchase of the Receivables and
other property of the Trust will effect early retirement of the Certificates;
however, such right of purchase is exercisable only on a Distribution Date
following the last day of the month in which the Pool Balance is 10% or less of
the Original Pool Balance.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Class B Certificate shall not entitle the Holder hereof to any benefit under
the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class B Certificate to be duly executed.
Dated: July 24, 1996 TOYOTA AUTO RECEIVABLES 1996-A
GRANTOR TRUST
By: BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By:
--------------------------------
Authorized Officer
This is one of the Certificates referred to in the within-mentioned
Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Officer
D-4
<PAGE> 107
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_________________________________________________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
_________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
______________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
*
---------------------------------
Signature Guaranteed:
*
--------------------------------
__________________________
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
D-5
<PAGE> 108
EXHIBIT E
FORM OF CLASS C CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE
MADE UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN ACCORDANCE WITH SECTION
5.03 OF THE AGREEMENT REFERRED TO HEREIN AND (B) IS MADE (1) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (2) IS SOLD OR TRANSFERRED IN
TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER
APPLICABLE STATE LAW, (3) TO THE SELLER OR (4) TO A PERSON WHO THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE ACT. IN THE EVENT THAT A TRANSFER HEREOF IS TO BE MADE
OUTSIDE OF THE PRIVATE OFFERINGS, RESALES AND TRADING THROUGH AUTOMATIC
LINKAGES SYSTEM OF THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., THE
PROSPECTIVE TRANSFEREE WILL BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
SATISFACTORY IN FORM AND SUBSTANCE TO THE TRUSTEE AND THE SELLER TO THE EFFECT
THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE ACT OR ANY
APPLICABLE STATE SECURITIES LAWS.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AND THE CLASS B CERTIFICATES AS DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE REPRESENTS TO THE SELLER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS
NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), OR A PERSON ACTING ON BEHALF OF A PLAN OR USING THE
ASSETS OF A PLAN TO EFFECT SUCH PURCHASE AND IS NOT AN INSURANCE COMPANY
PURCHASING SUCH CERTIFICATE OR INTEREST FROM FUNDS IN A GENERAL ACCOUNT OR
SEPARATE ACCOUNT (WITH CERTAIN LIMITATIONS) OR (2) DELIVERS AN OPINION OF
COUNSEL, IN EACH CASE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.03 OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE OR A PERSON ACTING ON
BEHALF OF A PLAN OR USING THE ASSETS OF A PLAN TO EFFECT SUCH PURCHASE OR TO AN
INSURANCE COMPANY FOR AMOUNTS IN A NON-EXEMPT INSURANCE COMPANY GENERAL ACCOUNT
OR SEPARATE ACCOUNT WITHOUT
E-1
<PAGE> 109
DELIVERING THE OPINION OF COUNSEL DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
E-2
<PAGE> 110
TOYOTA AUTO RECEIVABLES 1996-A GRANTOR TRUST
7.35% ASSET BACKED CERTIFICATE, CLASS C
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of retail installment
sale contracts secured by the new and used automobiles and light duty
trucks financed thereby and sold to the Trust by Toyota Motor Credit
Receivables Corporation. The Final Scheduled Distribution Date is
July 20, 2001.
(This Certificate does not represent an interest in or obligation of
Toyota Motor Credit Receivables Corporation, Toyota Motor Credit
Corporation or any of their respective affiliates)
NUMBER R-C1 CUSIP 892319 AD6
$9,430,000.00
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a Nine
Million FOUR HUNDRED THIRTY THOUSAND DOLLAR ($9,430,000.00) nonassessable,
fully-paid, fractional undivided interest in the Toyota Auto Receivables 1996-A
Grantor Trust (the "Trust") formed by Toyota Motor Credit Receivables
Corporation, a California corporation (the "Seller"). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of July 1, 1996 (the
"Agreement") among the Seller, Toyota Motor Credit Corporation, as Servicer,
and Bankers Trust Company, as trustee (the "Trustee"). A summary of certain of
the pertinent provisions of the Agreement is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued
under the Agreement and designated as "Toyota Auto Receivables 1996-A Grantor
Trust 7.35% Asset Backed Certificates, Class C" (the "Class C Certificates").
Also issued under the Agreement are Certificates designated as "Toyota Auto
Receivables 1996-A Grantor Trust 6.30% Asset Backed Certificates, Class A"
(the "Class A Certificates") and "Toyota Auto Receivables 1996-A Grantor Trust
6.50% Asset Backed Certificates, Class B" (the "Class B Certificates" and,
together with the Class A Certificates and the Class C Certificates, the
"Certificates"). The Class B Certificates and Class C Certificates are
subordinated to the Class A Certificates, and the Class C Certificates are
subordinated to the Class B Certificates, in each case to the extent described
in the Agreement. The aggregate undivided interest in the Trust evidenced by
all Class C Certificates is 1.2500400%. This Class C Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class C Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The property of the Trust includes, among other things, a pool of
retail installment sale contracts (the "Receivables") for the new and used
automobiles and light duty trucks financed thereby (the "Financed Vehicles"),
certain monies due under the Receivables on and after the Cutoff Date, security
interests in the Financed Vehicles, certain bank accounts and the proceeds
thereof, proceeds from claims on physical damage, credit life and disability
insurance policies covering the Financed Vehicles, the Receivables or the
related Obligors, an assignment of the Seller's rights under the Receivables
Purchase Agreement and the right of the Seller to receive the proceeds of any
Dealer Recourse relating to the Receivables.
Under the Agreement, there will be distributed on the twentieth day of
each month or, if such day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on August 20, 1996, to the Person
in whose name this Class C Certificate is registered at the close of business
on the last calendar day immediately preceding the related Distribution Date
or, if Definitive Certificates are
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issued, the last day of the month immediately preceding the month of such
distribution (each, a "Record Date"), such Class C Certificateholder's
percentage interest in an amount equal to the Class C Distributable Amount for
such Distribution Date actually distributed, together with any outstanding
Class C Interest Carryover Shortfall and any outstanding Class C Principal
Carryover Shortfall, all to the extent and as more specifically set forth in
the Agreement.
Distributions on this Class C Certificate will be made by the Trustee
by check or money order mailed to the related Class C Certificateholder of
record in the Certificate Register without the presentation or surrender of
this Class C Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Class C Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class C Certificate at the office or agency maintained for
that purpose by the Trustee in the Borough of Manhattan, The City of New York.
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer or any of their respective affiliates. Under no
circumstances shall Bankers Trust Company in its individual capacity be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under the Agreement or the
Certificates. Each of the Agreement and this Certificate has been executed and
delivered by Bankers Trust Company, not in its individual capacity but solely
as trustee of the Trust. Each of the representations (other than the
representations and warranties of the Trustee set forth in Section 9.14),
undertakings and agreements made by Bankers Trust Company in the Agreement is
made on the part of the Trust and intended not as a representation, undertaking
or agreement by Bankers Trust Company in its individual capacity, but is made
and intended for the purpose of binding only the Trust. The Certificates are
limited in right of payment to certain collections and recoveries respecting
the Receivables and the monies on deposit in the Reserve Fund, all as more
specifically set forth in the Agreement. A copy of the Agreement may be
examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Seller, the Servicer and the Trustee with the consent of the
Holders of Certificates evidencing not less than 51% of the Voting Interests of
each Class of Certificates acting together as a single Class (but excluding for
purposes of such calculation and action all Certificates held by the Seller,
the Servicer or any of their affiliates). Any such consent by the Holder of
this Class C Certificate shall be conclusive and binding on such Holder and on
all future Holders of this Class C Certificate and of any Class C Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Class C Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Class C Certificate is registrable in
the Certificate Register upon surrender of this Class C Certificate for
registration of transfer at the offices or agencies maintained by the Trustee
in its capacity as Certificate Registrar, or by any successor Certificate
Registrar, in The City of New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Class C Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee.
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<PAGE> 112
No transfer of a Class C Certificate shall be made unless the Trustee
shall have received a representation letter from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
to the effect that:
(i) such transferee (A) is not an employee benefit plan or
arrangement subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code (a "Plan"), nor a person acting on behalf of
a Plan nor using the assets of a Plan to effect such transfer, and (B)
is not an insurance company purchasing a Class C Certificate with
funds contained in an "insurance company general account" or an
"insurance company separate account" (as defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) as to
which there is a Plan with respect to which the amount of such general
account's reserves and liabilities for the contracts held by or on
behalf of such Plan and all other Plans maintained by the same
employer (or affiliate thereof as defined in Section V(a)(1) of PTCE
95-60) or by the same employee organization exceed 10% of the total of
all reserves and liabilities of such general account (as such amounts
are determined under Section I(a) of PTCE 95-60) at the date of
acquisition; or
(ii) such transferee is a Plan or a person acting on behalf of
a Plan or using the assets of a Plan to effect such transfer or is an
insurance company purchasing a Class C Certificate with funds
contained in an insurance company general account OR separate account,
having attached thereto an opinion of counsel satisfactory to the
Trustee, which opinion shall not be an expense of either the Trustee
or the Trust Fund, addressed to the Trustee, to the effect that the
purchase or holding of such Class C Certificate will not result in the
assets of the Trust Fund being deemed to be "plan assets" and subject
to the prohibited transaction provisions of ERISA and the Code and
will not subject the Trustee to any obligation in addition to those
expressly undertaken in this Agreement or to any liability.
With respect to a Class C Certificate that is a Book-Entry Certificate, the
representations contained in clause (i) above shall be deemed to have been made
to the Trustee by the transferee's (including an initial acquiror's) acceptance
of such Certificate or beneficial interest therein. Notwithstanding anything
else to the contrary herein, any purported transfer of a Class C Certificate or
beneficial interest therein to or on behalf of an employee benefit plan subject
to ERISA or to the Code or a person acting on behalf of a Plan or using the
assets of a Plan to effect such transfer or to an insurance company purchasing
with funds from a general account or separate account not exempt pursuant to
PTCE 95-60 without the delivery to the Trustee of an opinion of counsel
satisfactory to the Trustee as described in clause (ii) above shall be void and
of no effect.
The Class C Certificates are issuable only in minimum denominations of
$250,000 and integral multiples of $1,000 in excess thereof (except for one
Class C Certificate in a larger or smaller minimum denomination representing
any remaining portion of the Original Class C Certificate Balance). As
provided in the Agreement and subject to certain limitations therein set forth,
Class C Certificates are exchangeable for new Class C Certificates of
authorized denominations evidencing the same aggregate principal amount, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Trustee may require
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
Prior to due presentation of this Class C Certificate for transfer,
the Trustee, the Certificate Registrar and any of their respective agents may
treat the Person in whose name this Class C Certificate is registered as the
owner hereof for the purpose of receiving distributions and for all other
purposes, and neither the Trustee, the Certificate Registrar nor any such agent
shall be affected by any notice to the contrary.
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<PAGE> 113
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement or the
maturity or liquidation of the last Receivable and the disposition of all
property held as part of the Trust. The Seller or the Servicer, or any
successor to the Servicer, may, at its option, purchase the corpus of the Trust
at a price specified in the Agreement, and such purchase of the Receivables and
other property of the Trust will effect early retirement of the Certificates;
however, such right of purchase is exercisable only on a Distribution Date
following the last day of the month in which the Pool Balance is 10% or less of
the Original Pool Balance.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Class C Certificate shall not entitle the Holder hereof to any benefit under
the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class C Certificate to be duly executed.
Dated: July 24, 1996 TOYOTA AUTO RECEIVABLES 1996-A
GRANTOR TRUST
By: BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By:
--------------------------------
Authorized Officer
This is one of the Certificates referred to in the within-mentioned
Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Officer
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<PAGE> 114
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_________________________________________________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
_________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
______________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
-------------------------------------
Signature Guaranteed:
-------------------------------------
__________________________
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
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<PAGE> 115
EXHIBIT F
FORM OF
REPRESENTATION LETTER
Toyota Auto Receivables 1996-A Grantor Trust
__% Asset Backed Certificates, Class [B][C]
I, [Name], hereby represent and warrant to Bankers Trust Company, as
trustee (the "Trustee") of the above-named trust, as follows:
1. I am [an officer of [Name of Transferee],] the proposed
transferee ("Transferee") of an Ownership Interest in a Class [B][C]
Certificate (the "Certificate") issued pursuant to the Pooling and Servicing
Agreement (the "Agreement") dated as of July 1, 1996, relating to the
above-referenced securities, each among Toyota Motor Credit Receivables
Corporation, as seller (the "Seller"), Toyota Motor Credit Corporation, as
servicer and the Trustee. Capitalized terms used but not defined herein shall
have the meanings ascribed thereto in the Agreement. [Transferee has authorized
me to make the following representations and warranties on behalf of
Transferee.]
2. The Transferee agrees to require a Representation Letter
substantially in the form of this Representation Letter from any Person to whom
the Transferee attempts to Transfer its interest in the Certificate and in
connection with any Transfer by a Person for whom the Transferee is acting as
nominee, trustee or agent. The Transferee will not Transfer its interest or
cause any interest to be Transferred to any Person that the Transferee knows
cannot truthfully complete such a Representation Letter.
3. CHECK APPROPRIATE BOX:
[ ] The Transferee (A) is not an employee benefit plan or
arrangement subject to Section 406 of ERISA or a plan subject
to Section 4975 of the Code (a "Plan"), nor a person acting on
behalf of a Plan nor using the assets of a Plan to effect such
transfer, and (B) is not an insurance company purchasing a
Class [B][C] Certificate or beneficial interest therein with
funds contained in an "insurance company general account" or
an "insurance company separate account" (as defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) as to which there is a Plan with respect to which the
amount of such general account's reserves and liabilities for
the contracts held by or on behalf of such Plan and all other
Plans maintained by the same employer (or affiliate thereof as
defined in Section V(a)(1) of PTCE 95-60) or by the same
employee organization exceed 10% of the total of all reserves
and liabilities of such general account (as such amounts are
determined under Section I(a) of PTCE 95-60) at the date of
acquisition; or
[ ] The Transferee is a Plan or a person acting on behalf of a
Plan or using the assets of a Plan to effect such transfer or
is an insurance company purchasing a Class [B][C] Certificate
with funds contained in an insurance company general account
or separate account, but has attached hereto an opinion of
counsel addressed to the Trustee and the Seller to the effect
that the purchase or holding of such Class [B][C] Certificate
will not result in the assets of the Trust Fund being deemed
to be "plan assets" and subject to the prohibited transaction
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<PAGE> 116
provisions of ERISA and the Code and will not subject the
Trustee to any obligation in addition to those expressly
undertaken in the Agreement or to any liability.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed this _____ day of __________________, 19_ .
-----------------------------------
Print Name of Transferee
[By:
-------------------------------
Name:
Title:]
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<PAGE> 117
EXHIBIT G
FORM OF LETTER OF REPRESENTATIONS
[Omitted]
G-1
