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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)
April 17, 1997
Toyota Motor Credit Receivables Corporation on behalf of the
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Toyota Auto Receivables 1997-A Grantor Trust
(Exact Name of Registrant as Specified in its Charter)
California 333-4336 Applied for
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(State of Incorporation) (Commission (I.R.S. Employer
File Number) Identification No.)
19001 South Western Avenue 90509
Torrance, California -----------
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(Address of Principal
Executive Offices)
Registrant's telephone number, including area code (310) 787-1310
No Change
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
On April 17, 1997, Toyota Motor Credit Receivables Corporation
("TMCRC") and Toyota Motor Credit Corporation ("TMCC") entered into that certain
Receivables Purchase Agreement (the "Receivables Purchase Agreement"), dated as
of April 1, 1997, 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. Also on April 17,
1997, 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, 1997, pursuant to which the Receivables, and
related property, were transferred to the Trustee on behalf of the Toyota Auto
Receivables 1997-A Grantor Trust and the Toyota Auto Receivables 1997-A Grantor
Trust issued the 6.45% Asset Backed Certificates, Class A, 6.60% Asset Backed
Certificates Class B and 6.80% Asset Backed Certificates, Class C (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).
The Underwriting Agreement between TMCC, TMCRC and the several
underwriters named therein pursuant to which the Offered Securities were
underwritten (the "Underwriting Agreement"), the Receivables Purchase Agreement
and the Pooling Agreement, in the forms in which they were executed, are being
filed hereby as Exhibits 99.5, 99.6 and 99.7.
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Item 7. Financial Statements; Pro Forma Financial Information and
Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
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99.5 Receivables Purchase Agreement dated as of April 1,
1997, between TMCC and TMCRC.
99.6 Pooling and Servicing Agreement dated as of April
1, 1997, among TMCRC, TMCC and Bankers Trust
Company.
99.7 Underwriting Agreement dated April 9, 1997, among
TMCRC, TMCC, Credit Suisse First Boston Corporation
and Lehman Brothers Incorporated, on their own
behalves and as representatives of the several
underwriters named therein.
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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.
May 2, 1996 TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION
By: /s/ Lloyd Mistele
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Name: Lloyd Mistele
Title: President
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Exhibit Index
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Exhibit Page
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99.5 Receivables Purchase Agreement dated as of April 1, 1997,
between TMCC and TMCRC.
99.6 Pooling and Servicing Agreement dated as of April 1, 1997,
among TMCRC, TMCC and Bankers Trust Company.
99.7 Underwriting Agreement dated April 9, 1997, among TMCRC,
TMCC, Credit Suisse First Boston Corporation and Lehman
Brothers Incorporated, on their own behalves and as
representatives of the several underwriters named therein.
</TABLE>
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EXHIBIT 99.5
Execution Copy
RECEIVABLES PURCHASE AGREEMENT
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
and
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
as Purchaser
Dated as of April 1, 1997
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TABLE OF CONTENTS
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Page
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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
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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
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RECEIVABLES PURCHASE AGREEMENT, dated as of April 1, 1997, 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 April 17, 1997.
"Cutoff Date" shall mean April 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 April 1, 1997 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 $o.
"Released Administrative Amount" means, with respect to a Distribution
Date and to an Administrative Receivable, the Deferred Prepayment, if any, for
such Administrative Receivable.
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"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;
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(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.
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:
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(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.
(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
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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
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.
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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 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.
(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
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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.
(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.
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(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 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.
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(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 $1,000 nor
more than $50,000 and, as of the Cutoff Date, an unpaid
principal balance of not less than $200 and not more than
$50,000; (D) each Receivable was originated before March 1,
1997; (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
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
9
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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 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.
10
<PAGE> 14
(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) $o 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 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,
11
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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 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.
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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.
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.
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SECTION 5.09 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 5.10 Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties signatory hereto, and the
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 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:
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(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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
By: /s/ George Borst
-----------------------------------
Name: George Borst
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
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SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- originals on file at the offices
of the Seller, the Purchaser and the Trustee
A-1
<PAGE> 1
EXHIBIT 99.6
Execution Copy
POOLING AND SERVICING AGREEMENT
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
Seller
and
TOYOTA MOTOR CREDIT CORPORATION,
Servicer
and
BANKERS TRUST COMPANY
Trustee
Dated as of April 1, 1997
______________
TOYOTA AUTO RECEIVABLES 1997-A GRANTOR TRUST
______________
<PAGE> 2
TABLE OF CONTENTS
DEFINITIONS
ARTICLE I
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Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
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 III
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
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Section 3.15. Reports to Certificateholders and Rating Agencies. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE IV
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 Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE V
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
ARTICLE VI
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
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ARTICLE VII
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
Servicer Not to Resign. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE VIII
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
ARTICLE IX
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
</TABLE>
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<TABLE>
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ARTICLE X
TERMINATION
Termination of the Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Optional Purchase of All Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE XI
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
Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Certificates Nonassessable and Fully Paid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
No Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
EXHIBITS
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>
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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.
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"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 1997-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
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<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 6.45% per annum.
"Class A Percentage" means 95.7498864%.
"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
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.
"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.
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<PAGE> 11
"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 6.60% per annum.
"Class B Percentage" means 2.7499559%.
"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 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 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).
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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 6.80% per annum.
"Class C Percentage" means 1.5001576%.
"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 Principal Carryover Shortfall
with respect to with respect to the immediately preceding 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
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<PAGE> 13
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 April 17, 1997.
"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.
"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 April 1, 1997.
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"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 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
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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 Property.
"Determination Date" means, with respect to any Distribution Date, the
second preceding Business Day.
"Distribution Date" means, with respect to a Collection Period, the
fifteenth calendar day of the following calendar month, or if such day is not a
Business Day, the next succeeding Business Day, commencing May 15, 1997.
"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;
(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;
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(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 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
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(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 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.
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"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 April 15, 2002.
"Final Scheduled Maturity Date" shall mean o.
"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 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.
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"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%.
"Original Class A Certificate Balance" means $722,871,000.00.
"Original Class B Certificate Balance" means $20,761,000.00.
"Original Class C Certificate Balance" means $11,325,553.40.
"Original Pool Balance" means $754,957,553.40.
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"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).
"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.
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"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 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.
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"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 $5,662,181.66.
"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
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.
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"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 a 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 $5,662,181.66, 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 $5,662,181.66; 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, 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.
"Total Servicing Fee" means the sum of the Basic Servicing Fee and the
Supplemental Servicing Fee.
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"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
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
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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.
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 1997-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;
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(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 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
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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.
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
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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 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.
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(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.
(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.
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(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.
(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 $1,000.00 nor more than $50,000.00 and an unpaid
principal balance, as of the Cutoff Date, of not less than $100.00 nor more
than $50,000.00.
(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
March 1, 1997.
(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.
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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
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
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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 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
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and obligations of the Servicer under Section 8.02. The Trustee may terminate
the Servicer's appointment as custodian of 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
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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 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 15, 2002,
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
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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.
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
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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.
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.
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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 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, 1997, 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.
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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, 1997, a report concerning their
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
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.
In the event such firm requires the Trustee to specify or agree to the
procedures performed by such firm, the Servicer shall direct the Trustee in
writing to so specify or agree. It is understood and agreed hereby that the
Trustee will deliver such letter of agreement in conclusive reliance upon the
written direction of the Servicer and that the Trustee will make no independent
inquiry or investigation as to, and shall have no obligation or liability in
respect of, the sufficiency, validity or correctness of such procedures for any
purpose.
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)
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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 and The Stock
Exchange of Hong Kong Limited, any paying agent appointed to make payments in
Luxembourg, to the offices of Bankers Trust Luxembourg S.A., 14 Boulevard F.D.
Roosevelt, L-2450, Luxembourg and to the offices of Lehman Brothers Inc. at One
Pacific Place, 88 Queensway, 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 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.
ARTICLE IV
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Accounts.
(a) The 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.
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(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).
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
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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 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,
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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
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
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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 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;
(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;
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(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 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
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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 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 tax 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
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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.
(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;
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(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 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.
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(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;
(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;
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(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 specifies in the aggregate the amounts
set forth in clauses (i), (ii), (iv) and (v) above for such calendar year and,
if Definitive Certificates have been issued, that reiterates the amounts set
forth in clauses (i), (ii), (iv) and (v) above for each Distribution Date
during the preceding 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.
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, Class B Certificates and Class C Certificates shall be
issuable in minimum denominations of $1,000 and integral multiples 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.
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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.
(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.
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(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" (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
or Class C Certificate with funds contained in an insurance company
general 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, the Seller or the Servicer to any obligation in
addition to those expressly undertaken in this Agreement or to any
liability.
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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) 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 Certificates 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.
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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 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
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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 Certificate) 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;
(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.
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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 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, 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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(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 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
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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;
(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
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(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 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).
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
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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,
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
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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
(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.
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(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.
(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.
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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.
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
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(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 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
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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
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
(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
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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 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
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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;
(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
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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 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
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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 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.
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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 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
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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. 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
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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
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
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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 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
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<PAGE> 76
(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.
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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<PAGE> 77
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 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.
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<PAGE> 78
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.
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
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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 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.
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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 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
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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.
(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
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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. 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.
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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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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/ George Borst
------------------------------------------------
Name: George Borst
Title: Senior Vice President and General Manager
BANKERS TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By: /s/ Lillian Peros
------------------------------------------------
Name: Lillian Peros
Title: Assistant Treasurer
<PAGE> 85
EXHIBIT A
FORM OF SERVICER'S CERTIFICATE
PURSUANT TO SECTION 3.10 OF
POOLING AND SERVICING AGREEMENT
<TABLE>
<S> <C> <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
Contracts Amount
--------------------------------------------------------------
(i)31-60 Days Delinquent 0 0.00% $0,000.00
(ii)61-90 Days Delinquent 0 0.00% $0,000.00
(iii)Over 90 Days Delinquent 0 0.00% $0,000.00
</TABLE>
A-1
<PAGE> 86
<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> 87
<TABLE>
<S> <C> <C>
III. POOL BALANCES AND PORTFOLIO INFORMATION
- -----------------------------------------------
Beginning of Period End of Period
------------------- -------------
A. Balances and Principal Factors
1. Total Pool Balance $0.00 $0.00
2. Total Pool Factor 0.0000000 0.0000000
3. Class A Certificate Balance $0.00 $0.00
4. Class A Principal Factor 0.0000000 0.0000000
5. Class B Certificate Balance $0.00 $0.00
6. Class B Principal Factor 0.0000000 0.0000000
7. Class C Certificate Balance $0.00 $0.00
8. Class C Principal Factor 0.0000000 0.0000000
9.
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
Contracts Amount
---------------------------------------------------------------
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 Period 0 ***
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> 88
I hereby certify that the servicing report provided is
true and accurate to the best of my knowledge
______________________________________________
Principal Accounting Officer
A-4
<PAGE> 89
EXHIBIT B
FORM OF TRUSTEE'S CERTIFICATE
PURSUANT TO SECTION 9.02 OR 9.03
OF THE POOLING AND SERVICING
AGREEMENT
BANKERS TRUST COMPANY, as trustee (the "Trustee") of the Toyota Auto
Receivables 1997-A Grantor Trust created pursuant to the Pooling and Servicing
Agreement (the "Agreement"), dated as of April 1, 1997, 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> 90
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 1997-A GRANTOR TRUST
6.45% 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
April 15, 2002.
(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 AF1
NUMBER 1 $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 1997-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 April 1, 1997 (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 1997- A Grantor
Trust 6.45% Asset Backed Certificates, Class A" (the "Class A Certificates").
Also issued under the Agreement are Certificates designated as "Toyota Auto
Receivables 1997-A Grantor Trust 6.60% Asset Backed Certificates, Class B"
(the "Class B Certificates") and "Toyota Auto Receivables 1997-A Grantor Trust
6.80% 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 95.75%. 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> 91
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 fifteenth day of
each month or, if such day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on May 15, 1997, 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> 92
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> 93
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: April 17, 1997 TOYOTA AUTO RECEIVABLES 1997-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> 94
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> 95
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 (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 WITHOUT DELIVERING
THE OPINION OF COUNSEL DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
D-1
<PAGE> 96
TOYOTA AUTO RECEIVABLES 1997-A GRANTOR TRUST
6.60% 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
April 15, 2002.
(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 1 CUSIP 892319 AG9
$20,761,000.00
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a TWENTY
MILLION SEVEN HUNDRED SIXTY ONE DOLLAR ($20,761,000.00) nonassessable,
fully-paid, fractional undivided interest in the Toyota Auto Receivables 1997-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 April 1, 1997 (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 1997-A Grantor
Trust 6.60% Asset Backed Certificates, Class B" (the "Class B Certificates").
Also issued under the Agreement are Certificates designated as "Toyota Auto
Receivables 1997-A Grantor Trust 6.45% Asset Backed Certificates, Class A"
(the "Class A Certificates") and "Toyota Auto Receivables 1997-A Grantor Trust
6.80% 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 2.75%. 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 fifteenth day of
each month or, if such day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on May 15,1997, to the Person in
whose name this Class B 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
D-1
<PAGE> 97
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> 98
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" (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, 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, the Seller or the Servicer 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 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 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.
D-3
<PAGE> 99
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.
D-4
<PAGE> 100
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: April 17, 1997 TOYOTA AUTO RECEIVABLES 1997-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-5
<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.
D-6
<PAGE> 102
EXHIBIT E
FORM OF CLASS C CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AND 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 (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 WITHOUT DELIVERING
THE OPINION OF COUNSEL DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
E-1
<PAGE> 103
TOYOTA AUTO RECEIVABLES 1997-A GRANTOR TRUST
6.80% 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
April 15, 2002.
(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 1 CUSIP 892319 AH7
$11,325,000.00
THIS CERTIFIES THAT CEDE & CO. is the registered owner of an ELEVEN
MILLION, THREE HUNDRED TWENTY-FIVE THOUSAND DOLLAR ($11,325,000.00)
nonassessable, fully-paid, fractional undivided interest in the Toyota Auto
Receivables 1997-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 April 1,
1997 (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 1997- A Grantor
Trust 6.80% Asset Backed Certificates, Class C" (the "Class C Certificates").
Also issued under the Agreement are Certificates designated as "Toyota Auto
Receivables 1997-A Grantor Trust 6.45% Asset Backed Certificates, Class A"
(the "Class A Certificates") and "Toyota Auto Receivables 1997-A Grantor Trust
6.60% Asset Backed Certificates, Class B" (the "Class B Certificates" and,
together with the Class A Certificates and the Class B Certificates, the
"Certificates"). The Class C Certificates and Class B 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 1.50%. 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
E-2
<PAGE> 104
on May 15, 1997, 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
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
E-3
<PAGE> 105
more new Class C Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
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" (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, 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, the Seller or the Servicer 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 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 as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class C Certificate in a 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.
E-4
<PAGE> 106
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.
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.
E-5
<PAGE> 107
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: April 17, 1997 TOYOTA AUTO RECEIVABLES 1997-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
E-6
<PAGE> 108
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.
E-7
<PAGE> 109
EXHIBIT F
FORM OF
REPRESENTATION LETTER
Toyota Auto Receivables 1997-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 April 1, 1997, 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" (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
F-1
<PAGE> 110
[ ] 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,
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 provisions of ERISA
and the Code and will not subject the Trustee, the Seller or
the Servicer 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:]
F-2
<PAGE> 111
EXHIBIT G
FORM OF LETTER OF REPRESENTATIONS
[Omitted -- on File with Issuer and Trustee]
G-1
<PAGE> 1
EXHIBIT 99.7
Execution Copy
TOYOTA AUTO RECEIVABLES 1997-A GRANTOR TRUST
$722,871,000.00 6.45% ASSET BACKED CERTIFICATES, CLASS A
$20,761,000.00 6.60% ASSET BACKED CERTIFICATES, CLASS B
$11,325,553.40 6.80% ASSET BACKED CERTIFICATES, CLASS C
UNDERWRITING AGREEMENT
----------------------
April 9, 1997
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Lehman Brothers Inc.
Three World Financial Center
200 Vesey Street
New York, New York 10285
As Joint Global Coordinators,
Bookrunners and Representatives of the
several Underwriters
Ladies and Gentlemen:
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") $722,871,000.00
aggregate principal amount of 6.45% 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") $20,761,000.00
aggregate principal amount of 6.60% Asset Backed Certificates, Class B (the
"Class B Certificates") and to each of the several underwriters named in
Schedule I-C hereto (the "Class
<PAGE> 2
C Certificates Underwriters", and together with the Class A Certificates
Underwriters and the Class B Certificates Underwriters, the "Underwriters")
$11,325,553.40 aggregate principal amount of 6.80% Asset Backed Certificates,
Class C (the "Class C Certificates", and, together with the Class A
Certificates and the Class B Certificates, the "Certificates") of the Toyota
Auto Receivables 1997-A Grantor Trust (the "Trust"). Credit Suisse First
Boston Corporation and Lehman Brothers Inc. will act as representatives for the
Class A Certificates Underwriters and will be the sole Class B Certificates
Underwriters and Class C Certificates Underwriters, and in such capacities
shall herein be the "Representatives". Each Certificate will represent a
fractional undivided interest in the Trust. The assets of the Trust will
include, among other things, a pool of retail installment sale contracts (the
"Receivables") secured by the new and used automobiles and light duty trucks
financed thereunder (the "Financed Vehicles") and certain monies due or to
become due thereunder on or after April 1, 1997 (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 April 1, 1997 between TMCC and the Seller. As of
the Cutoff Date, the Receivables had an aggregate principal balance of
$754,957,553.40, the Class A Certificates in the aggregate will represent an
approximate 95.75% undivided interest in the Trust, equal to $722,871,000.00 of
the aggregate principal balance of the Receivables, the Class B Certificates in
the aggregate will represent an approximate 2.75% undivided interest in the
Trust, equal to $20,761,000.00 of the aggregate principal balance of the
Receivables and, the Class C Certificates in the aggregate will represent an
approximate 1.50% undivided interest in the Trust, equal to $11,325,553.40 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 April 1, 1997, 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
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
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<PAGE> 3
registration statement") has been declared effective, either (i) any
additional registration statement (the "additional registration
statement") relating to the 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
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
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 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
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<PAGE> 4
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
Certificates (the "Prospectus Supplement") and the form of prospectus
(the "Base Prospectus") relating to the Registered Securities
(including the Certificates), as first filed with the Commission in
connection with the offering and sale of the 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" or "Prospectus" shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") on
or before the Effective Date of the Registration Statement or the
issue date of the Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue
date of the Prospectus, as the case may be, deemed to be incorporated
therein by reference; any reference in this Agreement to documents,
financial statements and schedules and other information which is
"contained", "included", "stated", "described" or "referred to" in the
Registration Statement or the Prospectus (and all other references of
like import) shall be deemed to mean and include all such documents,
financial statements and schedules and other information which is or
is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
(ii) (A) On the Effective Date of any Registration
Statement whose Effective Time is prior to the execution and delivery
of this Agreement, each such Registration Statement conformed, (B) on
the date of this Agreement each such Registration Statement conforms
and (C) on any related Effective Date subsequent to the date of this
Agreement, each such Registration Statement will conform, in all
material respects with the requirements of the Act and the rules and
regulations of the Commission promulgated under the Act (the "Rules
and Regulations"), and at such times did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the time of the filing of the Prospectus
pursuant to Rule 424(b) or, if no such filing is required, at the
Effective Date of the Additional Registration Statement that includes
the Prospectus, on the date of this Agreement and at the Closing Date
(as such term is defined in Section 3 hereof), the Prospectus will
conform in all material respects to the requirements of the Act and
the Rules and Regulations, and does not include, or will not include,
any untrue statement of a material fact, nor does the Prospectus omit,
nor will it omit, any material fact, necessary in order to
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<PAGE> 5
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The two immediately preceding
sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon and in conformity
with 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, 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.
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<PAGE> 6
(vii) The Seller has caused to be filed with the Commission
on April 8, 1997 the Current Report on Form 8-K (as amended) with
respect to the Term Sheet dated April 7, 1997 relating to the
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 (i) 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, (ii) the Class B
Certificates Underwriters agree, severally and not jointly, 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 and (iii) the Class C Certificates Underwriters agree, severally and not
jointly, to purchase from the Seller, the respective principal amounts of Class
C Certificates set forth opposite the names of the Class C Certificates
Underwriters in Schedule I-C hereto. The Certificates are to be purchased at a
purchase price equal to (i) in the case of the Class A Certificates, 99.783028%
of the aggregate principal amount thereof plus accrued interest at the Class A
Pass Through Rate from (and including) April 15, 1997, to (but excluding) the
Closing Date, (ii) in the case of the Class B Certificates, 99.610818% of the
aggregate principal amount thereof plus accrued interest at the Class B Pass
Through Rate from (and including) April 15, 1997, to (but excluding) the
Closing Date, and (iii) in the case of the Class C Certificates, 99.542572% of
the aggregate principal amount thereof plus accrued interest at the Class C
Pass Through Rate from (and including) April 15, 1997, to (but excluding) the
Closing Date.
The Class A Certificates will initially be represented by four
certificates respectively representing $200,000,000.00, $200,000,000.00,
$200,000,000.00 and $122,871,000.00 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 the entire aggregate principal amount of Class B
Certificates registered in the name of Cede & Co., the nominee of DTC (the
"Class B DTC Certificates"). The Class C Certificates will initially be
represented by one certificate representing $11,325,000.00 aggregate principal
amount of Class C Certificates registered in the name of Cede & Co., the
nominee of DTC (the "Class C DTC Certificates", and together with the Class A
DTC Certificates and the Class B DTC Certificates, the "DTC Certificates") and
one definitive certificate representing $553.40 aggregate principal amount of
Class C Certificates registered in the name of the Seller. 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
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<PAGE> 7
certificates evidencing the DTC 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 April 17, 1997,
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 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
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 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.
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<PAGE> 8
(c) If, at any time when a prospectus relating to the
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, 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 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 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.
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<PAGE> 9
(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 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
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 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, without
the prior written consent of the
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<PAGE> 10
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 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
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 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,
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if the Effective Time is prior to the execution and delivery of this
Agreement but the Effective Time of the Additional Registration
Statement is subsequent to such execution and delivery, and (ii)
"Prospectus" shall mean the prospectus with respect to the
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
Certificates, or makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the 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 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
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emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the 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, 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 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
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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 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 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
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<PAGE> 14
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 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 Certificates to the Underwriters.
(xi) The 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.
(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.
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<PAGE> 15
In addition, such counsel shall state that such counsel has
participated in conferences with the officers and other representatives of TMCC
and the Seller, representatives of the independent public accountants therefor
and the Underwriters, at which the contents of the Registration Statement and
the Prospectus and related matters were discussed and, although such counsel is
not passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained therein and has not made
any independent check or verification thereof, during the course of such
participation (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
against TMCRC or in connection with the origination and
servicing of the Receivables by TMCC which are required to be
disclosed in the Registration Statements, other than those
disclosed therein, (B) there are no legal or governmental
proceedings to which TMCC is a party or to which any of its
property is subject which are not described in TMCC's Annual
Report on Form 10-K for the year ended September 30, 1996, or
its Quarterly Reports for the quarter ended December 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.
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<PAGE> 16
(iv) To such counsel's knowledge (A) no default
exists in the due performance or observance by TMCC of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it may be
bound, which default would have a material adverse effect on
the financial condition, earnings, business affairs, business
prospects, properties or results of operations of TMCC and its
subsidiaries considered as one enterprise, and (B) other than
this Agreement, and the Basic Documents and the corresponding
agreements in connection with the Toyota Auto Receivables
1995-A Grantor Trust and the Toyota Auto Receivables 1996-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 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
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<PAGE> 17
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.
(3) The favorable opinion, dated the Closing Date, of
Sheppard, Mullin, Richter & Hampton, special California counsel to the
Seller and TMCC, in form and scope satisfactory to the Representatives
and their counsel, to the effect that, assuming the due authorization,
execution and delivery thereof by the parties thereto, each of the
Receivables in the form attached to such opinion constitutes the
valid, binding and enforceable agreement of the parties thereto; and
such Receivables comply as to content and form with all applicable
state laws and federal disclosure laws relating to consumer credit,
including without limitation, consumer protection laws.
(4) Reliance letters relating to each opinion rendered to
either Rating Agency by (A) Andrews & Kurth L.L.P and (B) Alan F.
Cohen, Esq.
(5) 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.
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<PAGE> 18
(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 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.
(6) 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
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of (i) the Seller in which such officers shall state that, to the best
of their knowledge after reasonable investigation, (A) the
representations and warranties of the Seller in this Agreement are
true and correct, (B) the Seller has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, (C) no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to
the best of their knowledge, are contemplated by the Commission, (D)
the Additional Registration Statement, if any, satisfying the
requirements of Rule 462(b)(1) and Rule 462(b)(3) was filed in
accordance with Rule 462(b) (including payment of the applicable
filing fee in accordance with Rule 111(a) or Rule 111(b) under the
Act) prior to the time the Prospectus was printed or distributed to
the Underwriter and (E) subsequent to the date of this Agreement,
there has been no material adverse change in the condition, financial
or otherwise, or in the business affairs or business prospects of the
Seller except as set forth or contemplated in the Prospectus, and (ii)
TMCC in which such officers shall state that, to the best of their
knowledge after reasonable investigation, (A) the representations and
warranties of TMCC in this Agreement are true and correct, (B) TMCC
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder and (C) subsequent to the
date of this Agreement there has been no material adverse change in
the condition, financial or otherwise, or in the business affairs or
business prospects of TMCC which would materially and adversely 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 "A2"
by Moody's and at least "A" by Standard & Poor's.
(h) The Class C Certificates shall be rated at least
"Baa3" by Moody's and at least "BBB" by Standard & Poor's.
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 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
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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 liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus or any amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Seller 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, the Class B Certificates Underwriters or the Class C Certificates
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Underwriters, as applicable, on the other hand, from the offering of the
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, 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 the offering (before
deducting expenses) received by the Seller bear to the total underwriting
discounts and commissions received by the Class B Certificates Underwriters and
the relative benefits received by the Seller and TMCC on the one hand and the
Class C 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 C 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 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.
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Section 8. Default of Underwriters. If any Class A Certificates
Underwriter or Underwriters default in their obligations to purchase
Certificates hereunder and (i) 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, (ii) 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 and (iii) the aggregate principal amount of Class C
Certificates (in the case of the Class C Certificates Underwriters) that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Class C Certificates, the
Representatives may make arrangements satisfactory to the Seller and TMCC for
the purchase of such Class A Certificates, Class B Certificates or Class C
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, the non-defaulting Class B Certificates Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder,
to purchase the Class B Certificates, and the non-defaulting Class C
Certificates Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Class C 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, the Class B Certificates or
the Class C Certificates, as the case may be, and arrangements satisfactory to
the Seller and TMCC for the purchase of such 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
Certificates. If this Agreement is terminated pursuant to Section 8 hereof or
if for any reason the purchase of the 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(i) hereof
and the respective obligations of the Seller, TMCC and the Underwriters
pursuant to Section 7 hereof shall remain in effect. If the purchase of the
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
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out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the 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 Credit Suisse
First Boston Corporation, 11 Madison Avenue, New York, New York 10010,
Attention: Asset-Finance 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: George Borst -- 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.
Section 13. Representations and Warranties of Underwriters. With
respect to any offers or sales of the 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 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
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 Certificates or possession or
distribution of any offering material in relation to the 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 Certificates or distribute any such offering
material in or from any jurisdiction except under
23
<PAGE> 24
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
Certificates other than those contained or incorporated by reference in the
Prospectus for the 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 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 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 Certificates
other than with respect to 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, prior to the
expiry of the period of six months from the Closing Date, will not offer or
sell any Certificates to persons in the United Kingdom, except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted 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;
(g) Each Underwriter has complied and will comply with all
applicable provisions of the Financial Services Act 1986 ("FSA") with respect
to anything done by such Underwriter in relation to the 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 it in
connection with the issue of the Certificates, to a person who is of a kind
described in Article 11(3) of the FSA (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom such document may otherwise lawfully be
issued or passed on.
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.
24
<PAGE> 25
Section 15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
25
<PAGE> 26
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/ George Borst
-------------------------------------------------
Name: George Borst
Title: Senior Vice President and General Manager
The foregoing Underwriting Agreement
is hereby confirmed and accepted, as
of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Thomas T. Smith
-------------------------------------
Title: Director
LEHMAN BROTHERS INC.
By: /s/ William E. Lighten
-------------------------------------
Title: Managing Director
Acting on behalf of themselves and as
the Representatives of the several
Underwriters
<PAGE> 27
Schedule I-A
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Class A Certificates
----------- --------------------
<S> <C>
Credit Suisse First Boston Corporation . . . . . . . . . . . . . . . . . $ 263,935,000.00
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 263,936,000.00
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,000,000.00
J.P. Morgan & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,000,000.00
Merrill Lynch, Pierce, Fenner & Smith Incorporated . . . . . . . . . . . $ 30,000,000.00
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . . . . . $ 30,000,000.00
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,000,000.00
Bear, Stearns & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . . . $ 15,000,000.00
First Chicago Capital Markets, Inc. . . . . . . . . . . . . . . . . . . . $ 15,000,000.00
UBS Securities LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 15,000,000.00
----------------------
Total . . . . . . . . . . . . . . . . . . . . . $ 722,871,000.00
======================
</TABLE>
27
<PAGE> 28
Schedule I-B
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Class B Certificates
----------- --------------------
<S> <C> <C>
Credit Suisse First Boston Corporation. . . . . . . . . . . . . . . . . . $ 10,380,000.00
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 10,381,000.00
----------------------
Total . . . . . . . . . . . . . . . . . . . . . $ 20,761,000.00
======================
</TABLE>
28
<PAGE> 29
Schedule I-C
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Class C Certificates
----------- --------------------
<S> <C> <C>
Credit Suisse First Boston Corporation. . . . . . . . . . . . . . . . . . $ 5,662,553.40
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5,663,000.00
----------------------
Total . . . . . . . . . . . . . . . . . . . . . $ 11,325,553.40
======================
</TABLE>
29
